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Copyright © 1995 J.S. Hodgson.
First Published in Web Journal of Current Legal Issues in association with
Blackstone Press Ltd.
"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)
"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?
"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.
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:
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).
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).
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.
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.
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.
Historical perspectives:
Conceptual perspectives:
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.
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.
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).
