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The Comparative Dimension (or What do They Know of England, that only England Know?)
John Hodgson
MA LLM (Cantab.) SolicitorPrincipal Lecturer
Nottingham Law School
Copyright © 1995 J.S. Hodgson.
First Published in Web Journal of Current Legal Issues in association with
Blackstone Press Ltd.
Summary
This article examines the provisional proposals in the ACLEC Consultation Paper on the initial stage of legal education which bear on the emphasis to be given to the study of European and Comparative law. While acknowledging the intellectual benefits of such study, the article attempts to analyse the practical implications of this approach. In particular the empirical evidence as to the expertise and resources available in this field is scrutinised. The thrust of the ERASMUS/SOCRATES programmes is considered, and attempts are made to indicate an academically appropriate but practical way forward.Web JCLI | [1995] 5 Web JCLI | Download this file.
Contents
- Student Statistics
The ACLEC Approach
One of the pervading themes of the 1994 Lord Chancellor's Advisory Committee on Legal Education and Conduct (ACLEC) Consultation Paper Review of Legal Education: The Initial Stage is the importance of contextual approaches to law. This paper seeks to investigate some of the practical, educational implications of adopting, to various degrees, one of these contextual approaches, namely a "European/Comparative" one. It is not designed as a polemic either for or against a comparative approach to legal scholarship per se.The European Dimension
One of the "five major themes" informing the consultation paper as a whole is:
"The need to give full recognition to the profound influence which European law and some aspects of public international law are having on the legal system of England and Wales." (para 1.24)
'European law' in this context is not just EC/EU law. This is of course important. However, it is not the intention of this article to enter the debate about the precise scope and methodology of the coverage of EC/EU law. Rather, it is to explore the other aspects of European law which are explicitly or implicitly included. The ACLEC definition incorporates the principles of civil law and comparative study of particular municipal systems. The European Convention on Human Rights is not specifically mentioned but appears to be implicitly included. It is certainly already widely taught, at least in outline. The specific statements in this section of the consultative paper fall short of requiring the study of Comparative Law in its broader sense.
The aims of the law degree posited by ACLEC include:
"[Qualifying degrees should] be informed by comparisons from other legal systems, particularly civil law systems, and relevant international law." (para 4.6)
This is in addition to a separate aim of seeing "law within its social, economic, political, historical, ethical and cultural context," although no rigid distinction can be drawn between the two.
The general outcomes or objectives include:
"[Students should] demonstrate some understanding of differences between common law and civil law systems, including codified systems." (para 4.8)
Intellectual Rigour
This apparently modest proposal must be seen in the light of the complementary descriptive approach:
"Few law courses involve a significant element of rigorous induction in legal theory, history and process. The descriptive method could be used to correct this imbalance by encouraging such study, which could be developed throughout the degree by increasing elements of theoretical study, including formal jurisprudence and Comparative law.
EC law is an integral, increasingly influential, part of our domestic law. Study of the central concepts and methods of civil law, as a contrast to common law, is particularly important in that context.
Other important strands might need to be emphasised according to the practices and context of particular courses and institutions. First, the study of Roman law is useful in understanding all civil law based systems. Apart from the practical advantages for lawyers of some acquaintance with the legal systems of other Member States, comparative study illuminates how law can develop to meet similar problems in different situations. It uncovers the common principles of European law. The study of this new ius commune is both intellectually exacting and practically relevant. Understanding of the civil law is also needed to understand multilateral conventions covering areas as diverse as trade law and human rights. The origin and techniques of such conventions are, of course, very different from traditional statute law." (paras 4.11-13)
All this is before looking at the comparative insights to be gained from studying our common law cousins in the USA, Australia, Canada, New Zealand etc! These in themselves could form a large part of an undergraduate programme of study. The ACLEC requirements are however not necessarily additional to current curricula, although they very easily could become so. Some institutions already teach Comparative Law in various guises or adopt a comparative approach as part of the context for the study of English law. There is however a significant possibility of the creation of new workload both for students and teachers, at a time when there is already concern about the overloading of the curriculum.
The ACLEC agenda is to create a more rigorous law degree. The aim is to benefit all concerned. Such a degree will be both a better preparation for vocational training and practice than the present degree (and the CPE) and a more useful academic qualification for graduates who either do not wish to qualify or are surplus to the profession's requirements. There seems to be general sympathy for the aims, although there is alarm over the implications. In purely practical terms, do we have the library resources and teaching texts to support a sea change in the degree? Closer to home, do we have the teachers for the comparative courses? If not, have we the resources to develop them and do they have the will to be developed? A further issue, assuming these difficulties can be resolved, is that of methodology. Should students be expected to have the language capability to address continental materials in the original, should there be a defined element of the curriculum entitled 'Comparative Law' or 'Ius Commune', or is it preferable, or equally acceptable, to adopt a comparative perspective in relation to the existing elements of the course.
Ultimately of course there is a further question. Can all this be done rationally within the confines of an LLB course, or is properly regarded as more suitable to a later stage of legal education?
The Background
Comparative Law
ACLEC did not, of course, come upon this new focus on European and Comparative law by chance. There are numerous precursors. The case for a study of Comparative Law in general has been repeatedly made since the International Congress for Comparative Law in Paris in 1900 (cf Zweigert and Kötz 1987, pp 2-3). The same authors state the standard modern justification for this study.
"In legal education, as in legal science generally it is too limiting smugly to study only one's national law, and for universities and law schools so to act at a time when world society is becoming increasingly mobile is appallingly unprogressive. Comparative law offers the law student a whole new dimension; from it he can learn to respect the special legal cultures of other peoples, he will understand his own law better, he can develop the critical standards which might lead to its improvement, and he will learn how rules of law are conditioned by social facts and what different forms they can take." (Zweigert and Kötz 1987, pp 19-20.)
The value of the study of the laws of Europe in this comparative spirit (which seems to be the main thrust of the ACLEC comments) has also been recognised. Europe is recognised as a microcosm from which much may be learned (cf de Groot 1992). The intellectual case for the study of Comparative law, whether or not the field is narrowed by concentrating on Europe, is, frankly, unassailable. What remains to be considered is how that comparative element is addressed.
European law: the Ius Commune
There is however another distinct strand to the study, specifically, of European law. One of the earliest manifestations of this was the first colloquium of the European University Institute in Florence in 1977. There was subsequently a major legal education conference at Maastricht in 1991. The proceedings were published as the Maastricht Papers (see de Witte & Forder 1992). This in turn partly inspired Professor Goode's Presidential Address to the SPTL in 1992 (Goode 1993).
Some of these proposals are for greater emphasis on traditional Comparative law, or in depth study of aspects of a particular foreign system. They also tie in to issues of jurisprudence, law and economics etc. There is however also growing interest in the idea of a new Ius commune of Europe.
This is an academic concept, and is somewhat nebulous. There are at least four distinct strands of thought:
- The study of the common roots of the legal systems of Europe: reception of Roman law, natural law, the ius gentium, the Code Napoleon, the shared conceptual and intellectual heritage. Study of common law systems can be added in to this process, although this is a second level of (dis)integration, as the common law heritage is very different in many respects from the civil law one. (cf Lipstein 1992)
- Study of areas of law harmonised by EC directive, e.g. Company law, Competition law (see de Kluiver 1994).
- Study of areas influenced by general treaty law, human rights etc. (see Harris 1994).
- Study of private law areas on a comparative basis, with a view to harmonisation (see Hartlief 1994).
Many intellectually interesting questions on the why, rather than the how, of law are there to be asked in these fields, and it can hardly be denied that a student who has addressed them will be a far better "scientific" lawyer than one who has merely mastered the rules of the core subjects, especially if he has been taught (or has found it is sufficient to learn) on the false premise that the rules derived inductively by the author of the Nutshell, SWOT or Q & A, or even the authors of the "respectable" textbooks, are the law (see Cotterrell 1989, ch 1).
The Practical Reality
Student Statistics
The latest published data for law schools in the UK are those in the third Wilson survey (Wilson 1993) , and those in the Harris and Bellerby survey (Harris and Bellerby 1993). Only Wilson, which deals with the 'old' universities, gives details of courses taught. Twenty-one (of 37) law schools offered a four year course with a year's study of a foreign system or systems. (14 French, 9 German, 3 Italian, 2 Japanese one Spanish and one USA; some offered more than one option, and 10 offered "European law" as such). One hundred and forty-four students graduated from these courses in 1992 (93 French, 16 German, 1 Italian and 34 "European."). Wilson describes the numbers of such students as "increasing" but does not quantify this.
Twenty-one law schools also had a total of 302 incoming Erasmus students (76 at the four Scottish schools involved). As Erasmus schemes are supposed to be balanced this may give some indication of numbers going out from the UK, but there was probably (based on anecdotal evidence) a net inflow.
The 'new' university data is not comparable. Seventy-five per cent (as against 57% for the 'old' universities) were involved in Erasmus activities, but there are no data on numbers, or on teaching of other systems of law.
There is no data readily available on the overall language competence of law students beyond the information about lawyer linguists collected above. It is likely that virtually all UK students will have at least one modern language GCSE. Anecdotal evidence suggests a proportion will have the equivalent of 'A' level and some will be following university language courses outside the degree programme. There will however be a number with neither the knowledge nor the inclination to operate in anything other than English (and we must not forget the significant number of non-European foreign students for whom English is not the mother tongue).
Subject Availability
EC law is taught virtually everywhere. Twenty-eight (of 34) non Scottish 'old' universities teach it as a discrete subject. It is compulsory in seven. It is not the most common optional subject (being exceeded by Family, Labour, Company and Public International Law). There is 96% coverage of the institutions of the EC and some substantive law in the 'new' universities. The differing strategies of law schools, some of which incorporate teaching of EC institutions into Legal System, and some of which integrate EC law elements into commercial or competition courses, make it difficult to say how far students are actually exposed to EC law, and whether this is in a way that will enable them to address the common/civil law divide.
Human Rights and Comparative law are each offered in 14 of the 'old' universities. There are no figures for the 'new' universities. It does not of course follow that the absence of a named course denotes absence of coverage of issues, but this cannot be conveniently ascertained.
In the 'old' universities there were 12,000 law students and 1600 'mixed degree' students. It is not clear whether the 500 or so students studying law and foreign law were counted in these totals (although it is likely that they were). In the 'new' universities there were 6,800 full time law students and 2525 full time mixed degree students. There were also 2600 part time LLB students and 120 students pursuing a mixed degree part time.
Students on mixed degrees are less likely to study non core law. This is clearly in both absolute and relative terms a greater problem in the 'new' universities. This problem is likely to become greater with the growth of modular and "minimum law' degrees. It is also a consideration in relation to the graduate conversion course, even in the recently approved modernised version. There is scope for the study of comparative issues, but only to a limited extent.
Some further developments
The picture given by the research findings is a snap-shot, and somewhat out of date. In my own University we have, since 1992:
- Introduced a four year Law/Languages LLB with emphasis on the law of the country where the year out will be spent, and a requirement of 'A' level in the language studied.
- Disaggregated a single Comparative law course into modules covering French, German, Japanese and US law.
- Strengthened Erasmus links outside the Law/Languages programme.
- Brought participation in the Jessop and Telders Moots into the academic programme.
- Expanded the number of discrete EC law modules to four, two of which are compulsory.
- Introduced specific coverage of Human Rights as part of an expanded group of Public International Law modules.
- Increased the coverage of EC law and the ECHR in the PGD (CPE) course.
- It should however be noted that, although there is a greater range of modules on the LLB, these are all relatively small, as we work on a 10 credit module system. The Jessop and Telders moots count as double modules.
Staff Interests
The Association of Law Teachers, which draws a significant proportion of its membership from the 'new' universities, has only about 13 members (of whom about 10 are based in HE in the UK) whose stated interests (a maximum of five, drawn from an extensive, but prescriptive, list) include Comparative Law, together with some 80 listing EC Law. None of the other interest categories provided are particularly relevant. The position in the 'old' universities is much better. A substantial percentage of members of the Society of Public Teachers of Law, drawn predominantly from the 'old' universities declare interests in EC Law and/or Comparative Law as such or cognate fields. A detailed count is difficult because of the free-form listing system adopted. It is of course not clear whether these are principally research or teaching interests.
There is here a worrying disparity. While it is wrong to suggest that the 'new' universities do not teach European or Comparative law, and that the teachers in them are uninterested, and while there are no quantitative data available to me, it seems plain that many of the 'old' universities are far stronger in these fields. They have a numerous body of academics with interests in the area, established courses, post graduate provision and the appropriate library resources. They are not dealing with the same number of mixed degree students and they have students who are, at least on paper, academically brighter.
There is a lurking doubt that some of the conservative elitists in the 'old' universities see the 'ACLEC' model for the degree as not only giving the law degree new status in the wider world, but also as a way of freezing out the lesser breeds who cannot provide the same breadth of intellectual rigour. It is also a valuable weapon in the war against the 'dilutees' from the graduate conversion course.
Resource Materials
There are some relevant materials available. Zweigert & Kötz (1987) is a widely respected textbook on Comparative law for undergraduates, although it is becoming a little dated. There are now a number of student texts and cases and materials books on aspects of French and German law in particular (although some of the latter read like translations even when they aren't, in stark contrast to Zweigert & Kötz, where the converse is true!). Kurt Lipstein provided a specimen reading list for a course on the common legal foundations of Europe in his paper to the Maastricht conference (Lipstein 1992). Basil Markesinis and Walter von Gerven are, I believe, engaged in a project to produce 'European' cases and materials. Dutch and Belgian Law Schools are developing courses based on European legal fundamentals.Practical Problems
However the fact remains that there are three serious practical objections to a significant expansion of the coverage of Comparative law, or the ius commune, or even expanding the comparative perspective within discrete substantive subjects. The first is that there is a serious shortage, at least in some places, of suitable faculty to deliver such courses, and of library resources to support these courses. The second is the apparent general inability of UK law students to access original materials in other languages; such students will of necessity undergo a learning experience where the intellectual pabulum has been more or less pre- digested by the 'Cases and Materials' authors. The third is the general problem of overload. If we accept the intellectual case for a comparative perspective together with all the other potential intellectually invigorating elements, we are in sight of Professor Twining's nine year law degree, and certainly the seven or eight year German version. It may well be right that this sort of level of education is necessary for the leaders of the law, professional or academic, but it does not follow that it should all be delivered at the undergraduate stage, which is after all the primary school of legal education (again Professor Twining's concept). It may be necessary to accept that serious comparative or European study should be pursued at Master's level.What Can Be Achieved?
This section proceeds, as it were, independently of the foregoing. While it may not be possible to give full weight to the demands of Comparative and European law at first degree level, there are, nonetheless activities in and related to Europe which can and should be pursued.
Student Mobility
An international perspective is a good thing per se. This is recognised in the objectives of the SOCRATES programme of the EC (cf New Community Action Programmes for Education and Training COM (93) 708 Final, European Commission 3.2.94.):
- giving education a European dimension so as to enhance a spirit of European citizenship;
- promoting improved knowledge of the EU's languages to enable citizens to take advantage of the opportunities arising from the completion of the European Union;
- encouraging mobility of students, especially in higher education, so that they can complete part of their studies in Member States other than their own;
- promoting co-operation between institutions at all levels in the Member States;
These will operate both on the basis of existing institutional partnerships but also larger networks "for specific themes, disciplines or fields of higher studies." There are even rumours that research may be within the pale.
International exchanges are clearly a good thing regardless of the discipline concerned. Law students will benefit as part of their higher education just as engineers or business studies students will. Although of course they are not exempt from general problems such as inappropriate accommodation, programmes of study and integration into the host student body which have occurred in various cases.
Bringing in intellectual elements where feasible
The intellectual advantages of more comparative study within reasonable parameters are clear enough.
Historical perspectives:
- Even the Common Law did not arise in a vacuum. The Law Merchant influenced the common law of contract. Many early Chancery lawyers were civilians, and the civil law applied to matrimonial matters, probate and admiralty. Lord Mansfield and many of the more scientific Victorian judges expressly drew inspiration from learned civilians.
- The Law of Nations derives largely from civilian and natural law principles. This underpins modern treaty based international law.
- The reception of Roman law, followed by codification and the rise of deductive jurisprudence are essential pre requisites to an understanding of the procedures of the CJEC.
Conceptual perspectives:
- As is so often said, modern legal systems are faced with the same problems, and usually reach substantially the same answer, albeit by different routes (cf product liability in the USA and the EU).
- Many topics are proposed for comparative treatment. In each case the broader view reinforces critical understanding of the domestic system and its rules.
- Some areas, such as human rights, are essentially transnational in any event.
- A comparative approach enhances the general intellectual weight of the course.
- Comparative study is a perfect focus for post graduate study, and should be introduced at undergraduate level.
It may be argued that this depth and breadth of intellectual knowledge is necessary only for an elite of future academics and high calibre practitioners and public functionaries. There is therefore, as noted above, a danger of the 'German problem' where all legal education is predicated on the needs of an elite minority (in their case, the judiciary), leading to a waste of energy and resources in the case of the majority, who are essentially businessmen with a legal bias or legal technicians. This may be correct from a professional perspective, but it does not answer the argument that such an education is inherently better and, provided it is not too bedded in esoteric lawyer's law, also broadly transferable to many careers and social situations. All politicians and senior civil servants, for instance, would benefit from this sort of intellectual background.
Professional Justification
There are in addition sound professional reasons for increasing attention to these areas. Professional practice is increasingly internationalised.
- EC law arises increasingly within ordinary municipal practice. The problem is to ensure a sound grounding for all and the necessary referral expertise when a significant issue arises.
- Much legal practice arises from international trade and finance, and a grasp of the different legal principles at work is essential for this work.
- Private international law, in relation to families and succession, as well as trade, is of increasing significance.
It is not being suggested that academic study, even at post graduate, rather than undergraduate, level, is sufficient for these purposes. It is however a vital pre- requisite.
Postscript
This article is based on a paper delivered at the ALT Annual Conference in Ambleside in April 1995. In the course of discussion several Scots-based colleagues, including Jenny Hamilton of the University of Stirling, pointed out that we do have an excellent, and almost invariably ignored, basis for comparison north of the border. Scots Law is substantially based on civil law (although with admixtures of common and statute law). It can be studied with no foreign language requirements, and even study visits involve no formalities and minimal cultural upheaval. This latter aspect is not a positive recommendation, but it may enable some students to engage at first hand with a 'foreign' system who would not otherwise have done so. It was even tentatively suggested that Scottish institutions could offer summer schools carrying academic credit for their Sassenach neighbours.
Bibliography
Cotterrell, R (1989) The Politics of Jurisprudence (London: Butterworths).
Goode, R (1993) 'The European law school' 13 Legal Studies 1.
de Groot, G-R (1992) 'European Legal Education in the 21st Century' in de Witte, B & Forder, C (eds) The Common Law of Europe and the Future of Legal Education (Kluwer)
Harris, P and Bellerby, S (1993) Survey of Law Teaching (Sheffield: Association of Law Teachers).
Harris, D (1994) 'The Right to Life under the European Convention on Human Rights' 1 Maastricht Journal of European Law 122.
Hartlief, T (1994) 'Towards a European Private Law?' 1 Maastricht Journal of European Law 166.
de Kluiver, H-J (1994) 'European and American Comparative Law: A Comparison after 25 years of EC Harmonisation' 1 Maastricht Journal of European Law 139.
Lipstein, K (1992) 'European Legal Education in the Future. Teaching the "Common Law of Europe"' in de Witte, B & Forder, C (eds) The Common Law of Europe and the Future of Legal Education (Kluwer).
Wilson, J (1993) 'The Third Law School Survey' 13 Legal Studies 143.
de Witte, B & Forder, C (eds) (1992)The Common Law of Europe and the Future of Legal Education (Kluwer)
Zweigert, K and Kötz, H (1987) An Introduction to Comparative Law (Oxford: Oxford University Press).