(Law School in Buenos Aires. Thanks to FIERnando)
Law is parochial yet it plays a considerable role in globalization. With few exceptions legal education has continued listing towards the local away from the global. Harry Arthurs, along with Carole Silver and Margaret Thornton, is one of the few scholars to investigate globalization and legal education. Arthurs has spent many years thinking about legal education as befits one who has been both Dean of Osgoode Hall Law School and President of York University in Canada and written one of the major reports on legal education. (See Julian Webb’s reflections on the 1983 “Arthurs’ Report”.)
The starting point is that political economy has profound influences on the shaping of legal education via the research agendas of legal academics, types of jobs available for graduates, regulatory structures created by government, licensing of law schools, etc. As economies and legal markets adapt to globalization so does the knowledge it is perceived to need. Law schools like to promote themselves as global either in their names—Jindal Global Law School—or in their courses and faculty.
According to Arthurs there is a deeper level to this: globalization of the mind, which has become an ideology. It infuses our thinking where the transnational trumps the national, markets trump politics and law’s role is to make the world safe for markets. This is the “new normal” and it has consequences. The rule of law is seen to protect economic interests from the state; states will be seen to be of less influence than transnational institutions; local resentments consolidate in supranational bodies like the EU or devolution as in Spain or Canada; and the law is decoupled from the state and the state is decentered. Arthurs foresees a new curriculum which contains not judicial decisions but arbitration awards, not legislation but corporate codes of conduct.
Does legal education have to be this pessimistic? Not according to Arthurs. His example of a successful future legal education is found at McGill Law School in Montreal. McGill has developed a “polyjural or transsystemic” curriculum. The result is that
“individual courses and the curriculum as a whole consciously integrate civil and common law perspectives, domestic and international perspectives, the perspectives of state law and of non-state legal systems, and legal perspectives with those of other disciplines” (at 636).A former McGill dean said “McGill has always been habited by the conviction that a great deal can be gained...from a sustained and humble dialogue with otherness.” And Jukier, a McGill law professor, notes that the idea of otherness is not to be the same but, through the freeing of law from jurisdiction or systemic boundaries, perspectives multiply and understanding is increased. She contrasts this approach with Justice Scalia’s disdain for foreign cases as meaningless dicta (Lawrence v. Texas, 539 U.S. 558 (2003)). Thus, for McGill, law is unbounded, legal systems interpenetrate or meet resistance, common law is mixed with civil and religious, domestic and international law struggle with each other, and law is found in transactions, discourse, and the quotidian routines of life.
Arthurs argues that such a curriculum is refreshing for legal scholars but how do students fare on such a diet? Since McGill favors unpredictability, students might balk, so let them have what they want. Arthurs says this isn’t so far from what law teachers already do as Scalia indicates. He prefers the approach of niche marketing, however, whereby the law school should try to attract those students who will feel most comfortable in the transsystemic environment. But it presupposes adequate knowledge on the part of the students to make an informed choice. Arthurs favored way is “to engage students in serious conversations which will free them from the tyranny of rules.” It has three principles. One is that students’ own experiences have validity in legal studies. Two is that faculty have to show they value questions more than answers. Three is for students to use their new knowledge to interrogate themselves. And four is to help students understand that their lives will be riven by ambiguity, indeterminacy, and irony.
This is a brave approach for a law school to take. And it challenges the faculty’s preconceptions as much as those of the students. Harry Arthurs is raising the stakes for law schools in that many wish to embrace globalization in some way but don’t necessarily know which is the best approach. Constrained by professional regulation, they might ignore it or introduce one or two courses, or they might reconstitute the entire curriculum as a challenge to conventional wisdom. Perhaps the last great revolution in legal education occurred in 1870 when Christopher Columbus Langdell became dean of Harvard Law School in which case the next one is overdue.
[Harry W. Arthurs, Law and Learning in an Era of Globalization, 10 German Law Journal 629 (2009); CLPE Research Paper 22/2009. (German Law Journal version; SSRN version)]