Turning the Curriculum Upside Down: Comparative Law as an Educational Tool for Constructing the Pluralistic Legal Mind

German Law Journal

Volumn 10, Issue 6-7, 2009, Pages 913-926

  Husa, Jaakko ^a,b  

^a UNIVERSITY OF EASTERN FINLAND   (Finland)

^b TICOM   (Netherlands)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 79960693107     PISSN: None     EISSN: 20718322     Source Type: Journal    
DOI: 10.1017/S2071832200001413     Document Type: Article

References (49)

1. About the concept of transnational law, see Peer Zumbansen, Transnational Law,in ELGAR ENCYCLOPAEDIA OF LAw, 738 (Jan Smits ed. 2006).
2. This is also the basic rationale behind the North American Consortium of Legal Education (NACLE). See Barbara Atwood, Graciela Jasa Silveira, Nicole LaViolette, and Tom Oldham, CrossingBordersin the Classroom:A Comparative Law Experiment in Family Law, 55 JOURNAL OF LEGAL EDUCATION 542, 542-547 (2005).
3. For example, when the Association of American Law Schools organised the Annual Meeting in January 2006 there was an allday workshop called Integrating Transnational Perspectives into First Year Curriculum.
4. So, "a quickie version of international law" is simply not enough if we are to take transnational challenge seriously, as Anita Bernstein has pointed. See Bernstein, On Nourishing the Curriculum with a Transnational Law Lagniappe, 56 JOURNAL OF LEGAL EDUCATION 578, 593 (2006).
5. If one has followed the intense debate within comparative law, one may raise one's eyebrows while reading expressions like "similar type of questions". Some might detect 'a functionalist bias' in this line of argumentation. For more details see, Jaakko Husa, Farewell to Functionalism or Methodological Tolerance?, 67 RABELS ZEITSCHRIFT FUR AUSLANDISCHES UND INTERNATIONALES PRIVATRECHT, 419 (2003). Be that as it may, here the underlying idea is that law teaching and learning should be focused on something which is: "deeply rooted or profound...that which pervades all of" legal systems as H. Patrick Glenn puts it. See H. Patrick Glenn, Doingthe Transsystemic:Legal Systems and Legal Traditions, 50 MCGILL LAW JOURNAL 863,867 (2005).
6. RD ED., 21 (1998).
7. RD ED., 21-23 (1998).
8. See especially PHILIP JACKSON, LIFE INTHE CLASSROOMS (1968).
9. In the sense of Heinrich Rickert (see HEINRICH RICKERT, THE LIMITS OF CONCEPT FORMATION IN NATURAL SCIENCES (1986)), this representation is Darstellung, containing not only a form of conceptualisation (i.e. logical construct) but it also having a certain cognitive purpose.
10. H. Patrick Glenn, Aims of Comparative Law,in ELGAR ENCYCLOPAEDIA OF COMPARATIVE LAw 57, 59 (Jan Smits ed., 2006).
11. International law (both public and private) is left out here on purpose. This is done because public and private international law is actually based on certain commitments that in many senses embrace the idea of sovereign state and its law; the international aspect is subjugated to this primary national/state law dimension. In accord, transnational legal questions do not concern only international lawyers (see supra note 1, 748).
12. JAN SMITS, THE MAKING OF EUROPEAN PRIVATE LAW, 55 (2002).
13. W.J. Kamba, Comparative Law:A Theoretical Framework, 23 INTERNATIONAL AND COMPARATIVE LAW QUARTERLY 485, 491(1974).
14. Hessel E.Yntema, Comparative Lawand Humanism, 6 AMERICAN JOURNAL OF COMPARATIVE LAW 493,499(1958).
15. Xavier Blanc-Jouvan (partly quoting Harry Arthur), BookReview:TheOxford Handbook of Comparative Law (Mathias Reimann and Reinhard Zimmerman eds.), 56 AMERICAN JOURNAL OF COMPARATIVE LAW No.4, 1076, 1084 (2008).
16. About the concept of Weltanschauung, see e.g. HANS-GEORG GADAMER, TRUTH AND METHOD 98-99 (1994). Here this philosophical concept refers to a shared comprehensive mental image of world of law in general.
17. See also Gunther Teubner, How the Law Thinks:Towarda Constructivist Epistemology of Law, 23 LAW & SOCIETY REVIEW, 727,743(1989).
18. It is not necessary to go into the details of thousands of law curricula here. However, based on my own experiences and quite extensive internet searches, the state of affairs, which is referred to above in the text, appears to be the most common. Also inquiries from colleagues have produced largely the same result. In this context I thank specifically Professors Michael Bogdan, H. Patrick Glenn, and Mathias Siems for providing their own personal findings concerning the use and role of comparative law in countries that they are familiar with. For a larger European picture see also Juristenausbildung in der Europaischen Union (http://www.europaeischejuristenausbildung.de), last accessed 17 June 2009.
19. See, e.g., Ernst Rabel, Aufgabe und Notwendigkeit der Rechtsvergleichung, in GESAMMELTE AUFSATZE BAND III, 19-21 (1967, originally published in 1924) on "Blidunqseiement", and PIERRE ARMINJON, BORIS NOLDE, MARTIN WOLFF, TRAITI~ DE DROIT COMPARE TOME 114-18 (1950) on "role educatif'.
20. Even in the best, most well intentioned attempts aim to integrate a supplementary "component in the national legal education" (supra, note 12, 56).
21. Here the text is in debt to Catherine Valcke who has offered an inspiring argument to this discussion in her seminal article Catherine Valcke, Global Law Teaching, 54 JOURNAL OF LEGAL EDUCATION 160 (2004).
22. Education refers in this text to the process of acquiring legal knowledge orskills. Learning, on the other hand, refers to those skills and knowledge whichare acquired by systemic study oflaw (i.e. following the curriculum).
23. These ideas (or rather applications of certain ideas) originate from PETER M. HAAS (ED.) INTERNATIONAL ORGANISATION, 46 (1992).
24. This is very close to Valcke's (supra, note 21, 177) idea according to which this kind of globally oriented law teaching offers a possibility to: "penetrate another system, to decipher the 'law in minds'...to get acquainted with a new way ofthinking".
25. See Second Callfor Contributions to contribute toa Symposium Issue of the German Law Journal:"Following the Call of the Wild:The Promisesand Perils of Transnationalizing Legal Education". Online at: http://www.germanlawjournal.com/article.php?id=lOlO. Last accessed, 17 June 2009.
26. See MICHAEL BOGDAN, COMPARATIVE LAw, 48-50 (1994).
27. Much of Pierre Legrand's work seems to say that comparative law/legal studies are not for everyone. See, e.g., Pierre Legrand, How to Compare Now? 16 Legal Studies 232, 239 (1996).
28. Of the high scholarly ambit in the field see, e.g., Nicholas HD Foster, The Journal of Comparative Law:A New Scholarly Resource, 1 JOURNAL OF COMPARATIVE LAW 1 (2006) for comparative law or rather comparative legal studies being a necessary science of tomorrow.
29. Traditionally comparative law has been deemed to have many purposes of which one has always been education. See, e.g., Otto Kahn-Freund, On Usesand Misuses of Comparative Law, 37 MODERN LAw REVIEW 1 (1974) for comparative law seen as a tool of research, tool of education, and tool of law reform.
30. In a similar vein it has already been suggested that as a subject comparative law should be integrated into other law courses. See, e.g., Mathias Reimann, The End of Comparative Lawasan Autonomous Subject, 11 TULANE EUROPEAN AND CIVIL LAw FORUM 49 (1996).
31. Quote taken from LEONTIN-JEAN CONSTANTINESCO, TRAITE DE DROIT COMPARE TOME II, 15 (1974).
32. This is very much what Kamba (supra, note 13, 492-493) has said about comparative law's role in legal education: "The student is compelled to question the soundness of the solutions, norms and many other aspects of his own law...prompted to investigate the inarticulate assumptions on which the institutions of his own law rest".
33. These ideas here are all based on the groundbreaking work of Jerome Bruner. For a larger picture of his work see, JEROME BRUNER, TOWARD A THEORY OF INSTRUCTION (1966), GOING BEYOND THE INFORMATION GIVEN (1973), ACTUAL MINDS, POSSIBLE WORLDS (1986), and ACTS OF MEANING (1990). Obviously, constructivism is a large framework in philosophy and science and the ideas of Bruner represent only one stream, even though from the point of view of education Bruner's ideas are most likely best known.
34. Supra note 2, 544. This would be needed in order "to encourage...to research and analyze the legal questions on its own, much as students will have to do after graduation" (id.550).
35. In practice, it may be a true challenge, see Atwood, supra, note 2, 552-557.
36. In practice, such attempts as the NACLE Cross-Border Family Law Module is one possible practical example of how to involve the deep and practical comparative/foreign law dimension into the law courses in three different jurisdictions and three different legal languages, see Atwood, supra note 2. Also the transsystemic or bijural teaching (at undergraduate level) at McGill University in Canada offers another type of practical example. See for more detailed discussion Yves-Marie Morissette, McGill's Integrated Civil and Common Law Program, 52 JOURNAL OF LEGAL EDUCATION 12 (2002). See also H. Patrick Glenn, Doingthe Transsystemic:Legal Systems and Legal Traditions, 50 MCGILL LAw JOURNAL 863, 865-866 (2005) on explaining the theoretical background of studying simultaneously, in the same classroom, civil law and common law.
37. Esin Orucu, Developing Comparative Law,in COMPARATIVE LAW: A HANDBOOK, 42, 63 (Esin Orucu and David Nelken eds., 2007).
38. John Bell, Administrative Lawina Comparative Perspective, in COMPARATIVE LAW: A HANDBOOK, 287, 310 (Esin Orucu and David Nelken eds., 2007).
39. Theoretically this seems to require accepting some kind of universalism or generalist assumption according to which there, indeed, are common legal questions in different legal systems.
40. Seesupra note 13, 518-519.
41. This concerns multiple aspects: description of given assignment, discerning and building a meaningful learning objective, gathering suitable readings for the assignment etc.
42. Of course the number of comprehensible legal languages and availability of relevant materials pose certain restrictions, although Internet has to an extent diminished some of the difficulties. For a more detailed discussion on the significance of linguistic skills see HEIKKI MATTILA, COMPARATIVE LEGAL LINGUISTICS 19-21, 33-39 (2006).
43. This refers to the undergraduate type of law program. If a law programme is a graduate programme, then this does not fully fit. However, this paper keeps in mind especially European law programmes of which most are five-year programmes consisting of both undergraduate and graduate level law study. In the American scene, however, things are somewhat different.
44. Neil S. Siegel, Some Modest Uses of Transnational Legal Perspective inFirst-Year Constitutional Law, 56 JOURNAL OF LEGAL EDUCATION 201, 215 (2006). See also M.e. Mirow, Globalizing Property: Incorporating Comparative and International Lawin to First Year Property Class, 54 JOURNAL OF LEGAL EDUCATION 183 (2004).
45. See supra note 1, 749. It seems that he certainly has a point when stating that: "While this insight is beginning to take hold in curriculum reform committees everywhere, there is still a long way to go to bridge the gap between the mostly traditional canon of First Year courses and the creme de la creme curriculum specializations that are usually restricted to Upper Year programmes" (id).
46. Supra, note 2, 549.
47. When stepping out from the bijural thinking, one might really approach near to the kind a outcome described by H. Patrick Glenn. See H. Patrick Glenn, Doingthe Transsystemic: Legal Systems and Legal Traditions, 50 MCGILL LAW JOURNAL 863,866, following: "Legal education would necessarily have to track, and even foreshadow," various non-positivist developments within legal theory/philosophy.
48. Supra, note 21, 160.
49. See supra, note 14, 499.