Legal Developments in History
The legal profession in England and Wales has a long and interesting history - much of what is practised today has its roots in Medieval Europe and in the formation of secular tribunals in England under the rule of Henry II which led to the formation of ‘common law’ in around 1150. The law is a complex subject and it can be confusing to tell the difference between the various types of legal professionals, such as solicitors, attorneys, judges and barristers. Arguably one of the most important moments in the progression of legal history was the formation of the Inns of Court. The Inns of Court played an important role in the evolution of the barrister as a legal professional in England and Wales.
What is a Barrister?
But first, what is a barrister and how does the term differ from a solicitor and a lawyer? A lawyer is simply the general term that covers solicitors and barristers, i.e. all barristers are lawyers but not all lawyers are barristers. A solicitor is a legal professional that interacts with the clients. A member of the public will go to a solicitor with their legal problem and the solicitor can conduct litigation on their behalf. A solicitor may refer their client to a barrister who has more specialist knowledge and can give legal advice. A barrister will represent a client in court and will negotiate settlements - barristers do not generally conduct litigation. In previous years the distinction between barristers and solicitors was more defined but is becoming less so in recent periods as more solicitors are allowed to appear in court as advocates.
The term ‘barrister’ likely comes from ‘the bar’ which is generally used in reference to the process of qualifying as a legal professional or to the legal profession in general. A barrister is a law student who has been ‘called to the bar’. The term originated in the mid 16th century where the bar was quite literally a barrier or railing in an Inn of Court that separated ‘benchers’ (i.e. the senior members) from the rest of the hall. When a student who was a member of an Inn of Court reached a certain level in their study of the law they would be ‘called to the bar’. The etymology of the word became confused after the 17th century.It became a popular assumption that the term referred to the bar or railing in a courtroom that denoted the area that was restricted to participants in a trial or hearing.
The Inns of Courts
The major turning point in the education and regulation of barristers was the formation of the Inns of Court. Today there are four Inns of Court and in order to become a barrister and be ‘called to the bar’ you must be a member of one of them. The four Inns are Lincoln’s Inn, Gray’s Inn, Inner Temple and Middle Temple. The Inns are effectively the professional associations for barristers, they organise and regulate the profession as well as providing training, accommodation and dining and library facilities. They are often referred to as Oxbridge colleges for barristers.
Establishing the Inns
It is a tradition that none of the four Inns claims to be the oldest but the roots of the Inns in general can be found in the 13th century. The exact years that the Inns were established are not known. Before the 13th century the law was taught by the clergy in the City of London. Everything changed, however, when King Henry III decreed in 1234 that no institutes of legal education could be within the City of London and later a Papal bull was written that prohibited the clergy from teaching the common law. As a result of these changes the common law practitioners were forced to relocate and reorganise. They moved into ‘hostels’ and ‘inns’ in the hamlet of Holborn - chosen because it was the closest place to the law courts in Westminster that was not within the City - and the Inns of Court were established.
Inns of Court & Chancery
Inns of Chancery were also formed alongside the Inns of Court to deal with the large demand for stewards and legal advisers to landowners. The Inns of Chancery were used by those who needed to acquire a rudimentary knowledge of common law rather than the more extensive study offered by the Inns of Court. Students soon began to attend the Inns of Chancery in preparation for joining an Inn of Court and by the 14th and 15th century the Inns of Chancery were being taken over and run by the Inns of Courts. The Inns soon acquired a monopoly over the teaching of the law. The increasing distinction between barristers and solicitors can also be traced back to the Inns. Towards the end of the 16th century the Inns of Court began to exclude solicitors and did not allow them to be ‘called to the bar’ which led to a separation in the work carried out by solicitors and barristers. In the 17th century the Inns began building grand halls, buildings and libraries for their members to use, much of which still stands today.
Today the Inns of Court take less of an educational role and a more of a gubernatorial and organisational role. Membership of an Inn of Court is still required before a student can become a barrister, and they are the only organisations with the power to ‘call to the bar’. The formation of the Inns of Court was an important legal development in history that has had a great impact on how the law is practised today. The Inns of Court developed three levels of membership that are still used today: Masters of the Bench (or ‘Benchers’) who are elected from eminent and experienced members, barristers who are qualified to practise the law after being ‘called to the bar’, and bar students. Joining an Inn, therefore, is an important part of a law student’s journey to becoming a barrister.