The Gordian Knot: Regulatory Relationship and Legal Education

Published date01 July 2017
Date01 July 2017
Subject MatterArticles
The Gordian Knot: Regulatory
Relationship and Legal Education
Paul Maharg1
Symbolic control, through its pedagogic modalities, attempts to shape and distribute forms of consciousness, identity and
Regulators must facilitate and encourage, not just accredit and monitor.3
This article is a version of themes presented at a plenary lecture given at the 2016 Legal Education
Conference at the Chinese University of Hong Kong. Regulation of legal education is becoming
increasingly important as regulation becomes more complex and intrusive in educational design
and practice. As a consequence of pressures upon regulators from government, consumer groups,
educational institutions, the profession and other stakeholders, there has been an increase in the
number and size of reports and reviews as regulators and accreditors seek to position and re-position
their practices within the regulatory field. In that field, regulatory relationship is one aspect of the
regulation of legal education that is insufficiently researched and understood. This article seeks to
explore models by which the relationship between regulators and legal educators can be improved.
It begins by summarizing some of the regulatory literature on legal education, and suggesting that
a complexity theory approach in safety regulation could be used in legal education. An example of
regulatory relationship between educational institution and regulator will be described and aspects
analyzed; in the final section, I outline possible ways forward for regulators and legal educators.
Legal Education Regulation
Regulation is a complex, socially pervasive eld of activity in industrialized economies. It takes many
forms, and while regulation theory and practice is not uniform, there is a certain convergence around
1 Osgoode Hall Law School, York University, Toronto, Canada.
2 Basil Bernstein & Joseph Solomon, ‘Pedagogy, Identity and the Construction of a Theory of Symbolic Control’: Basil Bernstein
Questioned by Joseph Solomon, 20 Brit. J. Soc. Educ. 265, 269 (1999).
3 Julian Webb et al., Setting Standards: The Future of Legal Services Education and Training Regulation in England and Wales
(SRA, BSB, IPS, 2013)
Asian Journal of Legal Education
4(2) 79–94
© 2017 The West Bengal National
University of Juridical Sciences
SAGE Publications
DOI: 10.1177/2322005817700185
Corresponding author:
Paul Maharg, Osgoode Hall Law School, York University, Ignat Kaneff Building, 4700 Keele Street, Toronto,
Ontario M3J, 1P3, Canada.
80 Asian Journal of Legal Education 4(2)
regulatory domains that regulators, particularly those of professional activities, are engaged in. These
domains often include the control of risk, the creation and management of compliance regimes, the
protection of consumer interests and the monitoring of performance and outcomes cultures.4 At a meta-
level, it includes the management of the processes of regulation and deregulation itself by which a
regulator’s activities are authorized and implemented.5 Recently, a group of regulatory strategies have
come to be adopted as alternatives to more adversarial command-and-control regimes.6 These include
risk-based regulation, meta-regulation, principles-based regulation, outcomes-focused regulation (OFR)
and strategies of enrolment, among others.7 Such forms of regulation are in competition with each other
and, as Casey and Scott pointed out quoting Black, are responses to an underlying legitimacy dilemma:
it ‘is simply not possible to have complete legitimacy from all aspects of [the regulated] environment’.8
In this tangled, contested field, and in place of a conservative view of regulation-as-oversight merely,
I argue first that regulatory theory and practices applied to legal education should go beyond the basics
of control of risk, management of compliance and protection of consumer interest to the development of
regulatory relationship between stakeholders that will improve educational theory and practice. Second,
I argue that four years on from the Legal Education and Training Review (LETR) report and the
articulation in that report of a ‘shared space’ approach to legal education regulation, we need that
approach more urgently than before. In developing it, we need to take account of multi- and inter-
disciplinary approaches, and interjurisdictional approaches that consist of not just global best practices
but the complex weave of global with local circumstances, local regulatory codes and local practices.
Taking account of the cognitive, organizational and social contexts of regulation in this way helps us to
understand what may succeed locally, and why. I give an extended example of this in development
and practice from professional legal practice and regulation in Scotland. Finally, I shall argue that
transformation of regulatory relationship cannot take place unless we have an informational and data
structure that is commensurate with our ambitions for regulation in legal education. Throughout, there is
an implicit argument for interdisciplinarity. I argue elsewhere in depth that interdisciplinarity is both
conceptual and practical in nature.9 Too often we treat education and law in separate silos, without
recognizing the effect that one has on the other, and how our distinctive modes and discourses are formed
from jurisdictional cultures—which include regulation. We also do not sufficiently recognize the
advantages of interdisciplinarity in opening up the fractures in disciplines so as to enable expansive
4 In Webb et al, supra note 16 at 87, we adopted the definition of risk-based regulation from Black and Baldwin as ‘the adoption
of regulatory strategies that are based on “an evidence-based means of targeting the use of resources and of prioritizing attention
to the highest risks in accordance with a transparent, systematic, and defensible framework.”’ Julia Black & Robert Baldwin.
(2010). Really responsive risk-based regulation. Law & Policy, 32, at 181.
5 In the Legal Education and Training Report, we dealt with many such issues, and my views, on both regulated and unregulated
sectors of the profession, have not changed since we wrote the report. Id. at 264.
6 See Regulation: After Command and Control, in thE human FacE oF Law: ESSayS in honour oF donaLd harriS 45–73
(Clarendon Press, 1997).
7 For an account of these and other approaches, and their performance within the financial services industry in the recent global
financial crisis, see Julia Black, Paradoxes and Failures: ‘New Governance’ Techniques and the Financial Crisis, 75 mod. L. rEv.
1037–63 (2012).
8 Donal Casey & Colin Scott, The Crystallization of Regulatory Norms, 38 J. L. & Socy 76, 92 (2011), citing Julia Black,
Constructing and Contesting Legitimacy and Accountability in Polycentric Regulatory Regimes, 2 rEg. & govErnancE 137, 153
9 See, for example, Paul Maharg, Sea-change, 18 intL J. LEgaL ProF. 139–64 (2012); PauL maharg, tranSForming LEgaL
Education: LEarning and tEaching thE Law in thE EarLy twEnty-FirSt cEntury (Ashgate Publishing, 2007).

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