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Born to be Wild: The “Trans-systemic” Programme at McGill and the De-Nationalization of Legal Education

Published online by Cambridge University Press:  06 March 2019

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Legal education is changing. What is changing is our understanding of “education”, of how we learn and how we should teach. Also changing is our understanding of how to define what is “legal” about “legal education”. Most will nowadays agree that legal education should be more than a vocational training for the practice of the profession in a particular jurisdiction. In analyzing the development of legal education in recent years, we can distinguish two trajectories. Firstly, there is the ongoing attempt of specifically the North American legal academy to make legal studies a transdisciplinary endeavour, a development closely connected to the major “paradigm shifts” in legal theory in the 20th century. Secondly, it seems that jurisdictional boundaries have lost significance in an internationalized, globalized and post-regulatory environment. This calls into question the very notion of “law” itself, at least as traditionally understood as a system of posited norms within a given jurisdiction. How should both developments be reconciled?

Type
Section 3: ‘Inside-Out?’ Towards a Transnational Legal Education?
Copyright
Copyright © 2009 by German Law Journal GbR 

References

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17 See also Bénédicte Fauvarque-Cosson, The rise of comparative law: a challenge for legal education in Europe, Walter van Gerven Lectures (7) 1–25 (2007); Hondius, Ewoud, The European Private Law Movement and the changes it requires in legal education and research, in Faure et al (note 13), 39–55, calling for a “fundamental shift” in legal education (id., 55).Google Scholar

18 Which is, of course, not to say that such scholarship does not exist: see, e.g., Stephan Leibfried, Christoph Möllers, Christoph Schmid & Peer Zumbansen, Redefining the Traditional Pillars of German Legal Studies and Setting the Stage for Contemporary Interdisciplinary Research, 7 German Law Journal (GlJ) 661 (2006); see also the recent essay collection Juristenausbildung in Europa zwischen Tradition und Reform (Thomas Finkenauer, Christian Baldus &Thomas Rüfner eds., 2008).Google Scholar

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25 Another experiment in educating law students in several legal systems is the Hanse Law School Programme, see, (note 23).Google Scholar

26 See the resolution of the “European Law Faculties Association” on Strengthening the European Dimension of Legal Education, 4 Eur. J. Leg. Educ., 115 (2007), which is quite telling as to the current state of affairs:Google Scholar

“ELFA-Resolution II/06: European Law Teachers

ELFA encourages a European dimension of legal teaching that presupposes an educational experience abroad as a desirable feature of the career of a law teacher. The same should also be true for the judiciary. Law schools should be encouraged to require for newly appointed law teachers to have studied law abroad for at least one semester. Studies abroad have become possible by means of the Socrates-Erasmus Programme. To require such an experience for law teachers appears as a logical consequence.

Yes 55; No: 2; Abstentions: 3”.

27 See Twining, (note 9), 25.Google Scholar

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35 Kötz, Hein, Europäische Juristenausbildung, 1 ZEuP, 268 (1993).Google Scholar

36 Hein kötz and Konrad Zweigert, An Introduction to Comparative Law 3rd Ed., 21–24 (Tony Weir trans., 1998).Google Scholar

37 Strauss, Peter L., Transsystemia – Are We Approaching a New Langdellian Moment? Is McGill Leading the Way?, 56 J. Legal Educ. 161 (2006).Google Scholar

39 With the notable exception of Paul Maharg, who, reporting on developments in North American legal education, groups together curriculum reforms at Harvard, Stanford and McGill and calls McGill's innovation “perhaps one of the most radical”. He commends all these reformative efforts, pointing out that the “key to their innovation is a profound re-alignment of curriculum structure and methodology, from the most theoretical aspects to the most practical” (Maharg, (note 2), 98).Google Scholar

40 Kasirer, Nicholas, Bijuralism in Law's Empire and Law's Cosmos, 52 J. Legal Educ., 29, 30 (2002). On the broader intellectual project and philosophical imagination behind the curriculum change see also Richard Janda, Toward Cosmopolitan Law, 50 McGill Law Journal, (McGill L.J.) 967 (2005); Roderick A. Macdonald and Jason MacLean, No Toilets in Park, 50 McGill L.J., 721 (2005).Google Scholar

41 Glenn, H. Patrick, Doin’ the Transsystemic, 50 McGill L.J. 863 (2005). It is important to note that, despite the connection frequently made between the ambit of the programme and the process of “globalization”, “law”, which is still the object of study of the programme, is not just another, now “global” legal system or “world law” brought about by a process of “harmonization” or “convergence”. The programme attempts to understand global legal diversity as a cultural plurality by, for example, using the heuristic tool of the “tradition”, as most notably suggested by H. Patrick Glenn. Conceptualizing “law” as “tradition” allows, according to Glenn, for a “normative engagement” with otherness (as opposed to the hierarchic dominance of the positivist, “systemic” approach), while explaining, at the same time, the necessity to sustain diversity. See H. Patrick Glenn, A Concept of Legal Tradition, 34 Queen's Law Journal 427, 440–445 (2008); H. Patrick Glenn, Legal Traditions of the World 3rd Ed 358–365 (2007).Google Scholar

42 Kasirer, Nicholas, Legal Education as Métissage, 78 Tulane Law Review, (Tul. L. Rev.) 481 (2003).Google Scholar

43 In this context, it is interesting to contrast the approach of the McGill programme, which attempts to connect the experience of mixedness with a globalized “mindset”, with another innovative Canadian attempt to rise to the “global challenge”: cf. Craig Scott, A Core Curriculum for the Transnational Legal Education of JD and LLB students: Surveying the Approach of the International, Comparative and Transnational Law Program at Osgoode Hall Law School, 23 Penn St. Int'L L. Rev., 757 (2004-2005).Google Scholar

44 For a succinct but scholarly and well-documented overview of the origins and modern implications of this reality, see Part One of John E.C. Brierley and Roderick. a. Macdonald, eds., Quebec Civil Law – An Introduction to Quebec Private Law, 5–198 (1993).Google Scholar

45 See John E.C Brierley, Quebec's Civil Law Codification Viewed and Reviewed, 14 McGill L. J., 523 (1968).Google Scholar

46 See also Frost, Stanley B., The Early Days of Law Teaching at McGill, 9 Dalhousie Law Journal (Dalhousie L.J.) 150 (1984).Google Scholar

47 Morissette, Yves-Marie, McGill's Integrated Civil and Common Law Programme, 52 J. Legal Educ. 12, 15 (2002). Morissette also notes that the particular configuration of this mixity explains why certain commentators have raised questions about the density of the civil law tradition still present in Canada, citing Catherine Valcke, Legal Education in a ‘Mixed Jurisdiction': The Quebec Experience, 10 Tulane European and Civil Law Forum, (Tul. Eur. & Civ. L.F.) 61 (1995); Valcke, Catherine, Quebec Civil Law and Canadian Federalism, 21 Yale Journal of International Law, (Yale J. Int'l L.) 67 (1996); and Stein, Peter, Roman Law, Common Law and Civil Law, 61 Tul. L. Rev., 1591, 1602 (1992).Google Scholar

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49 Bédard, Julie, Transsystemic Teaching of Law at McGill: ‘Radical Changes, Old and New Hats', 27 Queen's L.J., 237, 246 (2001).Google Scholar

50 Id. Bédard comments that the situation has changed and that the Supreme Court no longer considers itself bound by its own decisions, whether they involve civil law or common law matters.Google Scholar

51 See Valcke, (note 47), 62.Google Scholar

52 Morissette (note 47), 22.Google Scholar

53 Morel, Andre, La Reaction des Canadiens devant l'administration de la justice de 1764 a 1774: une forme de resistance passive 20 La Revue du Barreau de la province de Quebec 53 (1960). As to the “uncertain status of civil law” in the years immediately preceding the Quebec Act of 1774, see, also, Brierley & Macdonald, (note 44), 14–16.Google Scholar

54 Frost, Stanley B., The Early Days of Law Teaching at McGill, 9 Dalhousie L.J., 150, 151. (1984).Google Scholar

55 Id., 153.Google Scholar

56 Cited to Edouard-Farbre Surveyer, Une école de droit a Montréal avant le Code Civil, 6 Revue Trimestrielle Canadienne, 142 (1920). It should be noted that recourse to a multitude of legal sources was not unique to the courts of Québec but was also common in the common law colonies until well into the Nineteenth Century, see, e.g., Oliver Mowat, Observations on the Use and Value of American Reports in Reference to Canadian Jurisprudence, 3 Upper Canada Law Journal, 8 (1857).Google Scholar

57 Morissette (note 47), 4.Google Scholar

59 Frederick Parker Walton, appointed Dean in 1897, was a Scottish civilian and romanist from Glasgow, while Robert Warden Lee, appointed Dean in 1915, was an English romanist from Oxford. Another influential addition to the Faculty was Herbert Arthur Smith, trained in Oxford, who had spent a number of years in the United States, and who was recruited by the Faculty in 1920 as Professor of Jurisprudence and Common Law.Google Scholar

60 For a thorough account of this period in the Faculty's history, see. Roderick A. Macdonald, The National Law Programme at McGill: Origins, Establishment, Prospects 13 Dalhousie L.J., 211, 243–260 (1990). See also John E.C. Brierley, Developments in Legal Education at McGill, 1970–1980, 7 Dalhousie L. J., 364. (1982).Google Scholar

61 As early as in 1919, Dean Robert Warden Lee made efforts to give legal education at McGill a new direction and push it beyond a training for the admission to the local bar, integrating pan-Canadian and international elements into an academic course of study. in an intellectual climate that was not quite ready to embrace such a non-insturmental view of legal education, Lee met strong resistance from the local bar. See MacDonald (note 60), 253–254. It is interesting to note the “interdisciplinary” thrust of Lee's ambitions, promoting the study of legal history and Roman law; see, e.g., Robert W. Lee, The Place of Roman Law in Legal Education, 1 Canadian Bar Review, 132 (1923).Google Scholar

62 Brierley (note 60)., 365.Google Scholar

64 Id., 369.Google Scholar

65 For a detailed discussion of the National Programme from 1968–1998 see id.; Macdonald, (note 60).Google Scholar

66 Jutras, Daniel, Two Arguments for Cross-Cultural Legal Education, in Grundlagen und Schwerpunkte des Privatrechts in europäischer Perspektive, Vol. 3, 75 (H.D. Assmann, G. Brüggemeier & R. Sethe, eds., 2001).Google Scholar

67 See Kasirer, , (note 40), 29.Google Scholar

68 Id., 3.Google Scholar

69 Morissette (note 47), 6.Google Scholar

70 See, e.g., Jukier, Rosalie, Where Law and Pedagogy Meet in the Transsystemic Contracts Classroom, 50 McGill L. J., 790. (2005); Jukier, Rosalie, Transnationalizing the Legal Curriculum: How to Teach What We Live, 56 J. Legal Educ., 172 (2006).Google Scholar

71 For a full description see Jukier (note 59).Google Scholar

72 See Kasirer (note 40).Google Scholar

73 Id., 31.Google Scholar

75 See Morissette (note 47), 21.Google Scholar

77 See Jutras (note 66), 83.Google Scholar

78 See Bédard (note 49), 279.Google Scholar

79 Blanc-Jouvan (note 22).Google Scholar

80 In McLean's ranking of Canadian law schools, McGill comes 2nd after the University of Toronto in the category “Elite Law Firm Hiring”; this survey, however, categorized McGill as a “common law school” and completely ignored its Civil Law Branch (available at: http://www.macleans.ca/education/universities/article.jsp?content=20070917_204046_1504&page=2).Google Scholar

81 Arthurs, Harry, Madly Off in One Direction: McGill's New Integrated, Polyjural, Transsystemic Law Programme, 50 McGill L.J. 707, 711 (2005).Google Scholar

82 See Strauss (note 37), 167.Google Scholar

83 See Arthurs (note 81), 715.Google Scholar

84 See, e.g., Kötz & Zweigert (note 36), 23–24; Dedek (note 32), 540, 548.Google Scholar

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