Chanock, M --- "Is There a Curricular Core for the Transactional Lawyer?" [2004] LegEdDig 36; (2004) 13(1) Legal Education Digest 5

Is There a Curricular Core for the Transactional Lawyer?

M Chanock

[1993] LegEdDig 34; (2004) 13(1) Legal Education Digest 5

AALS Conference on Educating Lawyers for Transnational Challenges, May 2004, pp 1–8

This paper essentially describes a subject taught in the first year of an LLB degree. Australian legal education is an education in common law. While there has been considerable internationalisation and globalisation in legal education, it has focused on contacts with some parts of Asia, and on areas of commercial law, rather than on the basic grammars of other legal systems. Undergraduate curricula commonly include optional subjects in international law and international business law.

The old emphasis on the unique superiority and separateness of the common law has been re-narrated to fit seamlessly into contemporary developments in European law. But these new narratives have little meaning for Australian lawyers because, without the institutional impetus of the European Union which is changing English common law and English legal education, Australian law will not follow the new English path. The question then that remains is whether all Australian law students should be introduced to other legal systems, and how? If, in an era of internationalisation of law and legal practice, some knowledge of comparative law is deemed necessary, whose law and what level then becomes an issue.

Teaching a form of comparative law can be approached from different directions. It can simply be on a pragmatic level, e.g. these are the rules of their commercial and corporate law that you must know in order to do business with them. It can also be approached historically and philosophically.

The approach which has been taken at La Trobe Law has not been the simply pragmatic one, but nor has it been within the tradition of Comparative Law broadly conceived, being neither evolutionary nor functional in approach. We have used our introduction to Comparative Law purposively as a means of casting light on the assumptions, practices and doctrines of the common law.

With these context-setting comments the author proceeds to outline a course he teaches. There are no new professional pressures that necessitate the teaching of some principles of civil law to Australian students. The justifications must rather be: (1) intellectual, in that an element of comparative law enhances understanding of the common law; and also (2) broadly internationalist, in the sense of preparing students from the outset to encounter other legal cultures and systems.

The first six weeks of the semester follow directly on from a fairly generic first semester course which introduces students to court hierarchies and processes in Australia; issues of precedent and ratio decidendi; and to statute law and its interpretation. The second semester builds upon the picture of common law with a case law based examination of the processes of judicial reasoning. By the time students reach the explicitly comparative part of the course they have had two-thirds of their first year introduction to common law concepts and techniques. The comparative section starts by introducing students to the notion of legal culture: history, legal sources, institutions, ideology, discursive style and self image. It skates over the differing self images of common law and civil law.

The course then goes on to consider the different conceptual bases of public law in common law and civil law. Particular emphasis is put on the differing relationships between executive and judiciary, and the composition and status of the judiciary. Students are then introduced to the different purposes, styles and techniques of statutory drafting and interpretation in common law and civil law. The differences between common law judging and the use of precedent and civil law code-based judging without a formal doctrine of precedent are then considered.

With the public law framework outlined, the course then goes on to consider, in a deliberately contrasting fashion, the different legal processes in civil law and common law countries. A basic theme is the difference between inductive reasoning and analogy in common law, and the deductive methods of civil law. At the outset the idea of a law of obligations and the distinction between contractual obligation (voluntarily entered into in relation to specific parties) and legally imposed general obligations is outlined. The students are then introduced to the common law ‘objective’ basis of contract and the ‘subjective’ civil law basis, and the difference this makes in the matter of interpreting written contracts and admissible evidence in contractual litigation. A contrast is drawn between adversarial and non-adversarial views of contracting.

This course clearly does not teach students how to be practitioners in a transnational legal world. It tries to sensitise them to the idea of law and legal systems as cultures. In one sense its aim is broadly ‘jurisprudential’ in that it tries to get students to think broadly about the categories and purposes of law. A longer course could deal with other fruitful areas of contrast. The different family and personal law (particularly, for example, the laws of succession), or even more importantly, the different conceptual bases of the law of property, would be just as illuminating. The thinking behind the approach in the course is to embed at the start of legal education the idea of law as culture; to try to move away from the powerful hold which the logic, methods and doctrines of common law establishes in legal education in common law countries.

Perhaps the most significant aspect of the approach taken is that it seeks deliberately to distinguish differences and in this way it differs from a common approach to comparative law which has been to identify common approaches or functions in different legal cultures.