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Turning the Curriculum Upside Down: Comparative Law as an Educational Tool for Constructing the Pluralistic Legal Mind

Published online by Cambridge University Press:  06 March 2019

Jaakko Husa

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As is well known, comparative law enters the curriculum normally only after some substantive law has been learned. The traditional approach first takes the law student's national legal system, with the comparison or foreign law element only coming later as a form of supplement to the standard curriculum. This paper offers some thoughts concerning the teaching and learning of law in a world in which pluralistic and/or transnational elements are commonplace. These plural features stem from the declining authority of the nation state as well as from the strengthening of various forms of sub-national law being in tension with the central system of the state. These developments also include growth of supranational or transnational legal regimes (e.g. EU). The growth of the significance of human rights, especially the considerable growth of the system of the European Convention on Human Rights, has caused national and international legal spheres to overlap. This paper is based on a belief according to which future legal education ought to respond more seriously to the globalisation of law. However, the argument here is preliminary and it offers merely a sketch of essential features with scarce details i.e. this paper is of a somewhat rough design. The theme itself, i.e. transnational law and its effects, is most certainly somewhat fashionable these days.

Type
Section 3: ‘Inside-Out?’ Towards a Transnational Legal Education?
Information
German Law Journal , Volume 10 , Issue 6-7: Following the Call of the Wild: The Promises and Perils of Transnationalizing Legal Education , July 2009 , pp. 913 - 926
Copyright
Copyright © 2009 by German Law Journal GbR 

References

1 About the concept of transnational law, see Peer Zumbansen, Transnational Law, in Elgar Encyclopaedia of Law, 738 (Jan Smits ed. 2006).Google Scholar

2 This is also the basic rationale behind the North American Consortium of Legal Education (NACLE). See Barbara Atwood, Graciela Jasa Silveira, Nicole LaViolette, and Tom Oldham, Crossing Borders in the Classroom: A Comparative Law Experiment in Family Law, 55 Journal of Legal Education 542, 542–547 (2005).Google Scholar

3 For example, when the Association of American Law Schools organised the Annual Meeting in January 2006 there was an all day workshop called Integrating Transnational Perspectives into First Year Curriculum.Google Scholar

4 So, “a quickie version of international law” is simply not enough if we are to take transnational challenge seriously, as Anita Bernstein has pointed. See Bernstein, On Nourishing the Curriculum with a Transnational Law Lagniappe, 56 Journal of Legal Education 578, 593 (2006).Google Scholar

5 If one has followed the intense debate within comparative law, one may raise one's eyebrows while reading expressions like “similar type of questions”. Some might detect ‘a functionalist bias’ in this line of argumentation. For more details see, Jaakko Husa, Farewell to Functionalism or Methodological Tolerance?, 67 Rabels Zeitschrift für ausländisches und internationales Privatrecht, 419 (2003). Be that as it may, here the underlying idea is that law teaching and learning should be focused on something which is: “deeply rooted or profound…that which pervades all of” legal systems as H. Patrick Glenn puts it. See H. Patrick Glenn, Doing the Transsystemic: Legal Systems and Legal Traditions, 50 McGill Law Journal 863, 867 (2005).Google Scholar

6 Zweigert and Kötz, An Introduction to Comparative Law 3rd ed., 21 (1998).Google Scholar

7 Cf. Coing, Helmut, European Common Law: Historical foundations, in New Perspectives for a Common Law of Europe 31–44 (Mauro Cappelletti ed., 1987) (national law's ideas presented against the common legal background). See also Zweigert and Kötz, An Introduction to Comparative Law 3rd ed., 21–23 (1998).Google Scholar

8 See especially Jackson, Philip, Life in the Classrooms (1968).Google Scholar

9 In the sense of Heinrich Rickert (see Heinrich Rickert, The Limits of Concept Formation in Natural Sciences (1986)), this representation is Darstellung, containing not only a form of conceptualisation (i.e. logical construct) but it also having a certain cognitive purpose.Google Scholar

10 Glenn, H. Patrick, Aims of Comparative Law, in Elgar Encyclopaedia of Comparative Law 57, 59 (Jan Smits ed., 2006).Google Scholar

11 International law (both public and private) is left out here on purpose. This is done because public and private international law is actually based on certain commitments that in many senses embrace the idea of sovereign state and its law; the international aspect is subjugated to this primary national/state law dimension. In accord, transnational legal questions do not concern only international lawyers (see supra note 1, 748).Google Scholar

12 Smits, Jan, The Making of European Private Law, 55 (2002).Google Scholar

13 Kamba, W.J., Comparative Law: A Theoretical Framework, 23 International and Comparative Law Quarterly 485, 491 (1974).Google Scholar

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17 See also Teubner, Gunther, How the Law Thinks: Toward a Constructivist Epistemology of Law, 23 Law & Society Review, 727, 743 (1989).Google Scholar

18 It is not necessary to go into the details of thousands of law curricula here. However, based on my own experiences and quite extensive internet searches, the state of affairs, which is referred to above in the text, appears to be the most common. Also inquiries from colleagues have produced largely the same result. In this context I thank specifically Professors Michael Bogdan, H. Patrick Glenn, and Mathias Siems for providing their own personal findings concerning the use and role of comparative law in countries that they are familiar with. For a larger European picture see also Juristenausbildung in der Europäischen Union (http://www.europaeisch.ejuristenausbildung.de), last accessed 17 June 2009.Google Scholar

19 See, e.g., Rabel, Ernst, Aufgabe und Notwendigkeit der Rechtsvergleichung, in Gesammelte Aufsätze Band III, 19–21 (1967, originally published in 1924) on “Bildungselement”, and Pierre Arminjon, Boris Nolde, Martin Wolff, Traité de droit comparé Tome I 14–18 (1950) on “rôle educatif”. Google Scholar

20 Even in the best, most well intentioned attempts aim to integrate a supplementary “component in the national legal education” (supra, note 12, 56).Google Scholar

21 Here the text is in debt to Catherine Valcke who has offered an inspiring argument to this discussion in her seminal article Catherine Valcke, Global Law Teaching, 54 Journal of Legal Education 160 (2004).Google Scholar

22 Education refers in this text to the process of acquiring legal knowledge or skills. Learning, on the other hand, refers to those skills and knowledge which are acquired by systemic study of law (i.e. following the curriculum).Google Scholar

23 These ideas (or rather applications of certain ideas) originate from Peter M. Haas (ed.) International Organisation, 46 (1992).Google Scholar

24 This is very close to Valcke's (supra, note 21, 177) idea according to which this kind of globally oriented law teaching offers a possibility to: “penetrate another system, to decipher the ‘law in minds'…to get acquainted with a new way of thinking”.Google Scholar

25 See Second Call for Contributions to contribute to a Symposium Issue of the German Law Journal: “Following the Call of the Wild: The Promises and Perils of Transnationalizing Legal Education”. Online at: http://www.germanlawjournal.com/article.php?id=1010. Last accessed, 17 June 2009.Google Scholar

26 See Bogdan, Michael, Comparative Law, 48–50 (1994).Google Scholar

27 Much of Pierre Legrand's work seems to say that comparative law/legal studies are not for everyone. See, e.g., Pierre Legrand, How to Compare Now? 16 Legal Studies 232, 239 (1996).Google Scholar

28 Of the high scholarly ambit in the field see, e.g., Nicholas HD Foster, The Journal of Comparative Law: A New Scholarly Resource, 1 Journal of Comparative Law 1 (2006) for comparative law or rather comparative legal studies being a necessary science of tomorrow.Google Scholar

29 Traditionally comparative law has been deemed to have many purposes of which one has always been education. See, e.g., Otto Kahn-Freund, On Uses and Misuses of Comparative Law, 37 Modern Law Review 1 (1974) for comparative law seen as a tool of research, tool of education, and tool of law reform.Google Scholar

30 in a similar vein it has already been suggested that as a subject comparative law should be integrated into other law courses. See, e.g., Mathias Reimann, The End of Comparative Law as an Autonomous Subject, 11 Tulane European and Civil Law Forum 49 (1996).Google Scholar

31 Quote taken from Léontin-Jean Constantinesco, Traité de droit comparé Tome II, 15 (1974).Google Scholar

32 This is very much what Kamba (supra, note 13, 492–493) has said about comparative law's role in legal education: “The student is compelled to question the soundness of the solutions, norms and many other aspects of his own law…prompted to investigate the inarticulate assumptions on which the institutions of his own law rest”.Google Scholar

33 These ideas here are all based on the groundbreaking work of Jerome Bruner. For a larger picture of his work see, Jerome Bruner, Toward a Theory of Instruction (1966), Going Beyond the Information Given (1973), Actual Minds, Possible Worlds (1986), and Acts of Meaning (1990). Obviously, constructivism is a large framework in philosophy and science and the ideas of Bruner represent only one stream, even though from the point of view of education Bruner's ideas are most likely best known.Google Scholar

34 Supra note 2, 544. This would be needed in order “to encourage…to research and analyze the legal questions on its own, much as students will have to do after graduation” (id. 550).Google Scholar

35 in practice, it may be a true challenge, see Atwood, supra, note 2, 552–557.Google Scholar

36 In practice, such attempts as the NACLE Cross-Border Family Law Module is one possible practical example of how to involve the deep and practical comparative/foreign law dimension into the law courses in three different jurisdictions and three different legal languages, see Atwood, supra note 2. Also the transsystemic or bijural teaching (at undergraduate level) at McGill University in Canada offers another type of practical example. See for more detailed discussion Yves-Marie Morissette, McGill's Integrated Civil and Common Law Program, 52 Journal of Legal Education 12 (2002). See also H. Patrick Glenn, Doing the Transsystemic: Legal Systems and Legal Traditions, 50 McGill Law Journal 863, 865–866 (2005) on explaining the theoretical background of studying simultaneously, in the same classroom, civil law and common law.Google Scholar

37 Esin Örücü, Developing Comparative Law, in Comparative law: A Handbook, 42, 63 (Esin Örücü and David Nelken eds., 2007).Google Scholar

38 Bell, John, Administrative Law in a Comparative Perspective, in Comparative law: A Handbook, 287, 310 (Esin Örücü and David Nelken eds., 2007).Google Scholar

39 Theoretically this seems to require accepting some kind of universalism or generalist assumption according to which there, indeed, are common legal questions in different legal systems.Google Scholar

40 See supra note 13, 518–519.Google Scholar

41 This concerns multiple aspects: description of given assignment, discerning and building a meaningful learning objective, gathering suitable readings for the assignment etc.Google Scholar

42 Of course the number of comprehensible legal languages and availability of relevant materials pose certain restrictions, although Internet has to an extent diminished some of the difficulties. For a more detailed discussion on the significance of linguistic skills see Heikki Mattila, Comparative Legal Linguistics 19–21, 33–39 (2006).Google Scholar

43 This refers to the undergraduate type of law program. If a law programme is a graduate programme, then this does not fully fit. However, this paper keeps in mind especially European law programmes of which most are five-year programmes consisting of both undergraduate and graduate level law study. In the American scene, however, things are somewhat different.Google Scholar

44 Siegel, Neil S., Some Modest Uses of Transnational Legal Perspective in First-Year Constitutional Law, 56 Journal of Legal Education 201, 215 (2006). See also M.C. Mirow, Globalizing Property: Incorporating Comparative and International Law into First Year Property Class, 54 Journal of Legal Education 183 (2004).Google Scholar

45 See supra note 1, 749. It seems that he certainly has a point when stating that: “While this insight is beginning to take hold in curriculum reform committees everywhere, there is still a long way to go to bridge the gap between the mostly traditional canon of First Year courses and the crème de la crème curriculum specializations that are usually restricted to Upper Year programmes” (id).Google Scholar

46 Supra, note 2, 549.Google Scholar

47 When stepping out from the bijural thinking, one might really approach near to the kind o outcome described by H. Patrick Glenn. See H. Patrick Glenn, Doing the Transsystemic: Legal Systems and Legal Traditions, 50 McGill Law Journal 863, 866, following: “Legal education would necessarily have to track, and even foreshadow,” various non-positivist developments within legal theory/philosophy.Google Scholar

48 Supra, note 21, 160.Google Scholar

49 See supra, note 14, 499.Google Scholar