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Legal Education Digest |
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J Husa
10 (7) Ger L J, 2009, pp913–926
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 (eg. 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.
The problem with the traditional law-teaching approach is that it constructs a primary epistemic foundation for legal understanding, which is based on the one mother-system. This creates an implicit mono-epistemology, which makes lawyers regard their own system as ‘normal’ and other systems as ‘not-normal’ or, at least, something that is ‘less-normal’. From this mono-epistemic platform, the law student is first immersed in the one-approach-thinking, which later makes it difficult to epistemologically adapt to transnational pluralism and to genuinely accept different approaches. Here it is tentatively argued that today’s law teaching should start from general legal questions without compulsory prior epistemic embedding to one’s own national law. Shortly afterwards, students should first be introduced to different solutions and different ways to construct legal questions and ways for answering them. What is important to note in this context is that this is something more than just adding traditional international law or comparative law as a field of legal science in the law curriculum.
The sketch-like argument in this paper draws inspiration from the pedagogical theory of so-called constructivism. In following this theory, one may say that in reality no one can teach law. Accordingly, an effective law curriculum is one which can stimulate students to learn legal thinking. So, law students learn law well when they construct their own legal understanding from multiple sources. If this idea is taken seriously, most teaching of national law should take place only after the first steps of the self-construction of the student’s legal thinking have taken place. Comparative law and/or foreign law and even approximate knowledge of different foreign approaches to similar types of questions may be regarded as a valuable tool for the construction of a primary pluralistic legal mind.
Such archetype comparative lawyers as Konrad Zweigert and Hein Kötz have presented the standard comparative law argument by stressing the general importance of comparative law in all legal education: ‘Comparative law offers the law student a whole new dimension, from it he can learn to respect the special legal cultures of other peoples, he will understand his own law better ...’.
The basic idea is to have deeper integration of comparative law into the teaching of national law. Certainly, these kinds of arguments and discussions are not irrelevant, however this kind of debate is not really what is sought after here. The key question here concerns law curricula and their clandestine dimension.
The way studies are organised and the way different subject areas are positioned in the total structure of a curriculum is a key factor in moulding the law student’s way of thinking without thinking or questioning certain invisible theoretical commitments about law.
From the point of view of legal education, the epistemic outcome may be described by the words of WJ Kamba: ‘One is inclined to think that the solutions of one’s own legal order are the only possible ones’. So, it is not claimed that one necessarily prefers one’s own law knowingly, but that one is in an epistemic sense inclined to do that.
Globalisation and the expansion of transnational law changes law in the sense of rules, principles, institutions and procedures. But to truly deal with this change something more than knowing the new body of law is needed. In a similar vein, it has been recently noted that we need not only globalisation of law or legal science but rather ‘a globalisation of the mind’.
What is sought after is to claim that when one follows a curriculum it is not only important what is in the curriculum but also what places different subject areas are to be found, and in what order they are presented to law students. For instance, if comparative law or foreign law comes only at the very late stages of studying, it also reflects an implicit idea concerning the ‘right place’ of these subject areas in the world of law; they come only after the ‘normal stuff’ and represent something that is ‘extra’. The theoretical character of comparative law teaching tends to fortify this impression of ‘extra’. This is a kind of legal Weltanschauung or world-view-of-law that contains the epistemologically defined manners, which a professional law person uses when he or she is trying to perceive the world of law.
Comparative law or the study of foreign law may be regarded as a form of competing discourse as it could offer a different way for organising the world of law and different ways of how to seek answers to social problems that are regarded as having something to do with legal order. The problem is, however, that comparative law and foreign legal material have a very small role in law curricula around the globe; this is true regarding the amounts as well as the positioning of comparative and foreign law material in curricula. The crucial pedagogical question is, however: is this auxiliary or complementary role enough for contemporary purposes?
Some things appear to be quite clear. Without a shadow of a doubt, little comparative and foreign law is better than none, but from a pedagogical point of view this is way too little in order to help constructing genuinely competing legal discourses alongside one’s own national law. This is simply because the hidden epistemic curriculum has already been implicitly constructed in a much earlier phase. Accordingly, even though a student may learn some details or technicalities of foreign law she or he does not really receive alternative ways to think ‘legally right’. Moreover, this also means that the challenge to teach lawyers to think like global lawyers is generally not met.
In the above it has been claimed that national law in the epistemic sense dominates national law curricula: it has an important position in constructing the invisible and implicit legal Anschauung, or immediate intuition, of a legal mind. If this is so, then we might regard national law as a kind of epistemic community. In a word, this epistemic community has a shared legal-world-view, which is not openly displayed, and yet it exists. The law curriculum is a part of this epistemic community and they cognitively initiate students to this community.
Now, legal education is not itself the same as this epistemic community, but what education does is take part in constructing this epistemic community (or to be precise builds some of its basic ontological and epistemological commitments about law) by providing a world-view-of-law, which is based on one national system ie. mono-understanding. The learning outcome, provided by the hidden epistemic curriculum, is a kind of a mono-system-thinking, which has proved to be a problem for today’s and tomorrow’s legal education, because legal education should be able to answer the call of the wild ie. face the promises and perils of transnational legal education. Here it is suggested that comparative/foreign law might have an important role in this, but there are some problems with this. If one reads comparative law literature at all, one cannot avoid the fatherly atmosphere in which older and more seasoned comparativists are constantly reminding their younger colleagues about studying foreign law carefully and not making any such foolish assumptions that originate from their own legal cultural background. It is all a very serious business, which, accordingly, starts to look very much as something for only those truly initiated.
However, it may be useful to separate the teaching of law (especially at undergraduate level) and the research of law when we are dealing with comparative law. From the perspective of teaching, comparative law should not be understood exclusively as a field of legal science but rather as a pedagogical instrument. Now, if comparative/foreign law’s full pedagogical potential is going to be used we cannot simply start from similar ideas about the required skills: first year students and professors at the age of sixty do not have similar skills. Accordingly, if comparative law material is going to be situated in the curriculum in a very early phase (first year or second year) it is practically impossible for any of the students to have the required skills. So, comparative/foreign law as a teaching-tool must be separated from comparative law scholarship This is not as easy to conceive of as it may appear, because it would require turning upside down some of the most persistent paradigmatic wisdoms in comparative law. Namely, what is required is to abandon, in the teaching-context, the famous idea of Paul Koschacker according to which: ‘Schlechte Rechtsvergleichung ist schlimmer als keine’.(Bad comparative law is worse than none.)
But, if we are to use comparative law as a fully-flexed educational tool it might, instead, make perfect sense to have a ‘bad comparison’ provided that ‘bad comparison’ may produce a better epistemic embedding for law students’ legal minds ie. better learning results in the long run. The core pedagogical point here is straightforward: to try to make students to actually attempt to use the laws of systems that differ from their own. In order to make this idea clearer we should look into different theories about education and learning. In this respect, the constructivist ideas look especially promising.
Constructivism in education or in educational psychology may be regarded as a certain kind of loose theoretical approach to teaching and learning. Its core idea is to regard each individual learner as an active person who is actively building or constructing knowledge and skills. The material provided by the teacher is regarded as a kind of stimulus that sets the learner’s learning process into motion ie. the stimulus (what is taught) is not as important as the cognitive process that stimulus is producing in active learners. So, learning is regarded as an active process in which learners construct new ideas or concepts based upon their current or past knowledge.
What the learner actually does is select and transform information, construct hypotheses, and make decisions, relying on a cognitive structure to do so. In this kind of process it is the cognitive structure (eg. schema or a mental model) that provides meaning and organisation to experiences and allows the learner to go actually beyond the information given. Further, the teacher and the learner should engage in an active dialog, which facilitates the process of learning.
In this kind of constructivist theory of learning there are some basic principles that should be followed. An important principle is to structure the teaching so that it may be easily understood by the student. The second important principle is to design the teaching so that it would help students learn to fill the gaps. This is precisely what is meant by, ‘going beyond the information given’. What is hoped for in this kind of teaching is to help students to expand and further develop their knowledge by enhancing their willingness to go further toward new learning.
There are at least two points which are important to take into account. The first one deals with the nature of questions that can be used in the early-phase of comparative/foreign law teaching. To begin with, we should not start from classical comparative law questions like: ‘What is comparative law? What are its purposes? What are the subject’s particular aims, approaches, methods, and how is it used?’ These do not enhance the readiness of students to be willing and able to learn, but rather, they may even block the growth of interest and direct the focus to points that are overtly theoretical and do not seem fascinating to an average law student. Rather, we should start from questions (ie. stimuli) that are as to their nature something like: ‘Is the administration liable on the same basis as a private individual? How far is compensation sought through the courts and how far are there special compensation schemes for particular kinds of injury or activity?’ These are the kind of questions that do not require students to know about foreign law extensively or their own law for that matter. In other words, questions like these practical ones can be answered roughly with the help of some valid basic legal literature of a country. Further, these kinds of practical questions (being ‘answered’ in simulation-type exercises) also teach the student implicitly that there are different approaches to the same type of questions. All this would probably help to build the epistemology of law that resides on multiplicity rather than mono-systemic legal thinking.
This, nevertheless, is in direct opposition to the classical paradigm concerning using comparative law as a tool in teaching. Namely, it has been suggested by Kamba that it is of importance first to know about the theories of comparative law and things like methodology, classification and general features of legal systems. Now, if one seeks accurate knowledge about foreign law Kamba’s idea is certainly plausible. However, if one uses comparative/foreign law material as a constructivist tool in primary legal learning while building the legal epistemology of a learner (undergraduate), then, the situation may be completely different. Instead of accurate and rigorously gained knowledge, comparative/foreign material would be used to build a legal mind that starts from many possible solutions, instead of one legal base, with the additives of ‘something extra’, something ‘not normal’.
The other important question has to do with the role of the law teacher. It seems clear that law teachers should pose rather general legal questions and then require the students to find out themselves. Obviously, the material used may be defined in the curriculum and the teacher is there to provide help as to how to use this material, and how to read textbooks about foreign law while trying to find out about different approaches. The teacher has great significance in this kind of teaching because there is always a risk that those students who have poorer skills do not simply make any true progress in their learning. So, it is highly relevant for the teacher to keep those students without adequate basic abilities up to speed with the learning process. This is simply because there is an inevitable risk that some of the students may adequately develop their skills, but may still have gaps in their legal knowledge and skills that are based on that knowledge. Also there is a further risk that the teacher must try to avoid: students may develop knowledge and skills in legal thinking and making legal questions and finding different answers to those questions, but all this may possibly have no meaning to the learner who may end up stressing the importance of national law. And, there is always a risk that the comparative/foreign law knowledge and skills may be forgotten.
In more practical terms, if comparative law and foreign law would be taught in the way that has been proposed here, we may assume that the second and third year of law school would be possible places to include it in the law curriculum. Also, it is not difficult to grasp that these sorts of courses should not involve classical lecturing but rather lengthy seminars requiring those taking part to concentrate fully on the learning process.
The proposed change contains both qualitative and quantitative elements. When it comes to quality the idea is to build the legal learning so that law students start from questions rather than answers provided by one national system. Quantitatively speaking, obviously the amount of comparative and foreign law material should be larger than what it normally tends to be. In practice, this would require taking a step further from McGill’s famous trans-systemic/bi-jural thinking toward trans-systemic/multi-jural type of thinking
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URL: http://www.austlii.edu.au/au/journals/LegEdDig/2009/32.html