By Tanuj Kalia (views are personal)
Few months ago, I was sure that I’ll be into something entrepreneurial. I was also sure that it will NOT have anything to do with CLAT. CLAT coaching business appeared boring and over-crowded with every Tom, Dick, Harry and Rabbit entering the fray.
As luck would have it, a close friend had CLAT coaching in mind and I was roped in. Initially unwilling, I am enthusiastic now; we are after all in the business of training future lawyers.
That should be the aim of CLAT administrators: to design a test which selects candidates who would make the best lawyers. How do they do that? Testing CLAT aspirants on ‘legal reasoning’ constitutes an important part, a major chunk of their answer.
However, the present structure of legal reasoning questions leaves much to be desired. Here is why:
Legal reasoning is logic reasoning styled to appear law-like. You take a logical reasoning proposition and decorate it with legal concepts and call it ‘legal reasoning’. That’s what they do with present legal reasoning questions.
No other large scale test for law aspirants (LSAT, LNAT) has this concept of legal reasoning. They do have logic reasoning questions though. Why? Because legal reasoning, in truest sense, cannot be tested with an MCQ (multiple choice question) and thus cannot form part of a large scale test.
Why then do we have legal reasoning in CLAT? It is a borrowed concept; copied from a pattern followed in the first few questions papers of NLSIU, Bangalore. NLSIU did it differently though; it had subjective questions which was the correct approach, I think. Why? Lets see.
No singular answer: descriptive, subjective and argument-able. Legal reasoning problems which trouble our lawyers and judges never have a direct answer. They never have a singular answer. They cannot be answered, as you’d answer an MCQ.
That’s why, in courtrooms, we have lawyers on both sides, each arguing with logic and with law, trying to prove why his answer is correct. Also, the arguments backing the answers always attack the proposition from multiple vantage points.
Even judgements disagree over what the correct interpretation of law is, over what logical proposition is meatier and over what ethical standpoint will finally lead to justice being done. Ever heard of dissenting opinions?
When lawyers battle it out in the courtroom, there never is a singular answer. When a judge tackles a hard question, there never is a singular answer. And a CLAT legal reasoning question should ideally try to re-create such a scenario in a microcosm. Sadly, it does not (Despite being a large scale test, it actually can, as I’ll argue in the closing paras).
Principle(s) applied to facts will lead to a singular answer? Always? No. Where is the scope of arguments, of intelligently interpreting the words, of using logic, of seeing facts with a detective’s lens? There is not. And herein lies my biggest attack on the facade of CLAT legal reasoning.
Legal reasoning can never be about arriving at a definite answer. It’s always a rigmarole.
Correct v. Quality: Subjective legal reasoning questions also give us an opportunity to test a candidate’s quality, over merely seeing whether she has answered the question correctly or not.
When 10 students are given an MCQ with options (a, b, c, d), and one answer (say, c), it is possible that all 10 students get it correct. Who then is the best candidate out of these 10? CLAT, with its present structure and design will offer no solutions. It then fails in its endeavour to select the ‘candidates who would make best lawyers’.
In a subjective question, the right answer will still be c. But a ‘c’ which is explained better will fetch more marks. And if the candidate convinces the examiner that the answer is actually ‘b’ (hallmark of a great lawyer), it might well fetch him good marks too.
We then move away from Principle(s)- Facts- Options pattern, to something like follows:
Principle(s)-Facts-Argue for Side 1- Argue for Side 2 OR
Principle(s)-Facts-Arguments for Side 1- Arguments for Side 2- Decide
Such was the pattern of the old NLSIU papers and we’ll be doing legal education a favour by reverting back to this pattern.
Reasonable Man and the Intelligent Lawyer. The best advise meted to a law aspirant on tackling the present CLAT legal reasoning section is: think reasonably. The ‘reasonable man’ concept, of course, forms the bedrock of many areas of law. See here.
However, CLAT’s aim is not to select ‘reasonable men and women’. It’s aim is to cherry pick the kids who’d make the best lawyers.
And the best Lawyers are never employed to think (merely) reasonably. The best lawyers are actually paid to dismiss the other side’s version of reasonableness. They are paid to disturb what the judge thinks is reasonable. They are paid, sometimes, to question and disrupt what even a society thinks is reasonable (gay marriages).
Lawyers are thus supposed to think intelligently and find flaws with seemingly reasonable propositions. A lawyer’s reasoning can thus be anti-thesis of reasonable thinking.
Again, only subjective questions can allow a law aspirant to showcase such skills. An intelligent argument written down is visibly different from a commonplace one. A fact smartly used for one’s purposes too is very visible. These are easily noticed by an expert eye.
Legal reasoning classes are best enjoyed by law aspirants. Why? Because they get a chance to argue in the class. The students interpret words in the ‘principle’ differently and swords are drawn over a word. An innocuous fact suddenly seems dangerous (when used against you by a peer). And its a riot! Fun.
The classroom comes close to recreating the courtroom scene. And that’s why its fun.
Administrative hassles. I hear the protests. There were 2000 aspirants for early versions of NLSIU’s papers. There are 20,000 now. Now you can’t expect people to correct subjective answers of so many students.
But you can, especially when the stakes are high. On stake is the training of our lawyers, keepers of our consciences, the crusaders of justice, the drivers of economy (well, I got carried away here). But the stakes are high.
How about this for an idea? First conduct a sans legal reasoning objective type CLAT paper which selects the top 10% of the candidates. And a only-legal reasoning subjective paper for these top 10%.
And what about bias and subjectivity in marking? Have 3 experienced law teachers correct the subjective questions and calculate the average of their scores.
There surely will be other ways to overcome this. And we need to think and think seriously.
Because the stakes are high.–