21 The Education and Qualification of Civil Lawyers in Historical Perspective: From Jurists and Orators to Advocates, Procurators and Notaries

HANS W BAADE (AUSTIN)

INTRODUCTION

One feature of legal education is common to all civil law systems: the monopoly position that the university occupies (at least with respect to the first part of a future lawyer’s training).

It was not, however, always so. For one thing, universities as now under­stood, with distinct faculties of law, did not come into being until the twelfth century. Even more to the point, professional legal instruction by officially approbated legal experts (iurisperiti) can be traced to the fifth century AD and perhaps to the fourth century as well, but classical Roman law (approximately 150 BC-250 AD) developed independently of formal law “schools” and of for­malized academic qualifications.^[506]

Taking late Republican Rome as the tempus and locus a quo, an attempt will be made to sketch slightly over two millennia of the history of the professional education and qualification of civil lawyers. Obviously, no claim can be made to completeness. The sources referred to should, however, facilitate further research.

ROMAN ORIGINS

A Current self-image

Contributors to the present Festschrift are hardly unaware that knowledge of the Roman legal professions is based on fragmentary sources, rather out of pro­portion to more recent writings especially about the classical period.^[507] The spar­sity of surviving contemporaneous documentation apparently did not, however, diminish the impact of the heritage of the past (or perhaps more accurately, of its scholarly and literary reconstructions) on the self-image of the legal profes­sion in civil law countries.

Sometimes, the Roman law legacy might appear to be mainly symbolic. Take, for instance, the legal professions in Scotland. Their focal point is Parliament House in Edinburgh, housing the Court of Session, the Advocates’ Library, and the Signet Library. The judges of the Court of Session (the equivalent of the High Court and the Court of Appeal in London) are also called Senators of the College of Justice. They rise to judicial office through the Faculty of Advocates, which is the advocates’ bar as well as their bar association. Its (elected) presid­ing officer is the Dean of Faculty. The postal address of advocates is, without more, “Advocates’ Library, Parliament House, Edinburgh”. That library, estab­lished between 1679 and 1682 by the Faculty of Advocates, has a superb Roman law collection.^[508]

The Signet Library serves the leading body of Edinburgh solicitors, profes­sionally organized since 1594 as the Society of Writers to the Signet. “Writers” as used here corresponds to scribae in classical or even in pre-classical Roman law, for “signet” as here employed does not refer to the ornate hand-drawn sym­bols at the base of medieval notarial instruments (later replaced by notarial seals)^[509] but to the seal used to authenticate the summons in civil matters before the Court of Session. The Writers to the Signet developed out of the group of men who originally acted as scribes in the office of the Royal Secretary who kept the Signet.⁵ The Scottish equivalent of the American district attorney (an office not known as such in England) is called the procurator fiscal—a title borrowed from that of late medieval advocates appointed to represent the Pope and bish­ops in litigation.⁶

Roman law, however, figures only occasionally in the judgments of the Court of Session.⁷ The current Lord President (chief justice) of that court is a distin­guished and widely published scholar of classical Roman law,⁸ but scholarship in Roman law is hardly a regular stage in the cursus honorum leading to Scottish judicial office.

Why, then, call the High Court a College of Justice, its judges Senators, the bar a Faculty, its chairman a Dean, and the leading body of solicitors of the capital city, Writers to the Signet? The answer lies, in good part, in Roman insti­tutions and traditions as perceived in more recent times.

Classical Rome

Classical Rome knew no professional judges. Its leading lawyers were the jurists whose writings shaped the civil law and are preserved in Justinian’s Digest, and the orators whose forensic performances survive mainly through Cicero’s detailed accounts of his own forensic efforts. Cicero’s Brutus is mainly a sketch of the leading forensic orators; Pomponius offers a thumbnail sketch of the lead­ing jurists.⁹ These lists are almost mutually exclusive, for, in the classical period, jurists mainly disdained forensic oratory.¹⁰ Nor, apparently, did they have a

⁵ See, above all, R K Hannay, “The Early History of the Scottish Signet”, in HL MacQueen (ed), The College of Justice: Essays by R. K. Hannay (Edinburgh, Stair Society, 1990) supplementary vol. 1, 273. See also J S Muirhead, “Notes on the History of the Solicitors’ Profession in Scotland”, (1952) 68 Scottish Law Review 25 and 59, at 31, and R D Carswell, “The Origins of the Legal Profession in Scotland”, (1967) 11 American Journal of Legal History 41.

⁶ As to the procurator fiscal, see G May, “Der Fiskalprokurator am Gericht des Mainzer Stuhles Konrad von Fritzlar”, (1996) 113 SZ (Kanonistische Abteilung) 82. The Roman procurator fisci, on the other hand, was an administrative official, charged with the administration of the fiscus in the provinces or with the collection of taxes.

⁷ See most recently Stirling v. Bartlett, 1993 SLT 763, at 767 (O), quoting Inst. 2.1.20 on alluvion, and generally A Rodger, “The Use of the Civil Law in Scottish Courts”, in DL Carey Miller and R Zimmermann (eds), The Civilian Tradition in Scottish Law: Aberdeen Quincentenary Essays (Berlin, 1997) 225.

⁸ Lord Rodger of Earlsferry; see supra n.7 and, e.g., A Rodger, “Paul’s Edictal Commentary on the Lex Aquilia”, (1990-1992) 25-27 IJ 329, and idem, “Roman Gifts and Rain Water”, (1984) 100 LQR 77. These references are readily multipliable.

⁹ Cicero, Brutus; D. 1.2.35-53 (Pomp. lib. sing. ench.).

¹⁰ This is usually attributed to the causa Curiana, described in Cicero, Brutus, 38-42 and 51-3, where the oratory of Lucius Crassus defeated Quintus Scaevola, a leading jurist. high opinion of the legal knowledge of forensic orators. “Nihil hoc ad ius: ad Ciceronem”, is what Cicero reports his friend Aquilius Gallus (a jurist) to say when someone brought him a question of fact.^[510] (Cicero, in turn, belittled the competence of eminent jurists as compared to that of persons with “continued practice and application” in specialized fields of public importance, such as water law.)^[511]

It should be kept in mind that this internecine rivalry occurred at the top of the legal profession. Both jurists and orators belonged to the senatorial and (lat­terly) also the equestrian classes of society. Litigants could be represented in court by any honest man,^[512] including a freedman, acting as a procurator (hence “proctor” in English admiralty and in ecclesiastical courts more than a milen- nium later). Notaries were as yet simply the scriveners who wrote instruments known as tabellae.

About 250 AD, Roman jurists stopped writing authoritative texts on the civil law—perhaps, as has been suggested recently by the Jubilar of this Festschrift, because everything that could be said on that subject had already been said.^[514] In any event, the late Empire saw the emergence of organized bars at major impe­rial courts, called consortia of advocati or togati, limited in number and pro­tected by imperial privilege—including, incidentally, preferred admission of sons of advocates into what had become a closed profession.^[515] Admission to a consortium of advocates at an imperial court had to be earned nevertheless by demonstration of professional qualification as well. This included, by 460 AD at the latest, successful demonstration that the candidate was instructed in the pro­fessional knowledge of the law—peritia iuris instructus.^[516]

Where, then, was such knowledge obtained? Once again, caution is indicated by the sparsity of sources, but it seems reasonably clear that by the fifth century at the latest, professional instruction in law was obtainable at law schools in Rome, Constantinople and (for a time most prominently) in Beryt (Beyrouth).^[517] Unlike the jurists of the classical period, those teaching at the law schools of the late Empire do not appear to have been creative legal authors and authorities, but they were authorities, never the less. For one thing, as iuris periti or doc- tores, they passed on the professional qualifications of advocates. Secondly (but perhaps not secondarily) some of them ranked at the pinnacle of official society. Thus, we find Leontius (a iuris peritus) among the six professors at Constantinople who received the title of comes primi ordinis from the Emperors Theodosius and Valerian.

Perhaps not too much should be read into this, for advocates as well as pro­fessors attained the rank of vicar after twenty years’ service, which was the age of mandatory retirement for the former.^[519] Nevertheless, a highly influential civil law tradition in much more recent times is traceable to the few surviving records relating to fifth-century advocates and professors, most of which have just been cited. Advocates become members of the legal profession only upon demon­strating sufficient legal knowledge, acquired from professors at law schools (now law faculties). Both advocates and professors are members of a learned profession, but professors (who teach and examine prospective advocates) are more learned, and they claim (and they usually are accorded) a much higher rank in the social and official hierarchy. The fifth-century vicar presided over a diocese, as does the bishop whose title when sitting judicially is ordinarius—as is that of the German full professor (and, as “Ordinary”, of Scottish Court of Session judges of first instance).

This picture can be drawn differently by emphasizing the traditions of the col­legia (and Faculties) of advocates with their learned discourses, colourful tradi­tions, and even more colourful gowns on ceremonial occasions, especially in Romance countries. It is also defective in at least three major respects. First, just like the classical jurists of old, the professors did not teach either administrative or criminal law, the two most important areas of law in Roman everyday life.^[520] Secondly, neither professors nor advocates took any noticeable interest in the practicalities of judicial administration in the lower courts. Thirdly, the jurists’, advocates’, and law professors’ almost inborn distaste for the living law admin­istered in lower courts was all but irreversibly reinforced by the language factor. The Western Empire spoke Latin, which was the language of the classical Roman law; the Eastern Empire spoke Greek, which was also the language of the New Testament. Academic lawyers in Beryt and Constantinople were of course fluent in Greek, but they taught in Latin from books of authority written by Roman jurists in that language.^[521]

To extrapolate: students at present-day law schools in the USA are not unlikely to have a sense of empathy when contemplating the travails of their pre­decessors in fifth-century Beryt and Constantinople. Yet they might keep in mind that they are being trained, in English, for a unified legal profession in a country where this is the language of the law. Moreover, an acknowledged goal of their law school education is to equip them with sufficient proficiency to qual­ify immediately for practice, tested through a single examination administered by a state bar association composed in major part of current practitioners. As will be seen presently, civil law traditions are different in these respects, and at least some of these differences are traceable to the last days of the Roman Empire.

One direct consequence of the privileged status of Latin and of law school- taught learned lawyers at a few administrative centres was the entrenchment of the division of the forensic legal profession into a “higher” and a “lower” branch: advocates at the imperial courts, and procurators at the lower ones. The procurators (originally the personal agents or representatives of an absent liti­gant) became pleaders in lower courts, and their inferior status was reinforced by their need to consult advocates learned in the (Roman) law (and fluent in Latin) in complicated cases.^[522]

On the non-litigious side, changes in the law of evidence and in the formal requirements for important transactions (especially donations) combined with the need for documentation by a largely illiterate and monolingual population to enhance the importance of the tabellio, who turned from a scrivener into a notary. Although the notarial profession as such was not organized into a guild until the Byzantine period, Justinian enacted no less than three novellae consti­tutiones to regulate the notaries’ art of passing public instruments in the appro­priate form and manner.^[523] His other main contribution to the development of the legal profession (which was to bear fruit elsewhere and much later) was the minute regulation of the law school curriculum, divided into five one-year seg­ments with specific texts assigned to each.^[524]

FROM BOLOGNA TO THE FRENCH REVOLUTION

Ecclesiastical courts, advocates, and notaries

Shortly after Justinian’s codification (533-563 AD) knowledge of learned Roman law based on familiarity with the teachings of classical Roman lawyers became extinct in the Western Empire (mainly today’s Italy, France, and Spain). Roman legal forms and the Latin language survived in Italian municipal admin­istration, notarial practice, and especially the Church—to what extent is still debated.²⁶ The “second life” of Roman law, starting with the rediscovery of the Digest in the late eleventh century and law teaching at Italian universities in the twelfth, found the notarial profession in place. Law teachers at the universities quickly identified with the Roman jurists, emulating the responsa of the latter with consulta, or learned opinions, to counsel in litigated cases as well.²⁷

The “learned” lawyers acquired their legal knowledge, in Latin, in multi-year university courses following Justinian’s curriculum but now including canon law. It was this latter legal system which provided the first coherent scheme of hierarchical juridical organization and legal procedure. A recent study places the emergence of a practising profession of university-trained advocates in eccle­siastical courts in the latter part of the thirteenth century, with emphasis on the year 1274,²⁸ which also is the date of enactment of the first French Royal Ordinance relating to advocates.²⁹

It is likely that this profession, and ecclesiastical court practice generally, provided the prevailing model for civil lawyers. Surprisingly, at least to the

des antecesseurs (Leiden, 1970) 11-13 and 61-3. As to the ephemeral eleventh-century effort of Emperor Constantine IX to reestablish academic legal education, see the sources cited infra n.79.

²⁶ See especially U Gualazzini, “L’insegnamento del diritto in Italia durante l’Alto Medievo”, in Ius Romanum Medii Aevi, Pars I,5b a a (Milan, 1974); P Frezza, “L’influsso del diritto romano Giustinianeo nelle formule e nella prassi in Italia”, in Ius Romanum Medii Aevi, Pars I, 2c ee (Milan, 1974) (with discussion of notaries at 99-108); and most recently C M Radding, The Origins of Medieval Jurisprudence, Pavia and Bologna 850—1150 (New Haven, 1988).

²⁷ H Gehrke, Die privatrechtliche Entscheidungsliteratur Deutschlands (Frankfurt, 1975) 167-213, lists well over one hundred collections of consilia by professors at German universities alone.

²⁸ Constitutiones a Gregorio Papa Decimo in Concilio Lugdunensi, ch. XIX: de postulando (November, 1274) in Sacrorum Conciliorum Nova et Amplissima Collectio (J D Mansi (ed), 1767; reprint 1961), vol. 24, 81 and 93-4. See J A Brundage, “The Rise of Professional Canonists and the Development of the Ius Commune”, (1995) 112 SZ (Kanonistische Abteilung) 26, at 42-3. See also, by the same author, “The Medieval Advocate’s Profession”, (1988) 6 Law and History Review 439, and idem, “The Profits of the Law: Legal Fees for University-Trained Advocates”, (1988) 32 American Journal Legal History 1, and for further medieval canon law background, J J Hogan, Judicial Advocates and Procurators, An Historical Synopsis and Commentary, Catholic University of America, Canon Law Studies No. 133 (Washington, 1941) 32-51.

²⁹ “Ordonnance sur les fonctions et honoraires des avocats”, 23 October 1278, Recueil General des Anciennes Lois Franfaises (Isambert (ed.)) vol. 1, 652. J P Royer, Histoire de la Justice en France (Paris, 1995) 145-53, describes the temporal parallel between the Council of Lyon and the Royal Ordinance as a “pure coincidence” (at 152). A textual comparison suggests otherwise; see text infra at n.38. uninitiated, it did so even in England, where the admiralty bar was divided, well into the nineteenth century, into advocates educated in the civil law at Oxford or Cambridge and proctors (a contraction of procurators) or pleaders of a more humble practical background. This parallel should not be stretched too far, however, because the English notary (although clearly of canon or civil law progeny) was not a major factor in this scheme (or, for that matter, in English law generally).^[525]

In continental civil law countries, on the other hand, the notarial profession prospered. This was so although (or perhaps because) it became divided, func­tionally but not necessarily personally, into judicial and non-judicial notaries. The former were (and are still today) professionally qualified notaries serving ad hoc as clerks of court in ecclesiastical proceedings.^[526] The latter became, in effect, quasi-public officials in private practice when their “public instruments” became entitled to “fides publica” in the same manner as judicial documents, and when territorial sovereigns entrusted them with the task of serving as repos­itories of the public instruments recorded in their protocols.^[527] Admission as a notary in most civil law countries was strictly restricted by number and thus, in effect, the conferral of a territorial monopoly or quasi-monopoly. Frequently tied to the purchase of office or the right of presentation of a successor or both, this led with some frequency to the passing of notarial office from father to son (or son-in-law.)^[528]

Central to this consolidation of the notarial profession was the position of the notary as a trustworthy recorder of judicial proceedings, and as a skilled and reliable draftsman and keeper of other public instruments.^[529] The quasi-public nature of a lucrative office held for life and transferable for profit but subject to forfeiture for malfeasance went far to assure reliability. Notarial skills were

The Education and Qualification of Civil Lawyers 221 acquired through apprenticeship,^[530] increasingly in combination with some form of instruction in the ars notariae. This term, traceable to thirteenth-century Italy,^[531] is instructive. Even where and when university study was a prerequisite for the professional qualification of notaries, instruction in the ars notariae was typically the task of the Arts Faculties or of specialized academies.

“Learned” advocates and “professional” procurators

The drafting of pleadings in litigious cases, which had been a function of the tabellio in the later Roman Empire, was incompatible with the notion of impar­tial documentation, central to the notarial profession. On the continent, that task fell to the procurators, and in the English ecclesiastical and admiralty courts, to the proctors. In Scotland, remarkably, the present profession of solic­itor is traceable directly to that of notary (which went into an eclipse due to the Reformation), with the result that the notarial function is presently a minor attribute of Scottish solicitors.^[532]

A convenient point of departure for the medieval and early modern history of the forensic legal professions is 1274, when within a few weeks of each other, King Philip III of France issued an ordinance on the functions and fees of advo­cates and Pope Clement X, a constitution de postulando.^[533] We may well doubt that the virtually simultaneous enactment of these measures was purely coinci­dental, for they both addressed, in parallel and occasionally identical language, the twin evils of the espousal of unmeritorious causes and the exacting of exces­sive legal fees by advocates. Moreover, they both sought to combat these evils by conditioning forensic practice by advocates on an annual oath to represent only just causes, and they both prescribed maximum fees for advocates (thirty pounds of Tours in the Royal courts; twenty in the ecclesiastical ones).

There was, however, a fundamental difference between these two enact­ments: the King dealt only with the professional conduct of advocates, while the Pope addressed procurators as well. They, too, had to take a like oath every year on pain of being denied “procurationis in judicio licentiam”. Furthermore, the

maximum legal fee chargeable by procurators was twelve pounds per cause, or 60 per cent of that allowable to advocates.

Pope Clement’s 1274 constitution documented that by the late thirteenth cen­tury, ecclesiastical advocates and procurators were different forensic profes­sions, and that advocates had the senior calling. So it was to be for much of the next seven centuries wherever the “bar” was divided. Why, then, did King Philip’s ordinance fail to deal with this “lesser” (branch of the) legal profession? The explanation is, quite simply, that at the time, litigants had to appear in per­son in French royal courts unless representation by procurator was permitted by special act of grace. It was only in 1483 that King Charles VIII approved the peti­tion of the Estates General that plaintiffs as well as defendants in civil cases be permitted to “plaider par procureur sans grace”.^[534] The history of the “lower” branch of the secular French forensic legal profession dates from that placet.^[535]

Although generalization is difficult, it seems reasonably clear that until the mid-eighteenth century, only advocates were “learned” in the sense that they had studied Roman and canon law, in Latin, at a university law faculty for the requisite number of years, and had received the degree of licenciate, bachelor, or master. Whether (and if so, when and where) such university degrees attested to genuine knowledge in Roman and canon law remains doubtful, for the quality of legal education differed widely from time to time and from place to place. Montesquieu, for instance, received his licence from the University of Bordeaux in 1708 after three years’ study of law there. One year later, a report by the gov­ernment auditor general or legal educator at Bordeaux drew a dismal picture indeed:^[536]

“The Dean was as active as a man of ninety-eight could be expected to be, whilst his son, a professor of law, was presumably approaching a modern retirement age but remained an unknown quantity for he was a regular absentee. A student was required to read the lectures of another professor who was blind, whilst it was alleged that one of the few professors of demonstrable talent, the professor of French law, Blaise Fresquet, had delegated his functions to an Irishman. More believably, the report records that instead of teaching two courses of ninety minutes each per day Fresquet lectured for a single hour only. Although there were four chairs of Roman law (one of which was held simonically by Fresquet as the Chair of French law was not endowed) there was apparently only a single copy of the Corpus Juris Civilis in the University!”

Never the less, as the saying went, dat Justinianus nobilitas. A historical tradi­tion going back to the Glossators and Commentators served to give university law graduates the self-image of “nobilitas acquired by an education in law”. By the late sixteenth century, there emerged “the division between �avocat’ and �procureur’ in France, for which parallels can be found in every European coun­try; between �abogado’ and �procurador’ in Spain, between �dottori collegiati’ and �procuratori’ in Italy”.^[537] This division reflected differences in social status as well as in professional education and training.^[538] Procurators did not, as a rule, have an academic qualification but acquired their professional skills through prescribed periods of apprenticeship (in France ten years, but usually less elsewhere). It was thus not unusual for a procurator (or a proctor) to seek “opinion of counsel” from an advocate in litigation before courts where repre­sentation by advocates was not required.

Clearly, then, law study at a university served once again as an essential element of status within the legal profession, just as it had in the later Roman Empire. But what about the distinction, within the “upper” branches of that profession, between jurists and orators? Here, there is some support for the view that in the late sixteenth century (and at least in the self-image of university professors of law) the classical Roman distinction between jurists (now professors) and forensic ora­tors (now advocates) had been revived. Both were expert jurists (iurisperiti), but only the former were jurisconsults. To quote Cujacius (1522-1590), a leading six­teenth-century humanist at the University of Bourges in France:

“Skill in the law is required of tabelliones... but they are to be distinguished from stu­diosi iuris. To be skilled in the law and to be a studiosi iuris is by no means the same thing, for tabelliones (as I have said), advocati, pragmatici, formularii, tabularii are skilled in the law but are not studiosi iuris: the latter designation is applicable to the interpreters or the consultants of the law (iuris interpretis consultisque)”.^[539]

The jurisconsult differed from the advocate not only in his occupation (typi­cally that of a professor of law at a university) but also by his academic forma­tion which went beyond the licenciate, to the attainment of the degree of doctor utriusque iuris,^[540] made known to the world of learning through the publication of a dissertation. The consultus in his title referred to his activity as a writer of opinions on litigious questions for advocates as well as (mainly institutional) clients, often published later in collections of consilia—the direct descendants of the responsa collections of classical Roman jurists.^[541] This meant that a juriscon­sult of any stature was quite knowledgeable in the law actually prevailing locally in derogation of Roman and canon law: the statuta of the cities, the enactments of local sovereigns, and the coutumes of customary law areas. It is not surpris­ing, therefore, that Bartolus (the preeminent fourteenth-century commentator of Roman law) was also, almost certainly due to his consultation practice, the first systematic author on the conflict of laws.^[542]

It would be quite wrong, therefore, to suppose that the iuris consulti sv. inter­preti who taught Roman and canon law at the universities were unfamiliar with the law actually prevailing in their localities. Yet until about the mid-eighteenth century, they did not teach that law to their students. Especially after the con­solidation of territorial sovereignty and the proliferation of princely legislation following the Peace of Westphalia (1648), this meant that the law faculties were increasingly teaching dead secular law in a dead language and—more to the point—that the rulers, the bench, the bar, and the pubic could not rely on the legal proficiency of “mere” university law graduates.

This basic flaw in the civil law scheme of legal education escaped massive reaction “from above” until the latter part of the eighteenth century, when many (but not all) rulers at long last directed the university law faculties to teach the law of the land in the vernacular. The lateness of this reaction is explained in good part by two factors. First, university-educated advocates were relieved of handling procedural details before the higher courts because this became, by about the mid-sixteenth century, the task of a separate legal profession, the procurators. These lawyers (roughly comparable to attorneys and solicitors in England) qualified for practice through a lengthy apprenticeship, and had the monopoly of filing pleadings and motions in higher courts as well as the right to practice without supervision by advocates in the lower ones. Secondly, advo­cates, too, went through a form of apprenticeship (although a shorter one) before becoming fully qualified for practice.^[543]

It will be noted that this scheme of a divided profession had historical as well as linguistic parallels in the late Roman Empire. There clients could be (and in places like Roman Egypt of necessity had to be) represented by procuratores in the lower courts while law school-trained togati had the right of audience at the higher ones. Indeed, advocates were well aware of this historical parallel, which was demonstrated to the public by their entitlement to wear long capes and other ornaments denied to the procurators. Usually organized professionally in associations called Order, College, and the like, advocates saw themselves as a learned profession free from technical concerns, devoted to the science of the law, and entitled to privilege for that reason (as well as more directly by virtue of social status superior to that of procurators).^[544]

CIVIL LAWYERS IN THE MODERN STATE

The French Revolution: break with the past

The system just sketched was contrary to two central notions of the French Revolution: that of egalite, which was opposed to privilege, and that of popular sovereignty, which was regarded as incompatible with the existence of corps inter­mediaries between the people and their elected representatives. (In the following, it should be kept in mind that the French Revolution directly affected much of continental Europe outside of France: Belgium, the Netherlands, Germany west of the Rhine, and parts of Switzerland as well as Italy.) Feudalism and with it, the old judicial order, fell in France in the “Night of 4 August” (1789).⁵0 In September of the year following, the National Assembly decreed that “The men of law, previ­ously called advocates, who can no longer form any order or corporation, will not have any special costume in their duties”. The profession of procureurs was abol­ished three months later, to be followed in January 1791, with the creation of that of avoues, who filled essentially the same functions but did not enjoy a monopoly of forensic representation, then opened to citizens at large as well as to “hommes de loi”.^{[545] [546] On 15 September 1793, finally, the Convention abolished the universi­ties, including their law faculties.[547] Revolutionary France had broken with a civil law tradition traceable at least to the late Roman Empire—or so it seemed before Napoleon assumed power some six years hence.}

Early in the nineteenth century, legal instruction became available again at two private law schools in Paris.^[548] Eight days before the effective date of the Civil Code, on 13 March 1804, the French system of qualification for judicial office and the practice of law and, in conjunction therewith, of legal education, was recast along lines familiar to modern civil lawyers. Central to this scheme was the requirement of the study of law, at state-operated schools (later facul­ties) of law, for a specific period of years depending upon the career chosen, doc­umented by state examinations and degrees. The profession of advocate was recreated. Advocates and avoues were required to acquire an academic legal education as thus provided, and their admission to practice was further contin­gent upon the completion of a probationary period (stage).^[549] The impact of this monopolization by the State of legal education and of qualification for judicial office and the practice of law on the rest of Europe is indicated by the fact that law schools were set up in cities outside of Paris, this including Brussels, Koblenz, and Turin.^[550]

The “French model”

Soon thereafter, the law schools were integrated, as faculties of law, into the French (public) university system as recreated in 1806, and a few years hence, the “French model” of modern civil law was complete. Civil, criminal, and commer­cial law, as well as civil and criminal procedure, were codified in the “Cinque Codes”. Legal education at State university law faculties was mandatory for judges, prosecutors, advocates and procurators (avoues) while professional com­petence of advocates and procurators was assured further by the requirement of a probationary period (stage) before full qualification. This scheme was made attractive to tradition-minded lawyers through the restoration of Orders of Advocates (largely deprived, however, of their autonomy), and more impor­tantly, to the “Revolutionary” political class by the assurance that the State would now teach the new law at its own institutions—and by a new method.^[551]

That new method was, in essence, the teaching of the texts of the new law by rote pursuant to a detailed uniform curriculum prepared by the Ministry of Education.^[552] Enforced rigorously throughout the Empire by government inspec­tors, this scheme of education all but physically infused the law of the “Cinque Codes” into the minds (and perhaps also the hearts) of generations of French judges, prosecutors, and lawyers. The successful implementation of the conti­nental, bureaucratic model of judicial administration by a university-trained judiciary sitting in multi-layer, multiple-panel, multiple-judge courts would have been all but impossible without this standardized process of mass produc­tion of “new” lawyers.

The impact of instruction by rote in accordance with Ministry-designed national curricula on the quality of law faculties and on the style of legal rea­soning was another matter. To take the latter first: exposition of the text of the Cinque Codes in the sequence prescribed by the Ministry was quintessentially exegetic, and the dominant French style of legal reasoning until the latter part or the nineteenth century has accordingly been called the “ecole de I’exegese”.^[553]

As to quality, the judgment of independent outside observers appears to have been essentially negative. Legal instruction in France was a matter of consider­able interest in Belgium, where the Code civil continued to be in effect since Napoleon’s rule. In 1854, a Belgian statesman reported to his Minister of the Interior that the effect of the virtual limitation of law teaching to enacted law had been that there had been none of the “prodigious scientific movement” in France then characteristic for German universities: “France has some juriscon­sults who are good practitioners and logicians; it has no learned juriscon­sults”.^[554]

This negative assessment gains considerable support from the fact that a French translation of Zachariae’s System des franzosischen Zivilrechts soon became the leading civil law treatise in France.^[555] The French Civil Code was the “law of the land” on the left bank of the Rhine and in the Grand Duchy of Baden (including Heidelberg, where Zachariae taught). French professors, however, could not follow his sequence of analysis rather than that of the Code civil. The Ministry denied them leave to do so. The curriculum set by the Ministry had to be followed, day by day, in the prescribed order throughout the country, and that was that.^[556]

This is not to say, of course, that the French codifications of the early nine­teenth century, in conjunction with the standardization and bureaucratization of the system of instruction, were as disastrous for the quality of legal learning as Justinian’s reforms had been thirteen centuries earlier. Napoleon is reported to have said “mon code est perdu” when presented the first treatise on the Civil Code, but unlike Justinian, he did not inhibit commentators. Outside the class­room and especially in the law journals, learned law flourished, and eventually, it returned to the universities, without, however, changing their primary func­tion as centres for the indoctrination in the “new” French law.^[557]

Germany: the Judge as prototype

German universities, on the other hand, survived the French Revolution and the Napoleonic period with little interruption. The University of Berlin, founded almost simultaneously with the reestablishment of universities in France, entrenched the principles of “Lehr-und Lernfreiheit” in the German academic system—the very opposite of teaching by rote. Although courses on Prussian law and (as we saw) French law were given at Berlin and Heidelberg where they were the “law of the land”, by far the most important legal system taught there and throughout Germany was modern Roman law. This applied as such, and was the primary system, only in a small number of states. Thus, German law students were free to “hear” (to attend class) on whatever legal subject when­ever taught, but the offering was likely to consist in large part of courses remote from the law then in effect in their home states or law districts.

Indeed, in Prussia (which was to emerge as the nucleus of the German Empire after unification 1867-1871), the administrative and judicial authorities dis­couraged extensive academic instruction on the Prussian codification of 1794 at the expense of a thorough education in modern Roman law. The law of the land, they felt, could come at a later stage of legal education, when the judiciary was in charge.^[558] It should be kept in mind that German private law was not uni­fied until 1900. Until the judiciary laws of 1877-1879, rules governing qualifica­tion for legal careers, too, differed from state to state and, in the case of Prussia, even from one bank of the Rhine to the other. In the words of a recent observer:

“In the first half of the nineteenth century, the practicing bar in Germany presented a motley spectacle. There was a unified legal profession in Prussia, Austria, Saxony, and several of the smaller Thuringian states, and in these states procurators had disap­peared; in the Prussian Rhineland, a bifurcated profession consisted of an unlimited number of university-trained, office-practicing advocates, complemented by Advokatanwalte appointed in fixed number with a monopoly on courtroom pleading; elsewhere the old system of a fixed number of procurators and an unlimited number of advocates prevailed; and in Ostfriesland in Hannover, the old Prussian justice com­missar still persisted.”^[559]

This “motley spectacle” disappeared with the implementation of the judiciary laws of 1877-1879, which established a uniform system of judicial organization and legal qualification in Germany.^[560] The latter incorporated, in the main, the Prussian system of legal education and qualification as it had emerged from late

The Education and Qualification of Civil Lawyers 229 eighteenth-century reforms—subject, however, to one fundamental change. The numerus clausus for membership in the practising bar was replaced by the “free” admission of those qualified to practise. Bismarck’s concession of the Liberal demand for “free” advocacy was the price enacted by Parliament for the acceptance of the traditional Prussian scheme of legal education and qualifica­tion.^[561]

Central to this scheme was the notion of law students as “seedlings of the State”: as judges, prosecutors, higher civil servants and (last and least by design) as practising lawyers. The prototype was the career judge. His training (and consequently, that of other candidates for entry into the legal professions) started with study at an approved law faculty for a minimum period of three years, followed by the “first” State law examination. If successful, the candidate then entered State service as a provisional civil servant, receiving practical train­ing and instruction in the judiciary, the prosecutor’s office, and government departments. Initially, the training period consisted of two segments: the Auskultatur, preceded by a relatively lenient examination, and the Referend- ariat, accessible to those who passed a more stringent one. The Askultatur was abolished in 1870, but the basic structure of the “practical” phase was main­tained. It concluded with the second (originally the third), or “great” State examination. Successful candidates could then apply for entry into the judicial, the prosecutorial, civil service careers, or the private practice of law.^[562]

Four features of this system require special mention. First and foremost, the judiciary was initially in full control of the examination system, and it tena­ciously as well as successfully defended this central position when the composi­tion of examination commissions was expanded to include law professors and (much later) practising lawyers.^[563] Secondly, the sheer duration of the training phases, in combination with the lack of financial assistance and indeed the ini­tial requirement of proof of adequate independent wealth, severely limited access to the judicial and forensic careers in nineteenth-century Prussia.^[564] Thirdly, until the transition to “free” admission of advocates in the last two decades of that century, even the successful completion of the “training” period was followed, as a rule, by uncompensated service in the judiciary in the hope of eventual appointment to judicial office or to one of the few State-licensed advocates’ positions upon vacancy due to promotion, retirement, or death of the incumbent. Last but hardly least, all of these phases of uncompensated service, and especially the last one, were congenial to a State proverbial for its penury,

since they supplied competent judicial service without burdening the Treasury.⁷⁰

Mercifully, all but the first of the four features just described have disap­peared with the opening of the advocates’ profession and the increasingly gen­erous compensation of lawyers-to-be while in judicially supervised training after the successful completion of the first State examination. Even the period of apprenticeship (or internship) between the “first” and “second” State examina­tions has been reduced a number of times.⁷¹ Crucially, however, both this period of post-university training and the minimum time spent on university law study are prescribed by statute, and both the “first” and the “second” examina­tions are State examinations.

Thus, university law study is still required, but its minimal duration is deter­mined by State statute rather than university rules for the attainment of acade­mic degrees. Indeed, German universities have generally retained autonomy over the conferral of doctoral degrees and qualification for law faculty appoint­ment, but certificates denoting the successful completion of State examinations displaced the degrees of baccalaureus and magister legum. Nineteenth-century Liberal reform efforts were ultimately successful in abolishing the numerus clausus for admission to the practice of law as an advocate, but “free” advocacy was claimed (and ultimately vindicated) by a State-licensed profession.

Recent trends

It seems difficult, at first sight, to conceive of two systems of academic legal edu­cation, and of two legal professions, more unlike each other than those of nine­teenth-century France and of Prussia-Germany. Yet perhaps more accurately, the legal systems of these two countries resembled each other, as it were, diago­nally. French law faculties, like the Prussian judiciary and civil service, indoc­trinated “seedlings of the State”; German universities, and the French Orders of Advocates, stood for “Lehr-und Lernfreiheit”. For despite their passage through the “ecole de l’exegese”, French advocates made full use of the tradition of their Orders for independent political action in defence of Enlightened (now Republican) values—so successfully, indeed, that the Third Republic has been called la Republique des avocats.⁷²

In the end, this proud tradition of the advocates’ bar in France and in other Romance countries⁷³ failed to stop the general European trend of government management and control of qualification for entry into the legal profession.

⁷⁰ Ebert, supra n.67, p. 22.

⁷¹ It is presently two years. See H Fenge, B Cramer-Frank and T Westphal, “Legal Education in Europe: Germany”, (1995) 2 International Journal of the Legal Profession 95.

⁷² See generally J-L Debre, La justice au XIXe siecle: les republiques des avocats (Paris, 1984), and for the crucial periods of 1870-1879 and 1879-1883, Royer, supra n.29, 524-70 and 573-602.

⁷³ See, e.g., for the Kingdom of Naples, Siegrist, supra n.49, 1, 122-3. Pasquale Mancini exem­plified this tradition.

This was so, at least in part, because the other branch of the forensic legal pro­fession, that of the procurators (in France since 1791, the avoues), has been tra­ditionally subject to strict judicial supervision and even to the numerus clausus. This restriction was the rule rather than the exception in jurisdictions following or inspired by either the French model or the Roman and canon law tradition or both. Its stated reason was that those with a monopoly of filing pleadings and motions were really officers of the court, and that their numbers as well as their activities should be controlled judicially. Unsurprisingly, the merger of advo­cates and procurators (avoues) in France^[565] and the removal of status differences between them elsewhere have increased State control over the formation of both branches of the forensic legal profession.

Study at a university law faculty for the requisite number of years prescribed by law, followed by a successful passing of an examination documented by a licence or degree, is now a standard feature of qualification for all branches of the legal profession in virtually all civil law countries. As we have seen, however, that was not always so even for advocates, let alone for procurators and notaries. Indeed, it is sobering to note that the statutory requirement of a uni­versity law degree was extended to the French notarial profession as recently as 1973.^[566]5 Nevertheless, there is little reason to suppose that the trend towards the requirement of a standardized, State-prescribed and regulated university (or State) law degree for all branches of the legal profession (now all but complete) will stop short of that goal.

But with the plentitude of State control over the process comes enhanced pub­lic responsibility for the product. Given the trend towards uniform standards for all branches of the legal profession, it seems likely that there is need for a prototype. Initially, we have seen, the competing role models for the upper reaches of the profession were those of the orator and of the jurist. More recently, the choice has been between the free avocat and the career judge. It seems not unlikely that today, a strong case can be made for the role model of a well-rounded jurisconsult grounded in the ius commune who is fully at home in one civil law system but no stranger to others—including, perhaps, a leading common law system.

That, however, cannot be a uniform standard, for time is short, and talents as well as ambitions are uneven. To take but the first of these: Justinian extended the law school curriculum from four to five years, and this time span also figures in the writings of the Glossators and Commentators.^[567] Yet Montesquieu received his advocates’ licence in a bare three years, and that (or seven or at most eight semesters) seems to have been the prevailing minimum standard in civil law countries for the last two centuries.^[568]

Since the law has not become less complicated with the passage of time, it seems unavoidable that the legal education of civil lawyers has to be followed by periods of apprenticeship or internship, which necessarily poses the need to choose between the role models of the advocate and the judge. Whatever the choice, it will not (or at least not at this stage) be for the prototype of the transnational lawyer or the international judge.

Yet the former, quite clearly, has also become a role model in recent years. The status symbol of the transnational lawyer in civil law countries is now, as Professor Wiegand has shown, the LL.M. degree achieved abroad after volun­tary additional study.⁷⁸ Originally a product mainly of the USA, designed in major part for export abroad, this has become, in the last decade, all but a stan­dard offering of law faculties in Europe—law faculties, that is, not of State examination and licensing authorities.

Thus, the magister legis (or legum) has not been, after all, extinguished in Europe. In conjunction with the dissertation-based doctoral degree also con­ferred autonomously by University law faculties, it serves to identify and to cer­tify the present role model of the European transnational lawyer. Most entrants into the legal profession will not aspire to that level of achievement, any more than most athletes set their sights on Olympic medals. Nevertheless, here as there, the crowning achievement of the few can hardly fail to help shape the standard for the many.

CONCLUSION

Virtually all late-twentieth century civil lawyers have received their legal educa­tion from professors of law at university law faculties in an official language of their country, with emphasis on a codified body of private law, but not to the complete neglect of either criminal or administrative law. Their university legal education is likely to have been followed by a period of stage or apprenticeship before full qualification. The core substantive contents and the minimal dura­tion of academic studies and of the subsequent training period are likely to have been laid down by the State, the organized bar, or councils composed of repre­sentatives of both. The end product amply (and at times, more than amply) meets the requirements of the modern civil law state. Thus it provides: a multi­level, multiple-panel professional judiciary; a bureaucracy for the Ministry of Justice—down to the level of prosecutor—all trained in law; a practising bar; in-house legal counsel; and (last but hardly least) law teachers and researchers in an incrementally expanding framework of legal education and organized research.

professorship at University law faculties. See also Siegrist, supra n.49, 1, 208 and 272—3 (German and Italian states, 1840s).

⁷⁸ W Wiegand, “The Reception of American Law in Europe”, (1991) 39 American Journal of Comparative Law 229.

With but little exaggeration, the system just sketched fits Germany as well as Italy, Turkey as well as Mexico, Spain as well as Belgium. There is hardly any doubt, however, that it is, at base, the product of the forces set free by the French Revolution. More particularly, it results from adoptions, adaptations, and emu­lations of the French legal prototype that emerged in less than sixteen years of Napoleon’s rule as First Consul and as Emperor (1799-1815). Today’s mass- produced university-trained civil lawyer, it thus appears, is essentially the prod­uct of a tradition of barely two centuries’ standing.

That tradition, in turn, built upon (but it was not a necessary consequence of) the insistence of eighteenth-century enlightened absolute rulers that the current law of the land be taught in the language of the country. The distinctions of rank between civil lawyers then in place reflected, in major part, proficiency in a dead language and in a dead or a dying law, with jurisconsults at the top, advocates in the middle, and procurators at the bottom. The eventual standardization of legal education would have been all but impossible without the turn to the ver­nacular.

The requirement of academic legal education is rapidly becoming the norm in the common law world as well, while court reports in Law French and writs in Latin lasted into seventeenth- and eighteenth-century England. It would seem, therefore, that while the nineteenth-century civil law codifications facilitated and accelerated the turn of civil law countries towards the pervasive require­ment of a university legal education as a prerequisite for the professional quali­fication of lawyers, this apparently secular development does not otherwise reflect a significant difference between the common law and the civil law tradi­tions. Moreover, as demonstrated by the—frequently neglected—history of legal education in the Eastern Empire after Justinian, neither instruction by practitioners nor qualification through co-optation into professional associa­tions have always been incompatible with the latter tradition.^[569]

Perhaps even more remarkably, the characterization of the Inns of Court as the third English university is traceable to the sixteenth century.^[570] There remains, however, the basic difference that, even at that time, civil lawyers and their students argued from finite texts drawn mainly from Roman jurists, while common lawyers and their pupils concentrated on absorbing not only recorded but also contemporary judicial practice witnessed first-hand. The brocardica compiled for (and by) budding civil lawyers would set out Roman (and canon) law authorities on both sides to a hypothetical controversy; the moots of stu­dents at the Inns of Court would do so with judicial precedents.^[571]