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Lo, V --- "Before competition and beyond complacency – the internationalisation of legal education in Australia" [2013] LegEdDig 19; (2013) 21(2) Legal Education Digest 12


Before competition and beyond complacency – the internationalisation of legal education in Australia

V Lo

Legal Education Review, Vol. 22, No. 1, pp 3-49

Globalisation has an elusive meaning, but its impact is being felt in various parts of the world. Accelerated by the rapid technological advancements in communication and transportation, globalisation impacts on the legal profession in two major ways: the appellations ‘global law firms’ and ‘global lawyering’ have emerged, and legal practitioners, both in the public sector and in private practice, are finding it increasingly unavoidable to deal with international law or the laws of foreign jurisdictions..

To prepare lawyers and judges who are professionally adept and culturally sensitive in a global environment, law schools in North America, Europe and Asia have undertaken initiatives to internationalise legal education.

Considering the Australian government’s current emphasis on internationalising the university curriculum and the fact that law schools in different parts of the world have taken steps to internationalisation of legal education, this study attempts to ascertain the current situation of internationalisation in Australian law schools and to identify the challenges on their path to internationalisation.

Except for international treaties and model rules formulated by international organisations, law is basically ‘local’ because substantive and procedural rules enacted by legislatures or developed by judiciaries vary from jurisdiction to jurisdiction, and admission to practise law is administered by national or regional authorities, whether by the ministry of justice, the judiciary, or a self-regulated professional association. Since legal education is locally oriented, law schools have been focusing on teaching domestic law subjects, whether mandatory or elective, to train students to become qualified for practice within their respective jurisdictions. Nonetheless, as globalisation gathers momentum, lawyers increasingly encounter international law or the laws of foreign jurisdictions, whether the dispute or transaction is transnational or seemingly domestic. Law schools or faculties, in turn, find it strategically sound to re-examine their curricula to determine whether they should incorporate an international perspective into legal education.

In a nutshell, an inclusive approach refers to the offering of international, comparative, or foreign law subjects or study programs in addition to the core curriculum, including such features as compulsory or elective international, comparative, or foreign law courses; concentration, stream, or specialisation opted by LLB, JD or LLM students; and a Master’s degree, diploma, or certificate in a specific area of international, comparative, or foreign law. In contrast, an integrative approach refers to the incorporation of international, comparative, or foreign law into domestic law subjects. The instructor focuses on domestic law, but discusses the laws of one or more foreign jurisdictions or relevant international treaties for the purpose of comparison. An experiential approach is the most popular because it requires the least amount of resources. Under this approach, the major avenues to learning foreign or international law and acquiring overseas experience are the summer program, exchange program, dual-degree program, and special study arrangements. Where the preferential approach is adopted, law schools allow students to study abroad international, comparative, or foreign law courses that cater to their needs and interests in the absence of any formal partnership or exchange agreements; to conduct independent research projects under the supervision of law academics; to participate in international moot competitions; to run student-edited international and comparative law journals; and to undertake internships or externships with international organisations or international law firms.

In recent years, the internationalisation of tertiary education has become a significant mandate for Australian universities. Internationalisation is one of the assessment criteria in conducting an Australian University Quality Assurance (AUQA) audit. Not only must universities formulate policies and strategies to internationalise tertiary education, but it is also the case academic disciplines within each university need to explore ways to internationalise their respective curricula.

In June 2004, the ILET Committee of the ILSAC published a report about the internationalisation of the Australian law degree (‘ILET 2004’).

The ILET Committee did not conduct a comprehensive survey of the extent of internationalisation in Australian law schools, but sought to assess informally the then-current strategies adopted by law schools to respond to the globalisation of legal services.

Based on the data collected and interviews conducted, the ILET Committee made the following findings. Most law schools did not consider the internationalisation of the law curriculum to be a priority. In fact, law schools generally considered the introduction of public and private international law and comparative law electives sufficient for preparing graduates for contemporary legal practice. Australian law schools had not adopted coordinated strategies to respond to the impact of globalisation on legal services, and they should provide a genuinely internationalised legal education to ensure that law graduates could compete effectively in a global market and to attract fee-paying students from overseas to study law in Australia.

Eight years have passed since the publication of ILET 2004. To ascertain the current situation of internationalisation, 32 online audits of Australian law schools were conducted between October 2011 and January 2012. To obtain an accurate and complete picture, a comprehensive study based on appropriate methodologies, with the cooperation of all Australian law schools, and supported by a research grant, needs to be performed. For the time being, these online audits provide a ballpark account of the current situation of internationalisation among Australian law schools.

Although the websites of the majority of Australian universities acknowledge the importance of internationalisation and set forth their goals and strategies for internationalising their curricula, only about one-third of the law schools specifically state their goals, plans, or strategies to internationalise legal education. Nonetheless, irrespective of whether internationalisation is consciously pursued, all of the law schools display, in their curricula, features that reflect the preceding four pedagogical approaches.

All of the law schools audited offer international, comparative, or foreign law courses in their undergraduate programs, ranging from as few as several courses to as many as 30 courses. Although most of the international, comparative, and foreign law courses consist of public international law, human rights law, international trade law, and comparative law, about one-half of the law schools offer Asian or Islamic law courses, almost one-third of the law schools offer European law courses, three law schools offer US law courses, and one law school offers Canadian law courses.

Apart from the offering of international, comparative, or foreign law courses, almost one-half of the law schools offer an international law ‘specialisation’, ‘concentration’, or ‘stream’. Likewise, about one-third of the law schools award Master’s degrees, diplomas, or certificates in specific areas of international, comparative, or foreign law. Accordingly, most Australian law schools have adopted the inclusive approach in one way or another.

To provide opportunities for students to study and gain experience abroad, about two-thirds of the universities audited offer summer or short-term programs overseas for various disciplines, either on their own or in collaboration with foreign universities, even though it appears that only some law schools in these two-thirds run their own intensive or short-term programs. For longer periods of international exposure, such as one or two semesters abroad, all of the universities have exchange agreements with overseas universities, while some law schools have also signed exchange agreements with foreign law schools on their own.

Moreover, to enhance domestic law students’ exposure to foreign laws and increase the number of international students, several law schools have also resorted to joint or dual-degree programs. That is, a student studying in a program jointly run by two law schools will receive one certificate issued by both schools, whereas a student in a dual-degree program will receive separate certificates from each law school.

Whether Australian law schools have adopted the integrative approach cannot be discerned from information posted on the Internet. Even if the subject outline states that international or comparative law will be incorporated into the course, it is unclear how the international or comparative legal knowledge is imparted. Given the large number of legal issues to be covered in each core subject, the instructor can teach little, if any, international or comparative law in one semester. In any event, it is unclear how vigorously academics who are interested in international, comparative, or foreign law pursue such research endeavours, how often they incorporate international, comparative, or foreign law into domestic courses, and whether they incorporate domestic law into international, comparative, or foreign law electives.

Apart from qualified staff, the incorporation of international, comparative, or foreign law into domestic law courses also hinges on the availability of teaching materials. Like other jurisdictions, teaching materials on international law are readily available in Australia, but materials on comparative and foreign laws are limited. Thus, instruction in comparative and foreign laws necessitates the compilation of teaching materials, and this requires academics who are not only interested in those laws but also willing to spend extra time on preparing teaching materials that are not readily accessible.

To support the internationalisation of legal education, some Australian law schools have also undertaken efforts to build the necessary infrastructure. First, some law schools have either set up research centres or institutes or joined research networks on international, comparative, or foreign law. Research centres or institutes can cultivate and strengthen interests in international, comparative, or foreign law through conferences, symposia, publications, and research assistantships; organise training courses for academics who are interested in enhancing their knowledge in international, comparative, or foreign law; and assist in developing teaching materials for international, comparative, or foreign law courses. Second, several law schools have created administrative positions to promote internationalisation, such as the Associate Dean (International) and the Director of Internationalisation and International Students, even though the recruitment of international students, rather than curricular development, may be their primary focus. Third, library collections of international, comparative, and foreign law materials, whether they are books, journals, or subscriptions to online databases, can play a significant role in the internationalisation of legal education.

As a result, some Australian law schools have resorted to multiple channels to internationalise their curricula. Nevertheless, it is not clear how their strategies and concomitant measures have operated in practice.

The preceding findings reveal that the internationalisation of legal education in Australia has made only small strides since the publication of ILET 2004, and only a handful of the same law schools are willing to undertake systematic efforts and coordinated strategies to internationalise their curricula. It appears that most, if not all, of the ILET Committee’s recommendations have not been adopted or implemented.

As ILET 2004 explains, most Australian law schools do not consider internationalisation to be a priority, and that tokenism has hindered the development of internationalisation. The findings from the online audits of 32 Australian law schools inevitably lead to the same conclusions.

Tokenism, therefore, remains a significant stumbling block on the path to internationalisation.

Where law schools are committed to internationalisation, the Priestley 11 subjects and the concomitant admission criteria not only limit the number of electives that students can take, as explained in ILET 2004, but also deplete the time available for incorporation of international, comparative, or foreign law into core subjects and diminish students’ interest in pursuing legal knowledge beyond domestic law. Over the years, core courses have been covered in breadth rather than in depth, even without incorporating international, comparative, or foreign law materials. Thus, it is unrealistic to expect instructors in core courses to teach international or comparative law in addition to the broad range of issues to be covered under domestic law.

Apart from tokenism and the Priestley 11 requirements, Australian law schools face the dilemma of having competing demands but limited time, finance, and human resources.

First and foremost, in recent years, skills-based legal training has emerged as the top priority of many Australian law schools. Although Australian law graduates have an opportunity to receive skills-based training in the Professional Legal Training (PLT) program and normally receive on-the-job training through ‘articles of clerkship’, many legal educators believe that skill components should be incorporated into the core curriculum.

Given this emphasis on skills-based legal training, which will consume a substantial amount of time available for learning in a three-year or four-year program, it is understandable that some law schools focus on incorporating skill components into, rather than expanding the substantive contents of, the current curriculum.

At the same time, Australian law academics have increasingly endorsed the view that legal education should not just train ‘legal technicians’ who are adept in applying the law to the facts to solve legal problems, but that law graduates should be aware of the relevant economic, political, social, cultural, and environmental contexts in which the legal profession operates. To an extent, this view coincides with the preference of prospective employers, such as law firms and big accounting firms, to recruit all-round and relatively mature law graduates over young graduates who have limited life experience. Thus, interdisciplinary study has emerged as an important goal to achieve in administering legal education.

To an extent, these competing demands reflect the contending philosophical views among law teachers regarding law teaching and the role of law schools. Some law teachers believe that the main mission of law schools is to impart vocational training, while others believe that law schools should not merely inculcate legal principles: that students should also understand the interplay between law and various facets of society. In any event, these competing demands put a heavy strain on the temporal, financial, and human resources of Australian law schools. The duration of study for a law degree cannot be too long, given the financial burdens on students and their parents. Given the limited resources of Australian law schools, it is no surprise that academics advocating internationalisation have not been able to make significant inroads.

Similar to law schools in other countries, one key element of the success of internationalisation in Australian law schools is the availability of instructors who are qualified and willing to teach international, comparative, or foreign law courses. As discussed above, the majority of law academics in Australia specialise in domestic law.

Ideally, teaching is aligned with research to reach the optimal level of efficiency and to impart cutting-edge knowledge to students. However, the synergy between teaching and research often does not come to fruition in Australian law schools because law academics, except for those in large and well-funded universities, are required to teach core courses with large student enrolments, regardless of what areas of research they would like to conduct.

To solve the problem of the scarcity of qualified teaching staff, some Australian law schools, as discussed, send students abroad to study international, comparative, or foreign law courses listed on their curricula, while others invite visiting academics from overseas to teach international, comparative, or foreign law courses. However, it is unclear how many of the overseas visitors or exchange academics teach courses, conduct research only, or do both. In any case, although visiting academics may teach subjects within their expertise, it is unlikely that they will integrate Australian law into their courses, especially because most of them visit Australia for a short period of time.

Accordingly, Australian law schools also have to deal with the issue of staffing on the path of internationalisation. With respect to teaching assignments, there is a tension between equity and efficiency. Although visiting professors and lecturers from abroad can alleviate the staffing shortage to a limited extent, co-teaching by visiting and local academics entails much coordination, while teaching Australian and non-Australian laws in separate classes is not conducive to an integrative approach.

Except for international law that has an impact on Australia, such as the United Nations Convention on Contracts for the International Sale of Goods and the incorporation of its provisions into the Sale of Goods Acts, most law academics are not interested in comparative law or the laws of foreign jurisdictions. Australians are proud of their legal system, and many people do not envisage that Australia can learn from legal systems other than those of the UK and US. In this respect, legal ethnocentrism may have played a role.

The proposition that legal ethnocentrism exists in Australia is very likely to generate defensive criticisms. However, one question — how often law instructors ask international students, especially those in the postgraduate programs, to explain to their classmates what the relevant legal provisions of their home countries are, or to comment on the Australian regulatory framework for particular legal issues — may shed light on the fact that most law academics in Australia are not interested in learning how other jurisdictions handle the same or similar legal problems, or in drawing lessons from foreign regulatory regimes to expand the students’ horizon.

Notwithstanding that some academics, judges, and lawyers are visionary and progressive, the legal profession is also known for its conservativeness. Coupled with conservativeness, complacency makes it difficult to discern the need for further refinement of the Australian legal system and any changes in terms of internationalising the law curriculum.

With the liberalisation of trade, the legal services sector is facing fierce competition both at home and from abroad. In a competitive environment, it will be sensible for law firms to recruit junior associates who have been properly trained for an increasingly globalised legal market. Likewise, as international and transnational disputes increase due to globalisation, it will be advantageous to have judges and arbitrators who not only understand the relevant substantive and procedural laws, but also appreciate the complexities of transnational dealings. Hence, Australian law schools should examine their present curricula to see whether their programs can accommodate the rising demand for ‘global lawyers’.

Geographically, Australia is close to Asian countries. Australian law schools can capitalise on their strengths by offering programs with an international or comparative focus or creating partnerships with law schools in Asia. Assuming all things (tuition, book and stationery, cost of living, and visa requirement) being equal, international students will probably choose to study more internationally oriented law degrees in North America that will prepare them better to compete in an increasingly globalised legal market than an Australian law degree, unless they are only interested in Australian law and plan to stay in Australia to pursue domestic practice.

More importantly, instruction in international, comparative, or foreign law has intrinsic academic value. That is, once students have been exposed to differences in legal approaches, they will no longer think that the Australian solution to a legal problem is the only way. This, in turn, prepares them to harness new ideas and formulate innovative solutions to legal problems. Likewise, if legal problems are viewed through different lenses, students will learn to challenge fundamental assumptions and ingrained doctrines in the Australian system, which will result in the expansion of their outlook. On one hand, the study of international, comparative, or foreign law can reduce provincialism and promote critical thinking, which paves the way for statutory or judicial reforms in Australia. On the other hand, if diplomats, government officials, and legislators have the opportunities to study international, comparative, or foreign law when they are law students, they will be better prepared to participate in the negotiations and drafting of harmonised or unified standards worldwide in the sense that they will be more open-minded to accommodate diverse legal perspectives.

In an increasingly globalised environment, Australian law schools may choose to remain reactive; however, proactivity is the quintessence of leadership. Considering the fact that the issue of internationalisation has unfolded other interrelated issues confronting Australian legal educators, it may be apposite for Australia not only to take initiatives to internationalise the law curriculum, but also to consider more comprehensive legal education reforms.


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