The Solicitors Regulation Authority (SRA), the regulatory body for the large part of the legal profession in England and Wales, has recently proposed a significant change to the way in which people qualify to practice as solicitors that jurisdiction. This consists of a two-stage centralised assessment, the Solicitor’s Qualifying Exam (SQE), which has become known in some quarters as the ‘super exam’. This paper focuses on one particularly controversial aspect of that change, that is the introduction of a multiple choice examination, which seeks to assess whether candidates possess sufficient knowledge about relevant areas of law to practice (the so-called SQE1). This change is both revolutionary and controversial for many reasons. This paper however will consider perhaps the most fundamental question in this regard, albeit one which is remarkably neglected within the limited work which exists on the SQE, namely whether and how such an assessment is capable of testing legal knowledge. What follows is therefore an exercise in legal theory, in that it posits an account of what makes legal statements true or valid. It is emphatically argued that SQE1, as envisaged by the SRA, embodies a thoroughly impoverished, and indeed largely incoherent, vision of law, termed within this paper ‘Bleak Legal Realism’, which fundamentally misunderstands how legal truths are created or identified. Due to the multimodal and justificatory nature of legal reason, there is no brute form of bivalence within legal propositions or putative legal knowledge; legal propositions cannot be said to be either ‘true’ or ‘false’ in a simplistic manner, which is what a multiple choice-type examination requires in order to be for for purpose in this context.
While multiple choice assessments are also thought to be problematic in other important respects, not considered directly in this paper, they are reliable in examining many forms of knowledge, even in sophisticated or ‘deep’ ways, but only in certain ‘types’ of epistemic contexts. Broadly speaking, these are when truth is a particular field is constituted by, on the one hand, its immanence or coherence, or, on the other hand, its correspondence with certain external truth conditions. It is appropriate therefore to areas which are characterised by a unified, coherent epistemology, and those which are characterised by an identifiable external ontology. Legal truth is not exclusively characterised of either of these qualities. The multimodal nature of legal reasoning means that even where legal reason incorporates aspects which resemble such elements, these are merely a several amongst many modes of justificatory argument which lead to valid legal propositions. More precisely, the nature of law and the validity of legal propositions are contested to the extent that there are numerous competing modes which stipulate different accounts of internal coherence and external truth conditions.
Upon deeper analysis, legal truth is different to immanent or correspondent forms of truth due to the fact that legal truth is constituted by the modes of argument which lead to the valid proposition. This form of modal constructivism means that a multiple choice assessment is incapable of reliably testing legal knowledge. This does not mean, of course, that such an examination is devoid of all value: it must, after all, be testing something, and must, contain its own innate account of what constitutes legal truth. It is concluded that the SQE1 embodies a form of Bleak Legal Realism, in which legal knowledge is reduced to the ability to predict adjudicatory outcomes. This is a grave problem for three reasons. Firstly, it does great violence to the multi-modal nature of legal knowledge, reflecting instead a simplified and simplistic conception of legal knowledge, reflecting none of the reasoning which itself constitutes the proposition being asserted. Secondly, and even more worryingly, this approach to the testing of legal knowledge is incoherent. While legal realism as a broad intellectual movement brought great sophistication to legal knowledge and practice during the Twentieth Century, in its most simplistic form, that found in the SQE1, it is simply incoherent: legal truth cannot be a prediction of legal reasoning, when it is this reasoning itself which generates that legal truth. This method of testing legal knowledge through what is effectively the brute prediction of legal outcomes is being introduced just as this aspect of legal practice is on the cusp of being entirely taken over by the superior ability of artificial intelligence and algorithms to perform this very job. Thirdly, this assessment, if it comes to have a dominant effect on the way in which law is taught and studied more generally in England and Wales, will have an impact not only on the quality of students and the ability of the examination to identify those who are capable of generating legally valid propositions. Due to the law’s constructivist nature, the way in which people think about the law has a direct impact on the law itself: its epistemology and ontology are directly and symbiotically linked. Reducing lawyers’ thinking to a prediction of their own professions’ outcomes will have a detrimental impact on the quality and form of legal reasoning in general, and therefore on the quality of both the performance of those exercising legal services and the content and operation of the law itself. If the legal profession resists this impact, it will be due to the irrelevance of the exam to the broader education, training and selection of future lawyers.
