Vol. 14.3, December 2010


Beyond Comparative Law: American Legal Education and Europe

This issue of the Electronic Journal of Comparative Law contains the Dutch reports to the 18th Congress of the International Academy of Comparative Law (IACL), held in Washington D.C. in July 2010. Anyone present at that meeting must have been pleasantly surprised by the wonderful cooperative effort of the Georgetown University Law Center, the American University Washington College of Law and the Law School of George Washington University. To have the most important international meeting of comparative lawyers hosted by three different institutions was unprecedented.

It was also the first time since the first event in 1937 that the IACL conference was held in the United States. Europeans often lament that American law schools show little interest in comparative law. This is true to some extent, but as comparatists we should also realise that it is dangerous to transplant our own perceptions of what makes for an adequate legal education to another part of the world. What is more, I believe that Europeans (continuously under pressure to reform their university curricula) can learn at least three important lessons from the United States when it comes to teaching law.

The first is the immense variety of law schools in the United States. The distinction between ‘national’ law schools, attracting students from all over the country, and schools that only teach the law of their home State is well known. However, even national law schools entertain different conceptions of the proper way of teaching law. In Europe, on the other hand, the high degree of uniformity in how law is taught stands out. Law schools that are truly European, attracting students from across the continent in the way the top American law schools do, are nonexistent. There may well be a good explanation for this lacuna, but that does not make the situation ideal. Far from it. I believe that in Europe too teaching law should reflect a far higher level of differentiation. At present, only a handful of law schools are offering European bachelor programmes, but this development of specialisation is likely to continue – a good thing, to my mind.

The second lesson is that a law curriculum need not be riveted on the intricacies of the law as it stands. Many European law schools teach students national law as part of a curriculum that has remained largely unchanged for more than a century. Teaching at American law schools is a far better reflection of students having to learn a method, rather than as many details as possible of one of the 50 State jurisdictions. I do not deny that there are many relevant differences between legal teaching on the two sides of the Atlantic, but when it comes to the importance of learning the legal way of thinking, Europeans can benefit from the experience and insights of their American colleagues. I believe that the time is ripe for a structural change of the common European curriculum: no longer should mastery of one national legal system precede an advanced and more international programme. Instead, students should receive a general legal education first. Only upon completion of this initial phase should they be immersed in the details of the jurisdiction in which they want to practise law. Martha Nussbaum eloquently expressed this ideal of a more liberal legal education when she wrote that students should be prepared for ‘global citizenship’: they should learn how to become citizens, not only of their country or local community, but also of the increasingly interlocking and interdependent world they live in. As I see it, this implies that an academic legal education should educate students about the contingency of the law: they should be exposed to legal diversity, not only through grasping common law and civil law notions (as well as different notions within legal families), but also by extending their understanding to Nordic, Asian and Islamic law. They should learn that different societies give different weight to such issues as social justice, efficiency, equality of men and women, 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. This, I believe, is the essence of studying law.

The third point follows almost automatically from the previous one: the proposed transformation of the legal curriculum implies that law school graduates in one particular country will no longer necessarily meet all requirements to practise law in that country. This calls for the introduction of a bar exam. Such exams would benefit both law schools and legal practice. Law schools will no longer be required to restrict their teaching to national law, and they will therefore be able to specialise and excel in the type of teaching they want to offer. Some of them will offer rigorous academic programmes designed to attract Europe’s best and brightest, while others will opt to provide equally exacting specialised training programmes in one national law for those wanting to becoming practising lawyers in their home country. Legal practice also stands to gain from such differentiation: it can work together with universities in shaping the curriculum it considers the best preparation for its future associates.

On a final note and on behalf of my fellow EJCL editors, I would like to thank the authors who wrote the Dutch national reports, a printed collection of which is available from Intersentia (http://www.intersentia.com). As on previous occasions, the Netherlands Comparative Law Association is indebted to Intersentia for publishing the book containing the Dutch national reports, and for gracefully allowing the free online publication of the reports in the EJCL.

Jan Smits,
Editor to the EJCL
Professor of European Private Law and of Comparative Legal Studies

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