Legal Education in a Post-National World
Posted: 3 Jul 2001
Legal education, particularly professional legal education, is still stuck in the mould of the nation-state and the specifics of the local jurisdiction. Contemporary law has to confront legal pluralism, rapidity of change and globalisation
Legal pluralism: The legal system has moved away from the Kelsenian hierarchy of norms within a self-contained, national legal order. The legal system is better conceptualised as a network of norms with no clearly fixed priorities (see Ost and Van de Kerchove, 2000). Norms exercise different degrees of influence, rather than being all-or-nothing standards. They come from a variety of sources, national, sub-national and supranational. The task of the lawyer is not just to find the will of a national legislator.
Rapidity of change: Law has conventionally been seen as a framework for social stability, expressing established values. Today, many problems arise which are novel, arising from rapid communication, travel and forms of working or social relationships. More established social institutions have to adapt or be re-thought. The function of law is to be part of the problem-solving process, rather than to be a set of pre-ordained rules to be applied.
Globalisation: Problems and legal practice are no longer confined nationally. Legal institutions and professions operate on a trans-national basis, with multi-national teams. Clients equally are trans-national, be they multi-nationals such as Coca-Cola, or tourists. This forces us to reconsider our concept of law (Twining 2000).
In this context, learning the law cannot be just about knowing a lot of current, national legal rules. The lawyer is not an encyclopaedia of forms and precedents or of national legal rules. (What the Germans would call a Fachidiot). The core of knowing the law is to know how to make use of legal procedures and ideas to come up with creative solutions to emerging problems. The core is (a) the ability to analyse issues; (b) an ability to listen to and understand different ways of conceptualising and evaluating a situation; (c) an ability to discuss and evaluate different value perspectives from which solutions may be taken; (d) an ability to come to decisions and justify them to different national audiences.
Legal education should radically be about issues, about research skills, and about understanding, evaluation and justification. Subject coverage is not the essential, because it is doomed to be rapidly out of date. As Markesinis (2001) and Samuel (2000) argue, it is essential to develop the habit of finding out about the way problems are approached in other legal systems, as part of developing solutions. The common law tradition is, often implicitly, well-suited to this. As we move away from finding pre-established solutions, then pure positivism must give way to debate on values. Here lawyers offer processes of decision-making, if not clear answers.
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