Smits, J --- "European legal education, or: how to prepare students for global citizenship?" [2011] LegEdDig 6; (2011) 19(1) Legal Education Digest 19

• European legal education, or: how to prepare students for global citizenship?

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European legal education, or: how to prepare students for global citizenship?

J Smits

Maastricht European Private Law Institute (M-EPLI), Working Paper No. 2011/02, 2011, pp1-17

Teaching law in an international curriculum is fundamentally different from teaching (one or more) national laws: it assumes not only a different conception of law, but also a different attitude of both lecturer and student. For programs that offer a complete transnational curriculum (such as McGill and Maastricht), it is therefore necessary to identify what makes them unique (even though some of the provided answers can also be valuable for programs devoted to the study of two or more different national jurisdictions).

Until around 1990, legal education in Europe was primarily national: the law of one jurisdiction was taught to students of usually one nationality by lecturers of that same nationality, aiming at the production of graduates that would mostly work within their country of study. In the last two decades, however, this changed dramatically: apart from courses on international law and European law (that were already part of the traditional law curriculum), almost everyone now accepts that it is no longer possible to teach the classical areas of law (such as private law, constitutional law, criminal law and tax law) without taking into account European and international influences. This led to whole new fields of academic study: many European law faculties now have professorial chairs for, e.g., European private law, European criminal law and European tax law to name just a few. It is also widely accepted that it is beneficial to have students and lecturers from abroad at one’s own law school, and perhaps even better to have one’s own students and lecturers spend some time at a foreign university.

As indicated above, this phenomenal change in attitude led to different degrees of internationalisation in individual law schools.

The first argument in favour of a truly European education is that the law itself is no longer a national phenomenon, but increasingly flows from other than national sources. In private law (as well as in all other traditional sub-disciplines), we accept law of European and supranational origin, as well as a variety of rules originating from private initiative (ranging from the Common Frame of Reference for European Private Law to standard form contracts and codes of conduct on corporate, social and environmental responsibility). Any modern legal education should take these norms into account, not only because they are indispensable in understanding the existing law (and consequently play a big role in practice), but also because it makes the students realise that law is not necessarily tied to the nation-state. This does not mean that the law is taught ‘without the State’, but it does imply that a legal education exclusively based on the intricacies of national legislation and court decisions is a poor one.

At this point, it is important to address a likely counterargument. It is sometimes argued that a European legal education is impossible because a European private law, criminal law or constitutional law do not really exist: such fields would (at least to a large extent) not be based on the authoritative statements of legislatures and courts, but at best be ‘a brooding omnipresence in the sky’. The flaw with this argument is that it gravely misunderstands the nature of legal authority. Apart from the fact that there is a rapidly increasing number of European treaties, regulations, directives and court decisions in these fields, it denies that the authority of legal sources is not necessarily dependent on the political institutions. In fact, it is often the legal profession and not the legislature that determines the authority of a text. This makes it important not to limit legal education to those elements that are laid down in legislation and court decisions: law schools should not only react to legislatures and courts, but they also play an important role in shaping the future law.

Even when the graduates stay in their home country, they are increasingly advising multinational and foreign clients who want to know about different solutions. This calls for a much more rigorous international curriculum in which alternative approaches are sketched from the first day onward. Teaching one national law does not adequately prepare students for the world they have to work in.

The second argument in favour of an international legal education is that it better meets the requirements of an academic study. In brief, students should learn to use the law not only as an instrument, but also to think about law in an intellectual way.

This means that an academic legal education, in my view, should educate students about the contingency of the law. They should learn about the fact that different societies give different weight to issues such as social justice, efficiency, equality of man and woman and the value of life. They should learn to think through the consequences of choices made in different societies, to understand why these choices were made, and to argue why they think one choice is better than the other. If this ‘dialogue with otherness’ is at the core of legal education – as I think it is – to focus on only one or two jurisdictions would be a poor and rather limited curriculum.

One should realise that of the almost 1000 years in which law is taught at universities, the last 200 years have been exceptional: before 1800, students learnt about more than one law, be it Roman law and Canon law, common law and mercantile law or Roman law and local law. It was self-evident that all these laws had a rationality of their own and could not be brought under one heading.

The final argument for why an international legal education is preferable over a national one is that it will attract better motivated students. A European or cosmopolitan legal education can be a real intellectual challenge, attracting more capable students and producing better graduates.

Instead of Dutch, English or Polish law, the curriculum then consists of courses on European Private Law (possibly split into European Contract Law, European Tort Law and European Property Law), European Criminal Law, European Constitutional Law, European Procedural Law and European and International Law per se. Courses on these topics are at the heart of any law study in Europe, not only because many countries require these courses in order to enter the bench and the bar, but also because of their substance: they make the discipline of law.

Another aspect of the question is much more difficult to answer: what do we actually teach in these ‘European’ courses? In so far as private, criminal, constitutional and procedural law are governed by binding rules of European origin (as is increasingly the case), it is still possible to teach these topics in the same way as one teaches national law. This traditional way of teaching usually takes the form of telling students how ‘the law’ reads: they are informed of the law as it stands today in the particular country they study in. But while I think it is wrong to teach national law in this way, it is outright impossible when teaching European courses. In order to cover the whole field of, e.g., contract law or criminal law, there is simply not enough binding law produced by the European institutions.

Students should not just learn one system of law, but ought to be exposed to alternative ways of achieving justice. The focal point is no longer the national legislation and case laws of a particular doctrinal system. Instead, the full range of materials that informs us about how we can possibly deal with normative conflicts should be brought to the fore. These materials can come from civil law and common jurisdictions, but also from, e.g., Chinese law, ethics, conventions, religion or private documentation (such as contracts, general conditions and memorandums of understanding). When discussing these materials, the emphasis is on the arguments behind the choices made by the relevant authorities (and others) and not on the doctrinal intricacies. It also means that the starting point of the discussion is a case or a problem that is functionally defined (such as ‘When is a contract binding?’) and not some doctrinal term (like ‘consideration’). It is out of these materials that students can construct their own understanding of the problem and its possible solutions.

Accepting this ambitious teaching method means a turn away from teaching law as an authoritative system. Case law and legislation are no longer regarded as authoritative statements about what is law in a certain jurisdiction, but viewed as empirical material on how to deal with conflicting normative positions. It is used to unveil the arguments pro and against certain outcomes. Existing jurisdictions are thus seen as experimenting laboratories and it is through the comparative method that we learn about alternative outcomes to similar questions. To make this the goal of legal education may have as a consequence that graduates are less versed in the details of one particular legal system, but this is compensated by their ability to apply the legal way of thinking in various jurisdictions.

It is important to emphasise two things. The first is that this method may invoke the criticism that students no longer learn to reason in a clean and precise way. This is wrong: analytical reasoning must be a quality every law graduate must possess and I believe that a broader European legal education is much more conducive to teaching this skill than a purely national education.

The second point is admittedly a contested one. An important strand of legal scholarship claims that the ultimate goal in fields like European private law and European criminal law is to draft and implement common European principles. In particular, private lawyers have invested a lot of time and energy in such projects, leading to, inter alia, principles on European contract law, tort law, trust law, family law and private law in general. Apart from the objections one can have against representing law through principles, it cannot be denied that they are useful in teaching. Their importance should however not be overestimated. Too much focus on what jurisdictions have in common can conceal very real divergences, endangering what is at the core of the legal discipline: divergent views of what is the right answer to a legal problem. European legal education therefore should not only seek common ground, but also expose difference.

What kind of teaching method this requires was already alluded to earlier: it is one in which a functional problem is identified and solved, thus allowing students to construct their own understanding of the possible solutions.

The first question is in what sequence the various legal systems are to be discussed. Two different approaches are possible. The first is to introduce students consecutively to different jurisdictions: one starts with one legal system and gradually confronts others.

The second approach is to expose students to civil law, common law and other jurisdictions right from the start. This means legal systems are examined and contrasted simultaneously: teaching never takes place on basis of one national law, but integrates alternative approaches to functionally defined problems. Interestingly, both McGill and Maastricht changed the structure of their original curriculum to adopt this integrative approach. This change was prompted by the idea that it is much more natural to look at law in a comparative way if one is used to doing so from the very beginning (in particular for students expecting to participate in an international program). In the case of Maastricht, there was also the practical aspect that requiring students to start with one year of Dutch law (naturally taught in Dutch) was not helpful in building up an international student population.

I have no doubt that the integrative model is best suited to meet the needs of an international legal education. Students addressing a specific problem by moving back and forth from one jurisdiction to another is much more conducive to the ‘dialogue with otherness’ than the sequential model. Starting with one jurisdiction makes it likely that students regard all the rest as irrelevant.

In this approach, students are denied ‘the comfort of the familiar’, which forces them to develop a pluralistic legal mind. Within their first year, they have to realise that legal views differ and that there is not one legal system or one solution to the problem at hand.

A second important question concerns the approach to teaching: what model of teaching is the most effective in persuading students to consider a wide variety of sources to construct their own understanding (and not that of the learned author) of the legal problem? In my own experience, confirmed by distinguished colleagues elsewhere, the ideal teaching method is certainly not to focus on doctrinal questions or to teach ‘comparative law’ as such. What works best, is to select a topic and to provide materials on how this topic is dealt with in various jurisdictions.

Small group teaching, with the lecturer as an initiator of discussion and students giving presentations and writing papers, is often seen as a much better method. Working with the materials allows students to construct their own understanding of what is right or wrong, shifting the responsibility of learning away from the lecturers onto the students.

I believe this practice fits in with various ‘teaching theories’. One of these theories is problem-based learning (PBL), adopted at various law schools throughout the world including Maastricht University’s Faculty of Law. In my own experience, it is of vital importance that the lecturer is a highly qualified academic and much more than a mere ‘facilitator’ of discussions.

The Socratic method, consisting of a dialogue among lecturer and students in question and answer format, also enables ‘deep’ learning. In American law schools, this Socratic method is seen as a highly successful method to do the two things PBL also does: teach students to think like a lawyer and to practice their skills. I do not think PBL and the Socratic method differ fundamentally, except for the fact that in PBL there seems to be a preference for groups of maximum 12 students. However, the American experience shows it is very well possible to teach larger groups of students. I therefore believe that it is worth emulating the American system of splitting the (first year) class into sections that stay together for the entire year, adding considerably to the group feeling and the perception of students that they are part of a small school. At top law schools like Yale and Chicago, these sections usually consist of no more than 30 students. What Europeans may dislike about this option is that not all of the sections are taught the same way or even use the same materials. Each lecturer will teach the course and assess the students as they see fit. I do not think this is wrong: differences among the different lecturers, within the parameters set for the course, will only add to the diversity of a law school.

Student oriented teaching requires student oriented assessment. This does not rule out there is still some form of a final exam, but in my experience it is best to combine this with essays and presentations. One of the problems with grading systems that are too detailed is that the students focus too much on obtaining high grades, whereas their focus should be on the intellectual stimulus they get out of their study and the contribution they can make to the intellectual community they are part of. This (combined with the problem of grade inflation) is why several American law schools (including Harvard and Stanford) recently decided to abandon the old grading system. Students’ performance is now graded as ‘honours’, ‘pass’, ‘low pass’ or ‘fail’, one third of the class to receive the top mark (‘honours’) and the bottom 8 per cent to receive a ‘low pass’ or ‘fail’.

Although we now have more comparative casebooks and textbooks in the traditional areas of law compared to 20 years ago, we still need more. We need their authors to adopt different approaches and consider different materials. Only in that way, will we be able to create a critical mass of materials out of which students can choose what they like best. Although these materials are likely to be written in different languages, I believe they should as much as possible be written in English.

I did not say too much about what this means for the organisation of the law school as a whole, although it is clear that the ambitious program propagated here can form a true challenge for the law school that offers it. In this respect, it is important to emphasise that not every law school can or should offer a European or international program.

It is no coincidence that McGill and Maastricht not only teach international programs, but also have a strong tradition in doing internationally oriented research. The two reinforce each other considerably: students profit from the internationally acclaimed academics teaching their courses and faculty is able to try out new ideas when teaching and to attract teaching assistants from the student body.

A law school can only decide to offer European legal education if there is sufficient faculty expertise to do so, or it has the resources and prestige to attract new colleagues.

The distinction between public and private law has set the discourse in the last 200 years, but it does not make much sense anymore today. Therefore, I do not believe that the common departmental structure in continental universities, with its sharp distinction between departments of private law, public law, criminal law, European law and legal theory, is conducive to promote high quality teaching and research. It is a much better strategy to form interdisciplinary groups in which academics of different backgrounds work together, also because the more creative research is often at the intersection of disciplines.