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Arthurs, H W --- "Law and learning in an era of globalisation" [2009] LegEdDig 35; (2009) 17(3) Legal Education Digest 15


Law and learning in an era of globalisation

H Arthurs

10 (7) Ger L J, 2009, pp 629–639.

The optimists amongst us assume that human hands – our hands – shape legal education, that legal education shapes the law, and that law shapes the world. The pessimists contend that the process works in reverse, that the forces of political economy ultimately have their way with law as a system of social ordering, as a cultural phenomenon and an intellectual enterprise, and as the subject or object of study in law schools. I am a pessimist by nature, so I will begin on a pessimistic note. However, I am trying to overcome my nature, so I will end on what, for me, is an optimistic one.

Governments pass laws, enter into treaties, appoint judges, establish tribunals, oversee officials and police, and shape or respond to public attitudes concerning immigration, anti-social behaviour, the environment, and many other issues. They regulate the involvement of citizens with the legal system by adjusting the balance between social control and individual freedom of action, by opening or closing avenues for complaints and claims and by juridifying or de-juridifying citizens’ encounters with the machinery of the state. They influence the market for legal services by regulating the legal profession’s monopoly, providing funds for legal aid, hiring lawyers in the civil service and engaging private practitioners to perform legal work on their behalf. Their influence on law, and hence on legal education, is pervasive. However, governments act not in a vacuum but within a range of possibilities defined by the forces of political economy. In that sense, I claim, political economy ultimately determines the content of the law school curriculum, the attitudes and assumptions law students bring to their studies, the judgments and books which find their way onto law school syllabi and the research agenda of legal academics.

Nor do governments – and the forces of political economy – influence legal education only by indirection. They set higher education policies, establish the structure of legal education, license educational providers, provide funds for law faculties, impose fees on law students, require legal academics to meet quality standards in their teaching and research, and measure the success of law schools in recruiting top students and improving the job prospects of their graduates.

My pessimist’s conclusion, to reiterate, is that political economy does much to determine the ends and means of legal education and research. And because globalisation is a dominant influence on political economy, it becomes the 800-pound gorilla whose presence in our deliberations we can hardly avoid.

The question is: ‘how, exactly, will that gorilla make its presence felt’? In one sense, the answer is as obvious as the gorilla itself. Globalisation alters the material circumstances of states and of groups and communities within states. This restructuring of the economy leads to the reconfiguring of the market for legal services. In the United Kingdom, the decline of the industrial economy and the rise of one based on information technology and financial services has led directly to the decline of High Street law practices which serve small, local businesses and to the growth of large, city firms which serve a global clientele.

A quick tour of law school websites and calendars supports my hypothesis that globalisation has become a dominant theme. Some law schools have declared themselves ‘global law schools’, adopted a ‘global curriculum’, hired a ‘global faculty’, established research centres on ‘global law’ and entered ‘global partnerships’ with foreign institutions. Others have begun to offer courses on globalisation and the law, on global governance, global lawyering and global security – amongst many other ‘global’ offerings. Many have introduced global perspectives into conventional courses, acting either on the initiative of interested faculty members or as the result of explicit academic planning decisions. It is no coincidence that with the advent of globalisation, some of our best students decide to seek careers with global law firms or that some of our best scholars focus their research efforts on influencing the outcome of global legal issues.

So globalisation is a prominent new feature of legal education and scholarship. But does this prove the optimists right or the pessimists? Does it demonstrate that law schools have retained agency, that their new, global curricula, syllabi, pedagogies, staffing strategies and research agendas are the result of a conscious choice to embrace globalisation? Or does it confirm that law schools have indeed been forced to bend to the new realities of a global political economy?

Being a pessimist by nature, I tend to the latter view. My own sense is that we are experiencing what I call ‘globalisation of the mind’. Globalisation is associated not only with a change in our material circumstances and relationships, and not just with the adaptation of public policy, legal practice and legal education to new patterns of economic activity. Rather, globalisation involves a change in our social values, and in our fundamental understandings about what role law does play and should play in society. Globalisation is, in other words, an ideology.

Beneath this ideology lies a bedrock assumption: that governments, which interfere with the free flow of goods, services, capital and information (but not people) impair their capacity to maintain a dynamic economy. There may be good reasons to question this assumption, and to reject the conventional wisdom; but to do so requires a degree of daring possessed by few governments, not including yours or mine. Instead, most focus on creating a business-friendly environment by deregulating markets, decreasing corporate taxes and privatising certain public services. Such policies represent a significant reversal of the vaguely social-democratic impulse that dominated public policy making during the post-war period. Government then was meant to get involved in order to make things better; government now is meant to step aside for fear of making things worse.

Consequently, I think one can fairly say that Thatcher’s children – the students, lawyers and academic staff who came of age intellectually and professionally in the nineties – inhabit an ideological universe which differs from that of their predecessors, who came of age in the sixties or the thirties. The assumptions about that universe which they bring to their classrooms, common rooms and chambers, the optic within which they view legal issues, the scope and focus of their legal imaginations, what they write as law teachers or read as law students, how they define themselves as legal actors: in all these respects, Thatcher’s children have distanced themselves ideologically from their forbears. Globalisation – considered not just as political economy but as ideology – accounts in large measure for that distancing.

However, I am afraid that increasing numbers of legal actors – legislators, judges, senior civil servants, policy wonks, lobbyists, lawyers, legal academics and editorial writers – simply regard a globalised version of neo-liberal capitalism as the first principle of every nation’s unwritten constitution. This new constitutional grundnorm has a number of consequences.

First, and perhaps the most important, is that we have consciously or unconsciously adopted a particular version of the rule of law that emphasises the protection of economic interests against encroachments by the state, rather than guaranteeing individuals their political rights, access to public goods or defence against abuses of private power. You’ll all recall William Twining’s legendary encounter with a student in Khartoum, who couldn’t get the point of a torts case because he couldn’t understand what a camel was doing in the London Zoo. It will seem no less odd to future readers of the law reports that state law should once have been invoked by workers to protect their right to join unions, by poor persons to claim social benefits or by government agencies to regulate bus fares, land use or foreign exchange transactions.

Another consequence is that while today’s law students and staff may still feel at home with domestic legislation and judicial pronouncements, their successors are likely to feel more comfortable with global legal institutions, doctrines and processes. To be sure, some of these will have been established through state action, but many will owe their origins to initiatives by transnational businesses, discursive and professional communities, NGOs and sectoral associations which set standards, settle disputes, impose sanctions, generate meaning, propagate values and confer legitimacy.

Finally, globalisation has effectively de-coupled the idea of law from the idea of the state. Of course, for some time now the assumption that state and law are intrinsically and invariably linked has been questioned by legal pluralists and other socio-legal scholars. However, their work has been largely driven by case studies of law in pre-modern communities, and in modern or post-modern businesses, neighbourhoods and workplaces. Because these non-state legal systems exist prior to the arrival of state law, or subject to its let and tolerance or in its shadow, they could be dismissed as merely pathological or aberrational, as not challenging the notion that states alone can and do make ‘real’ law. However, recent studies of transnational corporations, commercial networks and business transactions seem to provide incontrovertible evidence that ‘law without the state’ prevails even – perhaps especially – in the most privileged precincts of global business, finance, communications and transport.

Once we acknowledge that non-state normativity plays an important role in key areas of the economy, we will have to learn to accept its importance in other contexts as well. This is likely to precipitate a major crisis in legal education. If states do not after all enjoy a monopoly over the making, promulgation, administration and enforcement of law, law teachers and law students will have to start using a new mental map to navigate ordinary courses in contracts, criminal law, labour law and family law. And to do so, they will need a new repertoire of intellectual skills. After all, by whatever means we have traditionally taught students to ‘think like lawyers’, we will have to do something different to teach them not to think like lawyers – or at least not like the lawyers we’ve been training up to this point. Instead of parsing judicial decisions, for example, they may have to peruse arbitration awards or observe mediators at work; instead of reading legislation, they may be asked to scrutinise corporate codes of conduct or consult ethnographic studies; and instead of being taught to fetishise fairness, rationality, predictability and clarity as law’s contribution to social ordering, they may find themselves learning to value pragmatism, imagination, flexibility and ambiguity.

You may be disconcerted by this description of the likely future of legal education following the advent of the ‘new normal’ and the decentring of the state. If so, you will be even more disconcerted by my next statement: ‘I have seen the future and it works’. The first person to make such a claim in those precise words was apparently an American journalist, Lincoln Steffans, on the occasion of his return in 1921 from a protracted visit to the Soviet Union. The future that Steffans saw most assuredly didn’t work, as he himself soon acknowledged. However, the future I have glimpsed – while no less revolutionary – is definitely more benign and possibly more long lasting. I refer to the new curriculum of McGill law school, in Montreal.

McGill decided about ten years ago, after a remarkably sophisticated and well-documented debate, to implement a unique polyjural or trans-systemic curriculum. That is to say, individual courses and the curriculum as a whole consciously integrate civil and common law perspectives, domestic and international perspectives, the perspectives of state law and of non-state legal systems, and legal perspectives with those of other disciplines. Incidentally, all of this is done in both of Canada’s official languages.

I want to make clear that McGill is not merely training law graduates for global law firms and enterprises, international agencies, transnational NGOs or other employers who might wish to hire young lawyers who are fluent in several languages and legal vernaculars. While many of its graduates do end up in just such careers, the architects of the new curriculum would strenuously deny that they were trying to prepare students to practice law in what they ironically refer to as ‘trans-systemia’. What then do they think they are doing? Clearly, McGill is attempting first and foremost to problematise the very notion of law itself. The present dean insists that the curriculum requires students to explore ‘what explains law as a social phenomenon, what is the nature of legal knowledge, what does it mean to think like a lawyer, [and] what it means to think like a citizen alive to law’s symbolic and persuasive attributes’.

Most legal academics would say that they want to take their distance from conventional understandings of law. However, McGill deserves special mention because it has so directly and explicitly taken up the challenge of thinking about legal education ‘without the state’. This is not to say that McGill’s curriculum is perfect, that it succeeds in its own terms, or even that the curriculum on McGill’s books resembles the curriculum in practice. Nor would I argue that other faculties of law can or should imitate McGill. Indeed, I am not going to talk about the actual experience of legal education at McGill, but rather about the McGill curriculum understood as an ideal-type, as a thought experiment in what might happen to legal education in this era of globalisation, neo liberalism and ‘law without the state’.

Because the McGill curriculum is trans-systemic, it challenges the notion that law’s logic is bounded, its values fixed, its processes ascertainable, and its outcomes predictable. Law in the McGill curriculum does not arrive on students’ laptops neatly encoded according to juridical family or conceptual category. Instead, legal systems and categories collide with and penetrate each other, reinforce and refute each other, in unpredictable ways. Civil or common law, religious or secular law, domestic or international law, state law or some other kind, all form part of the open-textured, complex, heterogeneous normative universe which students must learn to inhabit. Law, for the McGill student, is therefore found not only in statute books and law reports; it is found everywhere, inscribed in private documents, embedded in custom, extruded from transactions or experienced as conventions of discourse and routines of daily life. It denies students the comfort of the familiar: it asks them to imagine law as if they were someone else. This is a curriculum, in short, which assumes law to be radically indeterminate.

A curriculum built on the premise of law’s radical indeterminacy may be exhilarating for us as legal scholars; but for us as legal pedagogues, it poses great challenges.

The first has to do with what our students want from us. Meeting student expectations today is more important than we might prefer, given that the financial wellbeing of our law schools depends increasingly on our ability to persuade students to enrol here rather than there, to pay us significant fees and to incur debt to do so, and to signal their satisfaction by responding to surveys and making a success of their careers. And meeting student expectations is not only more important; it is more difficult, too, given that the ‘new normal’ of the current generation of students puts them at odds with many of our own assumptions and values.

What do law students want? They may begin with different career aspirations, bring different learning styles to the classroom and espouse different political views. But I would argue strongly that most law students want predictability. They want to see a clear point to their studies and a fixed purpose to their lives; they want structures, they want rules. They want, in other words, precisely what the McGill curriculum is designed not to give them.

How to square this circle? One way is to give them what they want. We all do this to some extent, and have developed standard justifications for doing so. Much of conventional legal life is in fact not that unpredictable, we tell ourselves: state law ends up punishing many if not most criminals, tortfeasors and contract breakers. Justice isn’t that irrelevant to legal rules or outcomes, we cheerfully acknowledge: if nothing else, impassioned appeals to justice have great potential to mobilise policy makers and persuade judges. And finally, agnosticism about the sustainability of law’s empire isn’t that useful as a pedagogic strategy; students too easily confuse it with cynicism. But for all that such concessions to student angst are warranted, they describe a strategy of ‘stoop to conquer’.

A second approach is somewhat more edifying. Law schools like McGill are able to engage in ‘niche marketing’. That is, they try to ensure that the students they attract are those most likely to feel at home in the pedagogic environment they offer. There is much to recommend this approach. It is honest; it ensures that students and faculty share a sense of common purpose; and it helps to more closely align pedagogic philosophy and pedagogic practice. On the other hand, niche marketing has its drawbacks. It assumes that prospective students have adequate knowledge and can make meaningful choices; it represents an attempt to impose closure on an approach to law whose distinguishing characteristic is supposed to be its openness; and it smacks a bit of incest.

A third approach – far more difficult, but far more satisfying – is to engage students in serious conversations which will free them from the tyranny of rules. This requires that we adopt a certain posture in the classroom. First, we must give students confidence that their experiences of family and school, and their encounters with people, culture and work is somehow relevant to their legal studies. This will provide them with a vantage point from which to begin to question the wisdom dispensed by judges, legal texts and ourselves. Second, we have to convince them that despite our own comprehensive knowledge of law, sociology, philosophy, politics, economics, history, astrology, sport and sex, we still value questions more than answers. Third, we must show them how to use their newfound confidence not just to challenge the instructor and interrogate the materials being taught, but to dare to ask questions of themselves. And finally, we must help them get used to the fact that they are embarking on a course of study, and ultimately on a career, that will require them to live at ease with multiple truths, irresolvable conflicts, abundant ambiguities and ironies galore.

Whatever its’ other merits, it seems to me that the McGill curriculum is admirably designed for this last approach to teaching.


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