Valcke, C --- "Global Law Teaching" [2005] LegEdDig 39; (2005) 14(1) Legal Education Digest 8

Global Law Teaching

C Valcke

[1993] LegEdDig 81; (2005) 14(1) Legal Education Digest 8

54 J Legal Educ 2, 2004, pp 161–182

In North American law schools, going global is fashionable these days. Course offerings in international and comparative law abound; students and faculty exchanges are in proliferation; transnational recruitment of faculty and students is expanding; international student initiatives such as mooting, journals, and internships are multiplying rapidly; visitors’ programs and transnational collaborative research projects are ubiquitous.

The label ‘global law’ is commonly used as a loose reference to a mix of foreign, comparative, international, and transnational law. And, although international law draws its enforcement power and much of its content from the internal law of states, it remains distinct from this law precisely in that it concerns things supranational. Comparative law is more difficult to define, as the amount of scholarly literature devoted to the issue testifies. It will suffice to say for now that, whatever the objects of comparative law may be, its domain does not differ from that of foreign law, at least not in any way that is significant for present purposes. As comparative law is indistinguishable from foreign law, it is distinct from international law. While this may seem obvious, it is worth emphasising, if only because this distinction is downplayed in current global curricula, which tend to embrace things comparative and international indiscriminately. At one level, the failure to discriminate between the comparative and the international is unsurprising. Transnational law is more nebulous still. Most commonly, the term is used in a technical sense, to designate an amalgam of legal relations and instruments that, while involving private citizens directly, cross national boundaries. Strictly speaking, however, the label ‘transnational law’ is misleading, insofar as it connotes some identifiable body of law existing alongside international and internal state law, which body of law simply does not exist, at least not yet.

If ‘foreign law’ and ‘comparative law’ can be viewed as interchangeable references to internal state law, and if ‘transnational law’ is just shorthand for the international and internal state law that applies to cross-border relations involving private parties, then ‘global law’ itself can be reduced to no more than a mix of international and internal state law. As a result, of the four components typically gathered under this label, namely foreign, comparative, transnational, and international law, we retain only two: foreign and international law.

Insofar as law is a way of thinking, a mode of reasoning, rather than just a collection of rules, doctrines, and institutions, the ultimate objectives of legal education ought to be not so much the absorption of legal information as the development of the ability to think in law. Hence the familiar saying that law school aims to render students capable of ‘thinking like a lawyer.’ This view of legal education, in its classic, domestic inception, here serves as the stepping stone for exploring the objectives of legal education at a global level.

Global law teaching is instrumental where it is designed merely to enrich studies in domestic law. Domestic law is becoming so deeply enmeshed with the global environment that teaching it in isolation from this environment would be tantamount to distorting it. Used in these ways, global law teaching is just a new means to serve an old end. The end remains that of getting students to think like domestic lawyers. Only we now believe that this will be better achieved through a global outlook. But global law teaching can be more than that. It can lead the way to a new end: to get students to think like global lawyers. Global law teaching would then constitute an end in itself.

The objectives of global law teaching hence are two. Instrumentally, it is designed to render students capable of thinking like better domestic lawyers. Insofar as law is a way of thinking, it can only be truly understood from within. But as a way of thinking, as the mental process that ties the rules together, the conceptual structure underlying the rules — ‘law in minds’ — law can be properly understood only from the perspective of legal participants, from the perspective, that is, of those who engage in this mental process and struggle with the conceptual structure.

If international law could be said to form a legal system conceptually distinct from national legal systems, perhaps one could worry that studying international law might require of students that they first exit the domestic legal system, for two separate entities cannot simultaneously be explored from within. As the study of international law does not compete with the study of domestic law, but in fact complements it, the inclusion of international law in the curricula of most law schools has not had the effect of dislodging the domestic legal system as the centre of students’ attention. To the contrary, the study of international law has contributed to the students’ internal understanding of their own domestic legal system.

Domestic judges or legislation commonly consult foreign materials with the only purpose of getting a sense of the possibilities. Given that purpose, they need not acquire greater knowledge of the foreign law that comes from the text of the relevant materials. Similarly, with legal education: insofar as foreign materials are introduced instrumentally for the only purpose of reinforcing the understanding of the domestic legal system, the knowledge of these materials can remain superficial. That is, so long as no suggestion is made to relinquish the point of view internal to the domestic legal system, the introduction of uprooted foreign legal materials is legitimate and can be helpful.

Where foreign law is studied for its own sake, external knowledge no longer suffices. Students then need to exit the domestic legal system and enter another. They must reach beyond the ‘law in books,’ beyond even the ‘law in action,’ to reach into the ‘law in minds’ of this other legal system. Where a deep foray into foreign law is ruled out by practical constraints, a shallow one is better than none, at least where comparative law is used accessorily, as a means to further the understanding of domestic law. Where foreign law is taught not as an accessory but rather for its own sake, however, the teacher needs to have greater knowledge of the foreign legal system than can be acquired on an ad hoc basis.

With respect to foreign law teaching that is instrumental, the question of teaching means is moot, as bits and pieces of foreign law then are just thrown into the domestic mix, and the teaching means are whichever are being applied to this mix. Non-instrumental foreign law teaching has typically been carried out sequentially. That is, in most law schools around the world, a student undertakes the systematic study of foreign law only after completing an initial period of study devoted exclusively to the domestic legal system, be it one term, one year, or in some cases, a full degree. But few law schools have attempted to integrate domestic and non-instrumental foreign law teaching within the same time periods or even within the same courses.

Implicit in the globalisation frenzy is the assumption that legal education should, ideally, aim to introduce students to the greatest possible number of legal systems. More specifically, it seems to be taken as a given that, as the number of legal systems which students will encounter in practice increase, so too should the number of legal system included in the law curriculum. This assumption is misguided. From a pedagogical perspective, the wisdom of shoehorning as many legal cultures as possible into one and the same law curriculum seems questionable. Given the depth of exploration required to understand the law in minds of a foreign system, the number of such systems which any one student can realistically be expected to explore in this way is likely to be very small. In fact, it would be surprising if this number were greater than two, at least within the typical three-year law degree.

Over the course of the past decade or so, ‘foreign’, ‘comparative’, ‘international’, and ‘transnational’ offerings have been fast and freely proliferating in law curricular across North America and beyond. This article calls for channelling these offerings into coherent pedagogical strategies and offers some preliminary reflections as to how this might proceed. Specific questions arise concerning — among other relevant curricular topics — teaching means, depth of coverage, the level of expertise required of the instructors, and the proportion and chronology of these offerings relative to each other and to domestic law offerings. These questions cannot be answered without first distinguishing between instrumental and non-instrumental global law teaching.