Title: European legal education, or: how to prepare students for global citizenship?
Abstract: Abstract Legal education is gradually moving away from the teaching of national law towards a more European, transnational, or even “global” way of teaching. This paper seeks to explain why an international legal education is to be preferred to a national curriculum and what this means for how law is taught and how law schools are ideally organised. The arguments for an international legal education lie in the increasing plurality of legal sources, the desire to attract students from a larger pool, and the need not only to give students a specialised professional training but also to prepare them for global citizenship. It is claimed students should be exposed to alternative ways of achieving justice, thus creating a dialogue with otherness. This can be done by a focus on the arguments behind the choices made by the relevant authorities and not on the doctrinal intricacies of national legal systems. This type of international curriculum, in which competing conceptions of justice are at the centre of attention, requires a specific teaching method. Two methods seem best suited to allow students to construct their own understanding of legal problems: problem-based learning (PBL) and the Socratic method. In addition, teaching law in an international setting forces us to think through the sequence in which the various jurisdictions come to the fore, the assessment of students and the use of teaching materials and language of instruction. Also discussed are the challenges for the law school as a whole, such as the relationship between teaching and research, the recruitment of faculty and the decreasing relevance of the traditional departmental structure. Acknowledgement Thanks are due to Mark Kawakami for invaluable research assistance. Notes 1In 2007 Harvard Law School followed other American law schools in adding an internationally oriented course to the first year as part of the first substantive change of the 1L curriculum in 130 years. First year students now have to take one of three courses devoted to public international law, international economic law, or comparative law. 2There is abundant literature on the “transsystematic” programme at McGill (taught since 1999). See the special issue of (2005) 50 McGill Law Journal 701–1006 and most recently H. Dedek and A. de Mestral, Born to be Wild: “The ‘Trans-systemic’ Programme at McGill and the De-Nationalization of Legal Education” (2009) 10 German Law Journal 889–911 and P.L. Strauss, “Transsystemia – Are we Approaching a New Langdellian Moment? Is McGill Leading the Way?” (2006) 56 Journal of Legal Education 161–171. 3See on the Maastricht ELS programme (taught since 1995) A.W. Heringa, “Towards a European Law School! A Proposal for a Competitive Diversified Model of Transnational Co-operation”, in M. Faure and J. Smits (eds), Towards a European Ius Commune in Legal Education and Research (Antwerp, Intersentia, 2002), 3–13 and A.W. Heringa, “European Legal Education: The Maastricht Experience” (2010) 29 Penn State International Law Review 81–94. 4McGill graduates are increasingly hired by the big international law firms (including those in New York) because of their ability to work in both civil law and common law jurisdictions. 5See most recently the special issues of (2008) 26 Penn State International Law Review 811–912 and of (2009) 10 German Law Journal 629–1168. 6Prime examples of such programmes are the Hanse Law School (a cooperation between the universities of Bremen, Oldenburg and Groningen, focusing on German and Dutch law) and the joint LLB programme of Paris I and King's College London (focusing on French and English law). In addition, numerous transnational programmes exist at the master's and “post-master's” levels. 7Of course, there have always been dissident voices. One of the earliest is Rudolf Von Jhering's famous lament that legal science had deteriorated into a provincial field of study (“Die Rechtswissenschaft ist zur Landesjurisprudenz degradiert”): Geist des Römischen Rechts, vol. I (Leipzig, Keip, 1852), 15. More recently the turn towards a European legal education received theoretical and programmatic underpinning in M. Cappelletti (ed.), New Perspectives for a Common Law of Europe (Florence, EUI, 1978) and in B. de Witte and C. Forder (eds), The Common Law of Europe and the Future of Legal Education (Deventer, Kluwer, 1992). 8The exchange of students and staff in Europe is facilitated by the highly successful Erasmus Programme (established by the European Commission in 1987, later part of the Socrates Programme and now part of the Commission's Lifelong Learning Programme) and by the creation of the European Higher Education Area (as a result of the Bologna Declaration of 1999). 9More in particular in the so-called “English track” of this programme (“ELS-ET”). 10See, with many references, J.M. Smits, “The Complexity of Transnational Law”, in Netherlands Reports to the Eighteenth International Congress of Comparative Law (Antwerp, Intersentia, 2010), 113–130. 11The importance of which for teaching is emphasised by B. Akkermans, “Challenges in Legal Education and the Development of a New European Private Law” (2009) 10 German Law Journal, 803–814. 12G. De Burca, “Developing Democracy Beyond the State” (2009) 46 Columbia Journal of Transnational Law 101–158, at 104. 13For an elaboration of the idea of private law beyond the nation-state, see R. Michaels and N. Jansen, “Private Law Beyond the State? Europeanization, Globalization, Privatization” (2006) 54 American Journal of Comparative Law 843–890; N. Jansen and R. Michaels, “Private Law and the State” (2007) 71 Rabels Zeitschrift 345–397; and the special issue of (2008) 56 American Journal of Comparative Law 527–843. 14H. Patrick Glenn, “Aims of Comparative Law”, in J.M. Smits (ed.), Elgar Encyclopedia of Comparative Law (Cheltenham, Elgar, 2006) 59. 15H.W. Arthurs, “Law and Learning in an Era of Globalization” (2009) 10 German Law Journal 637. 16 Southern Pacific Company v Jensen, 244 U.S. 205, at 222 (1917), opinion of O.W. Holmes. 17See the recent book by N. Jansen, The Making of Legal Authority (Oxford, OUP, 2010), 28; cf. p. 43: the “abstract authority of a text giving expression to a legal norm consists in the legal profession accepting it as an ultimate source of the law”. 18Cf. D. Kennedy, “Legal Education as Training for Hierarchy”, in D. Kairys (ed.), The Politics of Law: A Progressive Critique (New York, Free Press, 1990), 38–58. 19See below, text surrounding n. 22. 20Strauss, supra n. 2 (2006) 56 Journal of Legal Education: today's lawyers should be “resourceful in imagining alternative approaches to clients' needs, drawing on the full range of the law's possibilities”. 21See, among many, the overview by J. Bell, “Legal Education”, in P. Cane and M. Tushnet (eds), The Oxford Handbook of Legal Studies (Oxford, OUP, 2003), 901–919 and the recent book by A. Kronman, Education's End (New Haven, Yale UP, 2007). 22Cf. Strauss, supra n. 2 (2006) 56 Journal of Legal Education 165: the goal must be to “catch students in a University enterprise”. 23M.C. Nussbaum, “Cultivating Humanity in Legal Education” (2003) 70 University of Chicago Law Review 265–279, at 265 and for a more general account M.C. Nussbaum, Cultivating Humanity: A Classical Defense of Reform in Liberal Education (Cambridge, MA, Harvard UP, 1997). 24See Y.-M. Morisette, “McGill's Integrated Civil and Common Law Program” (2002) 52 Journal of Legal Education 12–28, at 22. Cf. T.D. Rakoff and M. Minow, “A Case for Another Case Method” (2007) 60 Vanderbilt Law Review 597–607, at 606: “The focus will be more on alternatives, choices, and living with the sequential consequences of earlier choices.” 25This view fits in with what I think is at the core of normative legal scholarship, namely a concern with the ought, on which opinions will always differ: see (in Dutch) J.M. Smits, Omstreden rechtswetenschap (The Hague, BJU, 2009). 26G.S. Becker, “The Economic Way of Looking at Life”, Nobel Lecture in Economics (Stockholm, 1992). Cf. S.D. Levitt and S.J. Dubner, Superfreakonomics (New York, 2009), at 13: economics is not a subject matter, but “a decision to examine the world a bit differently”. 27Cf. E.L. Rubin, “The Practice and Discourse of Legal Scholarship” (1988) 86 Michigan Law Review 1835–1905, at 1893: “The conflict of norms is the essence of normatively-based scholarship …”. 28Also see A. Sen, The Idea of Justice (Cambridge, MA, Harvard UP, 2009), at 106: we should “have something to say about the choices that are actually on offer”. 29On the strong tradition of having (and teaching) only one law (the ius unum), see H.P. Glenn, “A Transnational Concept of Law”, in P. Cane and M. Tushnet (eds), The Oxford Handbook of Legal Studies (Oxford, OUP, 2003), 839–862. 30Apparent in the use of the terms LLB (legum baccalaureus or Bachelor of Laws), LLM (legum magister or Master of Laws) and LLD (Doctor of Laws). 31See Strauss, supra n. 2 (2006) 56 Journal of Legal Education. 32Cf. R.A. Posner, The Problems of Jurisprudence (Cambridge, MA, Harvard UP, 1990), 431–432: (national) doctrinal work is now “work for followers rather than leaders”, if not “old-fashioned, passé, tired”. 33There is more than just anecdotal evidence that the graduates of McGill and the Maastricht European Law School get better job opportunities than traditional graduates. 34But important variations exist among countries and universities. A useful overview is provided at http://www.europaeische-juristenausbildung.de (last consulted 8 October 2010). 35See for the same view Heringa, “Towards a European Law School!”, supra n. 3. 36The term “European” is not completely correct. I use it to indicate an approach that seeks to teach lawyers about alternative approaches, not necessarily restricted to those adopted in the European Union. Ideally, terms like “contract law” and “constitutional law” would already of themselves imply that these topics are treated in an international way: likewise, one should not teach “comparative law”, but law. As the current understanding of these terms is different, I add the term “European” to denote this international aspect. 37P.S. Atiyah and R.S. Summers, Form and Substance in Anglo-American Law (Oxford, OUP, 1987), 394. 38Strauss, supra n. 2 (2006) 56 Journal of Legal Education. 39Strauss, supra n. 2 (2006) 56 Journal of Legal Education. 40Cf. U. Mattei, T. Ruskola and A. Gidi, Schlesinger's Comparative Law (7th ed., New York, 2009), Preface. 41After the famous expression of Louis Brandeis in New State Ice Co. v Liebmann, 285 U.S. 262. 42Rakoff and Minow, supra n. 24 (2007) 60 Vanderbilt Law Review 597–607, at 604. 43On the importance of doctrinal thinking in French law, see the much discussed book by Philippe Jestaz and Christophe Jamin, La doctrine (Paris, Dalloz, 2004). 44See for this distinction in the context of teaching: W. Mincke, “Practical and Propositional Knowledge as the Basis of European Legal Education”, in De Witte and Forder (eds), supra n. 7, 285–294. 45See resp. O. Lando and H. Beale (eds), Principles of European Contract Law I and II (Boston, Kluwer, 2000) and O. Lando et al. (eds), Principles of European Contract Law III (Boston, Kluwer, 2003); European Group on Tort Law, Principles of European Tort Law (Vienna, Springer, 2005); D.J. Hayton et al. (eds), Principles of European Trust Law (Deventer, Kluwer, 1999); K. Boele-Woelki (ed.), Principles of European Family Law, various volumes (Antwerp, Intersentia, 2004–); Chr. Von Bar and E. Clive (eds.), Principles, Definitions and Model Rules of European Private Law: Draft Common Frame of Reference (Munich, Sellier, 2009). 46Cf. Jan Smits, “A Principled Approach to European Contract Law?” (2000) 7 Maastricht Journal of European and Comparative Law 221–223. 47See for a theoretical foundation P. Legrand, “The Same and the Different”, in P. Legrand and R. Munday (eds), Comparative Legal Studies: Traditions and Transitions (Cambridge, CUP, 2003), 240–311. 48Also see C. Valcke, “Global Law Teaching” (2004) 54 Journal of Legal Education 161–182 and L. Catá Backer, “Global Law in American Law Schools: Prospects and Difficulties of Incorporating a Transborder Element in Legal Education”, 2007, available at http://papers.ssrn.com/sol3/papers.cfm?asbtract_id=969870 (last consulted 8 October 2010). 49Heringa, “Towards a European Law School!”, supra n. 3, at 7. 50McGill did so by introducing its “transsystematic” programme (see the text surrounding n. 2 above) and Maastricht by adding an “English track” to its European Law School. 51Cf. R. Junker, “Where Law and Pedagogy Meet in the Transsystematic Contracts Classroom” (2005) 50 McGill Law Journal 789. 52J. Husa, “Turning the Curriculum Upside Down: Comparative Law as an Educational Tool for Constructing the Pluralistic Legal Mind” (2009) 10 German Law Journal 913–926. 53Arthurs, supra n. 15 (2009) 10 German Law Journal 638. 54Also see Rakoff and Minow, supra n. 24 (2007) 60 Vanderbilt Law Review, 607, who point to the lesson of Langdell: “the template for legal thinking established in the first year of law school has real staying power”. The advocated approach may be difficult to apply, but “the greater fear is that, if we do not make the effort to challenge students in this way, students will learn to think of the legal system as only so many rooms, so many pieces of furniture, that they can never reorder”. 55K. Lipstein, “European Legal Education in the Future: Teaching the ‘Common Law of Europe’”, in De Witte and Forder (eds.), supra n. 7, 255–263, at 258. 56M.J. Dunkin, “A Review of Research on Lecturing” (1983) 2 Higher Education Research and Development, 63–78. 57Cf. Nussbaum, supra n. 23 (2003) 70 University of Chicago Law Review 273. 58There is a voluminous literature on PBL in law. See, among many, G.A. Moens, “The Mysteries of Problem-Based Learning: Combining Enthusiasm and Excellence” (2007) 38 University of Toledo Law Review 623–632 and M. Tzannes, “Problem-based Learning in Legal Education: Intentionally Overlooked or Merely Misunderstood?” (1997) 31 The Law Teacher 180–197. 59For an example of how to do this: J.H. Wade, “Meet MIRAT: Legal Reasoning Fragmented into Learnable Chunks” (1990) 2 Legal Education Review 283. 60G. Stigler, The Intellectual and the Marketplace and Other Essays (London, 1963), 14. 61Rakoff and Minow, supra n. 24 (2007) 60 Vanderbilt Law Review also see this as the core of legal education: “the analysis of complex, rich factual descriptions of problems and […] the generation of alternative avenues for problem-solving”. 62On the difference between deep and surface learning see P. Ramsden, Learning to Teach in Higher Education (2nd ed., London, 2003), 62. 63Cf. L.F. Del Duca, “The importance of understanding the role of statutes, regulations, and cases in legal practice and legal education in the United States legal system”, in IALS Conference Learning from Each Other: Enriching the Law School Curriculum in an Interrelated World (Washington, IALS, 2007), 296. 64Both law schools admit about 200 students per year. At Harvard, the entire first year class of about 550 is split into sections containing a maximum of 80 students (which seems too large to pursue the type of teaching advocated in this article). 65Probably (but unjustly) motivated by concerns of accountability and quality assurance. 66On the enormous importance of students writing papers as critical examination of the materials (and oneself) see Nussbaum, supra n. 23 (2003) 70 University of Chicago Law Review 273. 67Yale had already abolished letter grading in the 1960s. 68H. Kötz, “A Common Private Law for Europe: Perspectives for the Reform of European Legal Education”, in De Witte and Forder (eds.), supra n. 7, 39. 69The suggestion is not as unworldly as it seems: it is part of the internationalisation mission of various Dutch universities to insist on all faculty (including those teaching Dutch law) teaching in English. 70On which see the special issue of (1993) 41 American Journal of Comparative Law 351 ff. 71The importance of international cooperation is emphasised by Akkermans, supra n. 11 (2009) 10 German Law Journal 803 ff. and L.F. Del Duca, “Cooperation in Internationalizing Legal Education in Europe – Emerging New Players” (2001) 20 Penn State International Law Review 7. 72Cf. G.H. Samuel, “What Is It to Have Knowledge of a European Public Law?”, in De Witte and Forder (eds), supra n. 7, 171–184. 73Although the dichotomy of public and private law can already be found in Roman sources (D. 1.1.1.2), its importance as an epistemological categorisation is much more recent and directly related to the emergence of the nation-state. 74An example is the discussion about comparative inspiration in private law and about “constitutional dialogue” in constitutional law.