SQEezing the jurisprudence out of the SRA’s super exam: the SQE’s Bleak Legal Realism and the rejection of law’s multimodal truth

Abstract

ABSTRACTThis article considers the nature of legal knowledge and legal truth, and the ability of certain forms of examination to appropriately assess them. It thereby provides a critical theoretical framework to understand the Solicitor’s Qualifying Exam (SQE), the proposed centralised qualifying test to become a solicitor in England and Wales. In particular, it considers the multiple-choice aspect of the so-called SQE1, which purports to test certain core areas of legal knowledge. The author asserts that SQE1 embodies a thoroughly impoverished vision of law, which he labels ‘Bleak Legal Realism’, where prospective students are reduced to producing brute predictions of judicial outcomes. The author argues that while multiple-choice examinations are capable of testing various forms of knowledge and reasoning, they are inappropriate in legal contexts due to legal propositions’ lack of bivalence, that is they cannot simply be said to be either true or false. Examining the nature of legal truth, both in the context of the general philosophy of law and the broader philosophy of truth, the author argues that legal truth is ultimately characterised by its ‘multimodality’, that is that it rests upon various qualified ‘modes’ of reasoning which, in turn, justify any given legal proposition. Because legal truth is constituted by these justificatory modes, any attempt to test legal knowledge without requiring a demonstration of such justificatory multimodality will fail to accurately test legal knowledge, seriously compromising the SQE’s utility and legitimacy.