Article by James Gordley
The traditional course in comparative law is taught after a student receives a solid grounding in the principles of his own legal system and is designed to give him some glimmering of the idea that there are other legal systems, too. It is not so clear that he learns much foreign law. In the last decade, especially in Europe, there has been a feeling that a great deal more can and should be done.
One step that has been taken successfully in many places is to enable students to study foreign law under foreign professors. This can be done in two ways. One is by enabling students to travel abroad. Many law schools in America have such programs. In Europe, one- and two-month summer programs are offered in Strasbourg, at the London School of Economics, at Cambridge University, and at the Europa College in Brügge. On a larger scale, the European Action Scheme for the Mobility of University Students (ERASMUS) program has financed study abroad for three-month periods or longer for thousands of European students since its inception in 1987. Still more ambitious are programs that allow students to study at a foreign university long enough to obtain a foreign law degree. Cambridge, Fribourg, Cornell, and Columbia have such programs, which allow students to study in Paris and receive a French law degree along with their own. Another program, which is still in the planning stages, proposes a “Hanse Law School,” where students will study in Groningen and Bremen, receiving a Dutch and a German law degree.
Conversely, one can bring professors from abroad to teach students who remain home. There have been many ventures of this kind in Europe. Nevertheless, perhaps the most ambitious program is in the United States: the Global Law School Program launched in 1995 at New York University (NYU) lists fifty-eight foreign professors, who belong to what it calls its “Global Law Faculty,” and who teach a rich variety of courses.
The organizers of these programs should be proud of the contributions they have made to legal education. Yet, just because of their excellence, these programs enable us to see an inherent limitation to what they can achieve. As Hein Kötz and Axel Flessner have said of the European study abroad programs, the offerings remain courses in foreign law. They do not systematically integrate the study of foreign and domestic law.
As impressive as it is, one can see the same difficulty with the Global Law School Program at NYU. An Italian friend of mine studied there last year. I asked him what the teaching of comparative law was like. He said there were no courses in comparative law, except for Vincenzo Varrano's course in comparative civil procedure, and he did not happen to be there that year. Actually, that is not fair. There are other courses, although only a few, including comparative property law, comparative criminal law, and comparative constitutional law. Also, much depends on what you mean by comparative law. My friend meant courses that try to compare systematically the doctrines of different legal systems in some basic field of law. The problem is not that the directors of the Global Law School Program fail to see the value of such courses. NYU's LL.M. in “comparative jurisprudence,” taught to foreign students, “largely consists of courses in basic fields of U.S. law—first-year J.D. courses and a few others—rather than a concentration in one subject area.” But presumably it is not clear how this approach would suit American J.D. students. Are they to do the basic fields of private and public law all over again from a foreign perspective in their senior year?
If so, they would be in the position of NYU LL.M. candidates from abroad studying “comparative jurisprudence” or, for that matter, of students studying in one of the twin degree programs mentioned earlier. These programs do enable students to study the fundamental principles of foreign legal systems; however, one wonders why the students should learn one legal system at a time. Roscoe Pound once said, “Study of the common law followed by study of the civil law does not constitute study of comparative law. . . . [C] omparative law will be best taught . . . in the course of teaching the law of the land.” Mathias Reimann has made the same claim.
Would it not be better, indeed, might it not be ideal, if a student's basic training in the fundamental principles of private and public law were not national, but based instead on the study of rules and doctrines that instantiate these principles wherever they happen to be found in the world? Some of the leading comparative law scholars in the world think so. Hein Kötz has called for courses that systematically lay out a field of law and lay side-by-side rules with similar functions. His vision is like that of Axel Flessner, who speaks of “legal instruction, which already treats the basic areas of law in Europe as a unified system in which national legal systems resonate like variations of larger general themes.” Helmut Coing has said that domestic law should be studied after a program of basic studies, European in scope, oriented around legal problems rather than national rules. Rodolfo Sacco has said that, ideally, domestic law should be studied after three years of courses in which law is “presented in a global and comparative manner, taught by a method that focuses on problems.” Gerard-René de Groot has called for a similar approach and spoken of the development of such courses as a “great intellectual challenge.”
A step in this direction may soon be taken at New York University. NYU plans to introduce foreign legal materials into the basic first year J.D. courses in American law, although the organizers of the program say that they have no intention of transforming them into courses in comparative law. Eventually, a more thoroughgoing effort to integrate the study of foreign law into basic courses will presumably be made at the new Bucerius Law School in Germany under the leadership of Hein Kötz. Another new venture is the Masters Program in Transnational Commercial Law and Economics, designed by Joachim Bonell, which is proposed as a joint venture between the Free University of Bolzano and the European Academy of Bolzano. The core of the program will be a series of courses in law that, according to Bonell, will be taught from a “truly international and comparative perspective,” unlike the courses in a typical LL.M. program in which law is taught “almost exclusively from the viewpoint of the law of the country in which the Programme is offered.” In any case, at present, there are two programs already in place in which such an approach has been launched: the McGill Law School in Canada and the European Law School in Maastricht.
McGill has traditionally taught both the civil law of French-speaking Quebec and the common law of the English-speaking regions of Canada. In 1998, it began a new program in which civil and common law are taught side-by-side in the same courses. In the first year, students take a six-credit course in Contractual Obligations and a five-credit course in Extra-Contractual Obligations/Torts. These courses, which deal with both civil and common law, are supplemented in the second year by specialized courses in Advanced Civil Law Obligations and Advanced Common Law Obligations. The civil and common law of property are taught separately. These courses are supplemented by others in both comparative and domestic law.
The European Law School was started by the Faculty of Law of Maastricht University in 1995. As at McGill, its centerpiece is a series of courses in which common law and civil law are taught together. The courses include property, contract, tort, criminal law, and public law. These subjects are taught with reference to the laws of England, Germany, France, and Holland, although attention is also paid to efforts to harmonize European law, such as those of the Lando Commission. In contrast to McGill, students take these courses in their second, third, and fourth years after they have spent their first year on domestic law.
Stephan Smith of McGill, Martijn Hesselink of the University of Amsterdam, and Sjef van Erp of Maastricht University were kind enough to send me the materials used to teach the law of obligations at McGill and Maastricht and, in the case of Maastricht, property law as well. The materials are a mix of statutes, code provisions, case law, and secondary literature. The topics are the ones you would expect to find in any book on obligations or property in any Western country and most non-Western ones.
One might support such programs for a variety of reasons. Politically, it may be a good thing for French-speaking and English-speaking jurists in Canada, or for all jurists in the European Community, to have common training. Legally, it may lead to a harmonization and perhaps eventual unification of different systems of law. Economically, it may make it easier and hence cheaper for lawyers of different countries to communicate with each other. The question this Article addresses, however, is whether these programs represent an improvement in legal education. I think, very definitely, that they do.
About the Author
James Gordley. Shannon Cecil Turner Professor of Law, School of Jurisprudence, University of California at Berkeley.
Citation
75 Tul. L. Rev. 1003 (2001)