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Waters, C P M --- "Reconceptualising Legal Education after War" [2007] LegEdDig 50; (2007) 15(3) Legal Education Digest 40

Reconceptualising Legal Education after War

C P M Waters

[2007] LegEdDig 50; (2007) 15(3) Legal Education Digest 40

101 Am J Inter L, 2007, pp 382–403

The close of the Second World War brought with it an urgent academic discussion on legal education in the United States, the United Kingdom, and Canada, among other countries. The literature spawned by this discussion sought to chronicle law schools’ experiences of the war years. The discussion went beyond logistics, however, as a widespread sense took hold among legal academics that legal education could be — indeed needed to be — re-imagined. In aspirational language, law teachers consistently spoke of an ‘opportunity’ to remake legal education in terms of curriculum reform and teaching methodology.

Today, reform of postconflict legal education is just as urgent for war-torn societies as it was following the Second World War. Graduates of law schools must be adequately prepared for the roles they will assume in reconstructing the domestic postwar legal sector, as well as participating in regional and international legal regimes. Unfortunately, however, postconflict legal education has not been rigorously studied since the Second World War. Indeed, there is virtually nothing written on the topic qua topic; the few articles that do deal with legal education in the wake of particular armed conflicts tend to pathologise those experiences as context specific.

It is surprising that the topic has not been adequately addressed since three well-developed areas of scholarship and policymaking might be expected to include postconflict legal education in their purview: legal education, education and conflict, and the rule of law. The growth in quality and quantity of scholarship on legal education from the 1980s has resulted in a significant body of expertise on matters such as teaching methodology, the aims and purposes of legal education, the law school experience, and legal academics. Legal education as a subject is now firmly established in terms of profile, specialist publications, and associations. Overwhelmingly, however, the scholarship focuses on Western, stable jurisdictions and, while legal education in developing countries is studied to some extent, references to armed conflict and legal education are rare.

Writers in education departments have looked more explicitly at the link between conflict and education than their counterparts in law. But most of these studies look at primary and, to a lesser extent, secondary education. Higher education is rarely mentioned in the specialist literature (and when it is, the emphasis is usually on teacher training). This focus is understandable in that achieving universal primary education typically constitutes a pressing challenge in conflict-affected areas. Finally, one might have expected to find more on postconflict legal education in the broader field of rule-of-law reform/postconflict legal reconstruction, especially given the recent focus on developing postconflict justice ‘tools.’ To be clear, numerous references appear in both the academic and the policy literature — including the recent Iraq Study Group Report — on retraining jurists after conflict. These, however, focus on ‘quick start’ training for judges and prosecutors. Discussion of legal studies in higher education is curiously neglected.

Universities will often be deliberately targeted for attack during armed conflict. There are at least three possible reasons why. They may be perceived — especially in the civil war context — as politicised places tied to ideological and practical aspects of conflict. Universities may also be targeted in an attempt to prevent the creation of leaders. Finally, and this holds especially true in cases of ‘ethnic cleansing,’ universities may be targeted for their symbolic or cultural value, as shown by the shelling of the University of Sarajevo during the more recent Bosnian conflict. Although not targeted as university buildings per se, the premises may also be damaged by indiscriminate attacks.

Where university buildings were appropriated by military or paramilitary forces rather than destroyed, the structures may have been altered, contain unexploded ordnance, and/or been pillaged of furniture, office equipment, books, and student and employment records. Looting by civilians can also take place in the domestic power vacuums left after war.

The Taliban regime in Afghanistan, for example, allowed the nearly complete destruction of the University of Kabul’s law library. Consequently, one of the early challenges for authorities following the removal of the regime was to find copies of pre-Taliban laws, which, although still ‘on the books,’ had become irrelevant under the regime.

Obviously, war also has a physical and psychological impact on faculty and students. Military recruiting (voluntary or through conscription), death, injury, and forced migration remove people from classrooms and administration. Just as universities as a whole may be targeted, so too may be certain categories of people there because of their actual or potential leadership.

One of the intriguing aspects of the human impact of wars is that, despite significant dips in student numbers during conflicts, enrollment quickly bounces back afterward and, indeed, often exceeds prewar levels.

Various factors explain the rises in law student numbers and not all of them are directly caused by conflict. But, while any such inquiry requires further empirical work, the end of conflict in and of itself seems to bring about new demand for lawyers and places at law schools. Law is seen as crucial to rebuilding a country by preventing further conflict and serving as a source of jobs. Some legal topics, notably international law, take on newfound importance, as experts in the field are needed to help reintegrate conflict-affected societies into the international community or to manage postconflict justice (informed by international human rights or international criminal law norms) at home. Law degrees will also be relevant to activities in postwar governance, democratisation, and reform of the economic and security sectors. As a result, the stock of law departments rises, even while the popularity of departments in the sciences and humanities may drop.

It is an obvious point perhaps, but war changes law, and law schools must grapple with these changes — even those of the victorious parties. Of course, change will be most drastic for the ‘losers’ and in cases of wholesale regime change or international intervention. In each case, the value of professors’ legal knowledge, hence the value of what they teach, may be eroded. Following the withdrawal of Serb forces from Kosovo in 1999 and the imposition of a UN transitional administration, defined legal concepts were overturned. UN Security Council Resolution 1244 of 1999 gave wide discretion to a special representative of the secretary-general (SRSG) to pass regulations for Kosovo, essentially constituting governance through administrative fiat, albeit with benevolent intentions. These regulations imported legal concepts, including European and international human rights concepts that the local academy only vaguely understood. Furthermore, postconflict law brings with it certain legal problems that may never have been dealt with in peacetime and as to which expertise — including international law knowledge — is lacking. These include war crimes trials and restitution of property for returning refugees and internally displaced persons.

It often takes some time for legal education to adapt to postconflict realities. At the end of the 1994 genocide in Rwanda, many of the Tutsi who had been educated in exile in neighbouring countries found themselves back in Rwanda with common law, English-language degrees, which were of little immediate use in Rwanda’s French-language, civil law system. Graduates had to pass an internationally sponsored conversion law examination before practicing.

It should be stressed, however, that legal academics are not always passive participants in legal change. At times they rebel against change and at times they are in its vanguard.

There are many variables in determining how well law schools perform following armed conflict. And, of course, there are countless variations in the postconflict environment in terms of such factors as security threat, levels of enmity, and passage of time since the conflict that will affect what is possible with respect to law school contributions to reconstruction and reconciliation. Nonetheless, a working hypothesis can be made. The first is that, while law schools have a mixed record concerning what might be called the technical aspects of reconstruction, they have done a poor job on reconciliation or — perhaps more realistically termed, given the bitterness that follows conflict — ‘social reconstruction.’

Especially where the international community has helped with funding and expertise, law departments have shown themselves able to modernise teaching methods, to make curriculum reform that at least partly reflects the needs of rule-of-law-based states integrated into the international community, and to expand the intellectual dimension of law through faculty and student exchanges and conferences.

If examples of technical reconstruction are apparent, however, instances of social reconstruction are harder to find, particularly after ethno-political conflicts. In these cases, law departments may hamper reconstruction or reconciliation in three related ways: through discrimination, the substantive law taught, and failure to inculcate a culture of peace and reconciliation.

The effects of discrimination are most often felt in admissions, where it may manifest itself more in practice than in policy. For example, while Bosnia’s Banja Luka Law Faculty has set no formal ethnicity requirements for admission, candidates must write an admissions test on, among other things, Serbian literature and history, which makes the faculty inaccessible to most non-Serbs.

If direct discrimination is relatively easy to spot and monitor, the way the substantive law taught hampers reconciliation is more nebulous, though as important. Law can be a symbol or an instrument of division in ethnic conflict, not only when it is discriminatory or blatantly contrary to international norms as in an apartheid regime, but also, under some circumstances, when ordinary legislation such as a civil code is promulgated. Law as a cultural marker, like folklore or language, can be manipulated into a divisive force.

Not only are the foundational documents of new or would-be states stressed as being legal and natural, but also the disappearance of prior laws is seen as progressive. In these cases, nationalist legal visions are reified and legal pluralisms denied. Unfortunately, once this reification of culture, ethnicity, race, or religion takes place — manifested through law and political arrangements — it becomes difficult to abandon without losing face.

As noted in the introductory pages, educational researchers have amassed an impressive literature on education and conflict. One particularly impressive initiative was the promulgation in 2004 of Minimum Standards for Education in Emergencies by the Inter-Agency Network for Education in Emergencies. The standards — built on a broad consensus of relevant international and local actors — set out tools and standards for reconstructing education in emergencies, including armed conflict. While nominally applicable to all forms of education, they focus in fact — by their terms, but particularly with respect to subsequent implementation — on primary education.

At least four actors may contribute to the restoration of legal education: intergovernmental organisations (IGOs), NGOs, foreign universities, and donor states. IGOs, notably the United Nations and its agencies, but also regional organisations, such as the British Commonwealth and the Council of Europe, can play an important role where the political decision is made to engage. UNESCO is the lead UN agency in the field of postsecondary development assistance. Though its assistance to postconflict universities has been ad hoc to date — the organisation has not traditionally worked in the field of emergency humanitarian assistance — it appears to be developing a more coherent approach to the postconflict environment. In the emerging ‘cluster approach’ to humanitarian emergencies, however, UNICEF is the lead agency in the field of educational assistance. Because the organisation is mandated to protect and promote children’s rights, higher education has not been placed squarely on the agenda of humanitarian response. Of other UN bodies, the United Nations Development Programme and the Office of the High Commissioner for Human Rights have concentrated their legal education efforts on the public at large, vulnerable groups, professions, and security forces, but they occasionally work with law schools on curriculum reform, staff training, and stocking libraries.

In 2004, the UN secretary-general, in his Report on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, called for rule-of-law efforts to be made a central plank of postconflict reconstruction. After noting that legal education has sometimes received short shrift, the report states that ‘[l]egal education and training and support for the organisation of the legal community, including through bar associations, are important catalysts for sustained legal development.’ It remains to be seen whether the report — and the recent focus on developing a package of postconflict justice ‘tools’ — will increase UN support for legal education at universities.

NGO programs focused on academia may be interdisciplinary or specific to law. The American Bar Association’s Europe and Eurasia Division of the Rule of Law Initiative, on the other hand, assists law faculties only, in areas such as curriculum reform. The International Committee of the Red Cross (ICRC) should also be mentioned here — though it is a hybrid between an IGO and an NGO — for disseminating literature and offering courses on international humanitarian law in many postconflict law departments.

Foreign universities, usually with funding from official aid agencies in their home countries, seek collaboration (‘linking’) with postconflict universities to exchange faculty, provide scholarships for students, and donate books.

Finally, individual donor states, or their official aid agencies (e.g., the United States Agency for International Development and the UK Department for International Development) distribute direct aid.

Although describing basic rather than higher education, the author of an influential report for UNICEF argued that after war ‘the education system must be rebuilt rather than merely re-instituted; it must change in profound ways.’ In the context of basic education, such rebuilding has meant, among other things, democratisation of the classroom, equal access for boys and girls, and peace education. This transformative approach to education not only serves to improve teaching and learning per se, but also assists in preventing future conflict. What we have not seen at law schools, at least in these two conflict-affected regions, is profound or transformative change.

Turning to the post-Cold War ethno-political conflicts, we may then ask how legal education can better assist in national reconciliation or at least social reconstruction. First, essentialism in law teaching must be avoided. Ambiguities and legal pluralisms that accord with basic human rights standards must be recognised and accepted. The comparativist Patrick Glenn is one of the few scholars who have explicitly tackled — if in passing — the link between legal diversity and peace. His suggestion that we should avoid hegemonic thinking about our own particular legal traditions is à propos: ‘Acting positively to sustain diversity in law should improve communication between lawyers of the world. It should enhance the prospect for peaceful settlement of disputes, enhance the legal mission.’ This diversity in legal learning requires a cosmopolitan approach to law, with comparative law and international law at its heart, and every effort should be made to ensure the place of these subjects on the curriculum. Opinions may vary, as they do in stable societies, on whether or not traditional categories of law — comparative, public international, and private international — can or should be taught together in the same introductory basic course on transnational law. In my view, course boundaries matter far less than ensuring that the relevant subject matter is taught and a parochial curriculum avoided.

Public international law themes in particular can be a positive force in postwar reconstruction. At any rate, nowhere is it more appropriate to teach international law to all law students (and indeed beyond) than in the postconflict setting, where peace and security matters are at the fore and knowledge of international law underpins an array of justice and reform matters.

Teaching international law by itself, however, will not suffice. How it is taught is as important. It should be taught in a process-oriented way — stressing the importance of the peaceful resolution of disputes — and not as a vehicle to reinforce a binary, intransigent opinion (territorial integrity or self-determination) or to perpetuate an exclusionary vision of international legal history. Ideally, these courses should be team taught by lecturers from different communities or even by international and local lawyers. Team teaching in these circumstances not only affords the usual pedagogical benefits of the method (fostering teamwork, forcing clarifications about the goals and methods of a course), but also serves to keep a course both sufficiently cosmopolitan/pluralistic and contextually/locally grounded. While a diversity of approaches to international law courses in terms of topics emphasised and the extent of theoretical rigour is unobjectionable, the emerging consensus that rule-centric teaching is insufficient should be borne in mind; particularly in postconflict societies, where students are all too aware that institutions and politics matter, such an approach will be met with cynicism. These proposals represent concrete steps for postwar curriculum reform that can be taken, and, where the international community is involved, it should use its leverage to ensure that they are taken.

Underlying these concrete suggestions is a somewhat ephemeral, but critical idea: for sustainable social reconstruction, the methodology of education itself must fundamentally shift to education for peace.

This reconceptualisation requires curriculum reform — with emphasis on the internationalisation of the curriculum — and more generally the inculcation of an ethos of education for peace.

Finally, it should be stressed that education in conflict or in the postconflict stage should not be unduly pathologised. As one expert on education and conflict puts it: ‘there are grave omissions — or contradictions — in the curricula of both stable and conflictual societies, omissions which contribute to a continued acceptance of war.’ Outsiders engaged in legal education reform after war must be aware that seemingly stable societies have not got it all right. One need think only of the acrimonious ‘culture wars’ on U.S. campuses, the paucity of international law content at some UK law schools, or the disregard by some Canadian law departments of the country’s bijuridical traditions to realise that the ideals expressed after the Second World War have not yet been achieved in the Western world. As in all international reconstruction efforts, the importance of humility on the part of outsiders must be underlined.

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