Brostoff, T K --- "Using Culture in the Classroom: Enhancing Learning for International Law Students" [2007] LegEdDig 43; (2007) 15(3) Legal Education Digest 14

Using Culture in the Classroom: Enhancing Learning for International Law Students

T K Brostoff

[2007] LegEdDig 43; (2007) 15(3) Legal Education Digest 14

15 Mich St J Inter L 557, 2007, pp 1–17

The challenges of teaching international law students about U.S. law and legal reasoning have become greater with the increasing globalisation of legal education and practice. As law school classrooms are more global in their scope, teaching international law students about U.S. law and common law reasoning requires the professor steeped in the U.S. law school traditions to rethink teaching methods and to invest energy in learning about the legal and educational cultures of the students. International law students studying in United States law schools, regardless of their fluency in English, will be most successful when they can begin to feel comfortable with the context of U.S. law. Helping students begin to understand the context, and not just the text or language, of U.S. law requires that teachers of international students understand the legal and educational contexts from which the students come. It is through this exchange of understanding about differing legal and educational cultures between law students and professors that international students will come to be able to communicate with confidence about their study of U.S. law. Professors will more successfully communicate about U.S. law when they take time to learn about their students’ perspectives and experiences with the law of their home countries.

U.S. law professors teaching students studying U.S. law overseas face different challenges. Those students may be from the same culture and may be learning in their law school in their native country. On the other hand, many law students travel to a new country to study law at a graduate level and face learning about U.S. or international law with other students who are from many other countries. Improving teaching effectiveness in each of these situations requires that the law professor understand the traditions of the country where the students are learning and about the legal cultures of each of the students, in order to help the students put U.S. law in context. Each of these different environments place different demands on the law teacher.

In order to appreciate how students understand legal concepts and principles of a country different from their own, one must first begin to understand the role of culture on the law. Early anthropologic theorists defined law as ‘built on a concept of culture as integrated, stable, consensual, bounded, and distinctive ... [and] defined as the common values, institutions, and regular social interactions shared by a group of people.’ This view of culture and law has evolved over time to view ‘law as a symbolic and cultural system that simultaneously constructs the order of the larger society and is suffused by that order.’ Law, in addition to being the pure concepts of the governing principles of any culture, also includes legal culture.

Many times, due to increased globalisation of law practice and teaching, legal ideas and theories travel from legal culture to legal culture without full explanation or understanding of the cultural underpinnings of the concepts. In addition, those concepts may emerge as a product of legal education that fails to appreciate and communicate the role of culture in the development, and day-to-day implementation of the legal principles. While the persistence in emerging legal societies of ‘pure’ cultural values and legal norms that are not affected by outside cultures and values is the rare exception in the world, the far more likely result is the ‘cultural confusion’ that accompanies the ‘enthusiastic embrace of ‘modern’ practices and values.’ The result may be a lack of real understanding as to how legal principles operate in either the original or transplanted context. For both teachers and students, adding an appreciation of the role that culture plays in the development of legal concepts could lead to new mutual insights, knowledge and respect that can result in greater understanding of the role of law and lawyers in the new global legal society.

The process of introducing culture into the classroom requires that those teaching about U.S. law to international law students begin by understanding the legal and educational backgrounds of the students, while recognising the teacher’s own ‘cultural encapsulation.’ ‘[T]o move beyond a position of cultural encapsulation, [the law professor] need[s] to become knowledgeable about the history, values, and contemporary issues impacting [the students].’ Recognising that the law professor’s communications and judgments are grounded in his or her own culture and experience allows the professor to understand those limitations while moving toward a position of recognising and beginning to understand the diverse cultures of the students.

The students’ prior experiences and legal education may enhance their learning about U.S. law, as many international law students are either practicing lawyers or graduate students of law in their home countries and bring advanced analytical abilities to their legal studies. Because the civil law was ‘laid out in advance,’ students from those legal traditions may be very able to engage in ‘careful logical analysis and ... presentation ... [of] ... coherent, abstract’ reasoning. Many international law students will be well-versed in the professional attitudes and presentation required of legal professionals in all legal cultures.

Sometimes, however, prior educational or practice settings can act as barriers to the type of legal learning necessary to understand U.S. law or to succeed in a U.S. law school. Students from civil law cultures may find U.S. or common law reasoning frustrating and see it as ‘more chaotic’ and tending more towards ‘solution[s] of concrete problems [rather] than to the construction of grand general principles.’ Those from other common law countries may find U.S. law’s overt reliance on only written authorities frustrating where their common law cultures allow for explicit incorporation of cultural norms, traditions, or practices into most legal solutions. Yet, U.S. ideology and values that may have no counterpart in other legal cultures seem to pervade the decisions of courts without overt reference or documentation to their origins.

To be more effective teachers, law professors should invest some time in understanding the learning history and culture of their students. Although complete empathy and understanding of the context of the students’ prior learning experiences may not be attainable for the U.S. law teacher, even ‘modest degrees of awareness’ could be very helpful in promoting better communication with international students.

Traditional learning styles differ greatly among international students; thus they should not be treated as a ‘homogeneous group of learners.’ Many students from continental or other international educational settings may have different expectations about the process of learning about the law. Without clearly defined explanations of what is expected of them in the classroom where they learn about U.S. law, some or many students may experience confusion and distress. Students may long for the structure of the ‘autocratic classroom,’ or experience as ‘aggressive’ the highly interactive style of classroom communication found in many U.S. law school classrooms. The students’ prior educational experiences may have been through lectures with little or no interaction with the professor, and class attendance, preparation and participation may not have been required at any time during the legal educational process. The teacher of U.S. law must appreciate that his or her expectations of the classroom may be fundamentally different from those of the students, and the students will be faced with learning new legal concepts by a process that they may find a bit frightening and overwhelming, and perhaps even ‘humiliating.’ International students may also have little experience with writing about the law as ‘learning to write legal discourse is part of a process of learning to participate in the affairs of the legal community and its disciplinary culture.’ In addition, many or all of the students’ exams or class evaluations may require oral recitation of answers to their professor or a panel of their professors. In fact, in many legal traditions, the decisions of the courts are not published, so in addition to the lack of the use of precedent, the idea of examining written legal analyses of specific cases may be unknown to the students.

Due to this tradition of oral recitations rather than written legal analyses or differing traditions of citation to authority, one may find that ideas about what is termed plagiarism and cheating in the U.S. law school tradition may be viewed or understood quite differently in the law school cultures of the international students. Understanding different cultural approaches to writing about the law and attribution and their underlying reasons will assist the professor in introducing the students to the process of academic writing and attribution in U.S. law without passing judgment on the students’ methodologies, ones that may have been above reproach in their home educational settings.

Further, U.S. law professors will learn that many students from civil law traditions have a strong philosophical approach to the study of law and are steeped in legal philosophy and studies of legal history dating from Roman law. These students may find the teaching of U.S. law too practical and long to understand the philosophical underpinnings of the rules which they study.

In addition to understanding the learning style of each student, the professor will better communicate with international students if he or she has an appreciation of the students’ purposes and perspectives for studying U.S. law. Students learning about U.S. law and legal reasoning as part of a course of study in other countries may seek a more comparative understanding of U.S. law, as a supplement to learning their own domestic law or as part of a course of international study. Therefore, the students’ purposes, as well as their learning styles, are many times quite different from those of U.S. law students.

Understanding and respecting these purposes and perspectives allows the U.S. law professor to adapt or explain teaching methods to account for the students’ cultural presumptions about thinking, learning and writing about the law. Understanding the diversity in legal traditions and education will also help those teaching international law students to begin to identify any commonality of legal ideas and educational experiences across national boundaries. More practically for those teaching in U.S. law schools, understanding the legal learning experience of international students will help the teacher to guide the students through the unique style of learning through the Socratic method, if they must adapt to it, and the tradition of writing throughout the U.S. law school curriculum.

The students will also benefit by finding that they may share common goals, learning experiences, and legal traditions with their international peers. If students share their experiences through oral, as well as written, projects, they will begin to find common bonds with other students that will support them through a process of learning that may at times feel alien, stressful and incomprehensible.

While continuing to explore the educational backgrounds, legal, and social culture of the students, within the teacher’s own contextual limitations, the students must focus their learning on U.S. law. Many international law students use their own legal backgrounds and experience to move quite quickly into an initial understanding of U.S. common-law principles. While the need and the motivation to learn about common-law reasoning are great in these students, much of their learning is still comparative in nature. They understand the principles they study, but constantly look for commonalities and differences with the law of their home countries.

By recognising this process, the U.S. law professor can further aid the students by adding United States cultural and historical context to the principles about which the students are writing and studying. Unlike U.S. law students who take context for granted, for students new to this country’s legal traditions, this is quite a difficult process. The law professor, after some personal cultural introspection, must explain why legal rules and principles operate as they do and how they are viewed and influenced by those subject to them. The law teacher should be sensitive when using examples from everyday life in the U.S. as even those ideas commonplace to one versed in U.S. culture can seem strange or can be misunderstood by students not of the culture. Explanation of context through various media also can help the international law student to think and write more clearly about the law they study.

The students will also benefit from having a chance to share their comparative cultural perspectives on U.S. law. This sharing ‘promotes “thinking with another set of legal concepts and categories, [so that the students] can then look back at [their] own legal world with a sense of it as newly strange.”’

Discussing the differences in legal rules and their cultural bases will enhance the U.S. law teacher’s own understanding of other legal and cultural systems. It also will enable him or her to recognise faulty assumptions or analytical processes that the student may use in analysing U.S. law as actually having grounding in the native legal traditions of the student.

Sharing comparative knowledge also helps students reconcile emotional reactions that they may have to some legal concepts in the United States, such as the death penalty and other controversial topics.

Promoting this type of comparative cultural learning allows the students to gain context and understanding of the U.S. law, rather than promoting the value judgments or purely emotional reactions to the law that can occur without contextual understanding. It ‘encourage[s] students to reflect on their own cultural circumstances with new perspectives through encounters with seemingly ‘different’ societies’ and their attendant legal rules. Through this method of learning, the students begin to form a basis for distinguishing and understanding the differences between U.S. law and the law of their home countries.

As the students become acclimated to the culture of U.S. law, they begin to become immersed in their beginning knowledge of the law and its customs and traditions. Students in U.S. law schools naturally will continue to understand context through their everyday exposure to U.S. culture. Once exposed to the idea of culture as the basis for law, all students, regardless of their place of study, begin to naturally value learning about the cultural aspects and backgrounds of the law, as this will begin to explain why certain rules exist or why they operate as they do. Having gained the intellectual tools for exploring U.S. law in a comparative way, without having to judge whether U.S. law is better or worse than the law in their home countries, the students will be better able to form dispassionate analyses based on purely U.S. legal concepts.

U.S. law professors will benefit as teachers and scholars from taking time to use culture in the classroom as their understanding of other legal cultures and perspectives will be greatly enriched. They, too, will become attuned to the place of culture in the formation and the implementation of law both in the U.S. and abroad. Understanding that the social context of the law of their home countries is the perspective from which international students begin to understand U.S. law gives the professor insight into how to better communicate with their international students. Moreover, the professor can see the incremental progress the students make during the transition from international students or attorneys to international legal scholars. This process is not linear and may not be measurable, as changes in adapting to a new educational and legal culture happen at different times for different students. However, for most students, the process itself can be a positive experience and both international students and their teachers can enrich their understandings of both law and its cultural underpinnings in the U.S. and the students’ home countries. This can be a step towards international legal education that includes respect and understanding of cultural differences as an important part of learning about the law.