Aalt Willem Heringa and Bram Akkermans, eds, Educating European Lawyers, Intersentia, 2011

Being a visiting scholar at the MEPLI and exposed to the rich and challenging intellectual life at the University of Maastricht, it seems difficult to deny that the Europeanization of legal education is indeed taking place and in full blossom. Yet, it must not be overlooked that the University of Maastricht has been pioneering a type of legal education that takes due account of the growing interdependence and interactions between formerly distinct spheres and subjects. The reasons why the Maastricht European Law School model still constitutes an exception are manifold and include a lack of competence of the European Union to adopt hard law in the field of education, the deeply rooted embeddedness of the legal discipline understood in a broad sense in national mindsets which also holds true for the labor market in law as well as language barriers, just to name a few of the obstacles that prevent a timely adaptation of legal education to the transnational legal reality.

Against this backdrop, “Educating European Lawyers”, edited by Aalt Willem Heringa and Bram Akkermans, two faculty members of the Faculty of Law of the University of Maastricht, provides invaluable insights into the experience of almost two decades of Europeanization and Internationalization of legal education. Given that many other universities feel the aspiration or pressure to Europeanize and internationalize their schools, their staff, their curricula and their academic output, the book offers a rich fund of information on the progress, the obstacles and the downsides that the faculty of law in Maastricht has been facing during the past 20 years. It may become mandatory reading for all those interested in advancing the discussion on European legal education and in particular for other law faculties that wish to follow this path in one way or another. 

To begin with some facts:  In 1995, the European Law School program was set up (a four year program in total, of which two years of Dutch law and two years of English taught courses) benefiting from the knowledge and experiences gained with a commercial post-graduate LL.M. program entitled “Master of European and Comparative Law”/ “Magister Iuris Communis” created in 1992. Since 2006, the University of Maastricht has offered a three year bachelor program fully taught in English (LL.B. European Law School English Track; alternatively: third year of LL.B. taught in Dutch on Dutch law for those who want to join the bar) and a corresponding Master program. As the editors describe in the introduction: “Four years of law studies in English, not so much (and sometimes not at all) focused on domestic legal systems, but about European law, comparative law and the common law of Europe (Ius Commune), with evidently also a substantial dose of international law and globalization trends.”

Several faculty members devote their articles from a general viewpoint and a specific, subject-matter related perspective to the design of the program, the curriculum and its evolution, the language of instruction, the availability of teaching materials, the relationship with legal professions, didactical aspects, the link between teaching and research and a legal method from a more general perspective.

In his article entitled “Towards a truly European legal education. An agenda for the future”, Aalt Willem Heringa describes the state of affairs of legal education in Europe after and with the Bologna declaration that, in his view, lags behind related legal and political developments at the EU level.  In light of the absence of a legislative competence of the EU to harmonize legal education, he singles out aspects such as the availability of European sources of funding for research and student exchanges, a common credit system or the general rules on the free movement of persons that have helped to overcome the boundaries of a domestic legal culture in the EU at least to some extent (4-5, 7-9). He does not omit to mention obstacles and a lack of flexibility on the part of domestic bar associations or governments (6). With regard to the design of the English language curriculum that places emphasis on an abstract theoretical analysis and a comparative approach to general legal questions such as the making of a contract or the separation of powers in particular, similar obstacles are identified by Heringa that are all considered to be rooted in an unwillingness of the academic discipline and lawyers to allow for changes (9-10). His contribution clearly demonstrates the pioneering character of the Maastricht European Law School, and particularly the need to link issues such as funding, university entrance requirements, teaching language, research output and the absorption of the graduates by the labor market. It illustrates the naked facts through a number of insightful examples of European universities. Ultimately, Heringa takes a realistic view by recognizing the need to follow a two-tier approach, one for truly European lawyers and the other for those who prefer traditional domestic paths.

Highlighting the close yet controversial relationship between research and teaching, Bruno de Witte raises the question to what extent European Union Law as an academic discipline has a common core or is rather a fragmented discipline. To begin with, he points to the lack of interest of EU lawyers in self-reflection and the soul of their discipline (19). Against this backdrop, de Witte describes a shift from a more unified academic discipline in the inception of European Integration towards a growing fragmentation of a legal culture in European law at large with respect to its geographical and disciplinary boundaries (20-37) that is reflected at the level of publishing outlets, publication language, style and output and legal education (the statistical data he provides are immensely valuable and illuminating).  In addition to the traditional yet little debated cleavages between practitioner-oriented writings, doctrinal writings and US-style theoretical, contextual and interdisciplinary research, the ever increasing expansion of EU law into very specific and technical fields of law has produced a fragmented academic landscape. Due to the variety of backgrounds and affiliations and the widespread use of the English language, de Witte regards the co-existence of various schools as rather peaceful instead of confrontational (33), yet failing to produce debates on the methodology of the discipline.

Whereas Bruno de Witte very thoughtfully approaches the problem of fragmentation among EU law scholars on the basis of statistical data, Jan Smits has chosen the openly visionary path. In his article “European legal education, or: How to prepare students for global citizenship?” he candidly calls for a dialogue with the otherness (44, 52). Referring to the completely trans-systemic or transnational programs at the universities of McGill (Montreal) and Maastricht, he explains why law should be taught in a more international way, what to teach in that respect and how to do that.  Smits argues that the need for internationalization has manifested itself, for instance, in the plurality of legal sources in private law that are no longer rooted exclusively in nation state authority (45-46). He does not only discuss different degrees of internationalization (international education on top of a sound basis in domestic law versus exposition of students to a plurality of legal sources and comparative approaches from the outset, 52 et seq.; Jan Smits clearly prefers the second one) and their ability to attract the most motivated students by academic rigor and emphasis on arguments behind the choices, but also the need to overcome the instrumentality of the law by considering the law as a means to immerge oneself into a deeper cross-cultural learning (47-50).  With respect to a genuinely European curriculum,  Smits goes as far as to advocate a turn away from teaching law as an authoritative system, without at the same time rejecting doctrinal approaches to law and legal education, but merely “downgrading” them to one way of legal reasoning alongside others (51). Against this backdrop, he sets out how Maastricht has become known for its problem-based functional approaches and the study of common principles that are applied in small groups. They may be complemented by the Socratic Method that has become the standard teaching approach at many US American Law Schools (54-55) and that places more emphasis on intellectual stimulus and freedom than the mere achievement of high grades.  In conclusion, Smits stresses the need for research and teaching to go hand in hand on their path towards internationalization, given that both have to overcome obstacles with respect to the organization of law schools and curricula including the public-private distinction and in relation to faculty recruitment (57).

In his article “Comparative law and legal science” Jaap Hage raises the question of what makes comparative law so important in the context of teaching programs. He highlights the usefulness of comparative law for legal practice for overcoming the “threshold of the unfamiliar” and for broadening one’s view of the law (65-66). Moreover, he points to its function as a scientific method that guides the collection of the relevant data and their evaluation on the one hand and as a heuristic tool for generating hypotheses about the most viable solution on the other (67 et seq.).  Against this background, Hage delves into a more detailed analysis with regard to the kind of research questions that are asked in legal science. He lists three of them, including the explanation of the law’s contents, the evaluation of the law and its description (70 et seq.). Comparative law may explain the law’s contents in the context of legal transplants for instance (71) and, understood in a broad sense, it may also provide information that is relevant for the evaluation of the law (72). Depending on one’s vision of the world with regard to a ius commune or ius naturale, comparative law may at times also underlie the description of the law (73).

Sjef Van Erp’s article in the present volume is devoted to the evolution of “Teaching law in Europe: From an intra-systemic, via a trans-systemic to a supra-systemic approach” and the link between legal education and legal thinking. Going less far than Smits in this volume or de Dedek/ de Mestral in their article on the trans-systemic McGill program (Dedek/de Mestral, Born to be wild: The trans-systemic program at McGill and the de-nationalization of legal education, 9 German Law Journal (2008), 889-912), van Erp argues in favor of maintaining the intra-systemic legal thinking (80), but complementing it by theoretical trans-systemic and supra-systemic thinking based on the functional method, not least in order to maintain the relevance of legal education for the bar and the bench (89). Furthermore, van Erp explains the changes that the classical post WWII comparative law scholarship has undergone towards a context driven approach and discusses its controversial relationship with private international law (86).

A further contribution to the volume includes Nicole Kornet’s “Building a European-oriented law curriculum”. She provides valuable insights into the need for legal education to respond to the transformation of the law and legal practice and the challenges for its realization. The latter relate to the choice of the relevant legal systems, a sound comparative law methodology, and the selection of relevant subject matters including those that foster a deeper understanding of the law such as legal theory and legal philosophy (106 et seq.) which she illustrates by references to the Maastricht curriculum.

Sjoerd Claessens and Hildegard Schneider dedicate their article to “Legal education and the free movement of lawyers in the European Union”. They offer a well-researched overview of the legal framework governing the free movement of fully-trained professional lawyers in EU law including the recognition of their diplomas and qualifications as well as the framework for aspiring lawyers whose mobility is mainly governed by the general rules on free movement in the absence of more specific rules on education and has often proved a controversial and dissatisfactory matter. With regard to a way forward, the authors argue that the key for a solution lies in the content of the academic programs in the different Member States, viewed in light of the responsibility and ability of students to  make choices at an early age that have potentially far-reaching consequences for their professional life (145). Presenting both alternatives that the University of Maastricht offers, namely the fully internationalized LL.B. and the LL.B. that includes one year of Dutch law taught in Dutch language, the authors opine that in the absence of fully fledged legislative powers of the EU in the area of education, a lot of responsibility but also opportunities to shape a truly European education lie with the universities themselves (151). This is a statement that the University of Maastricht has taken very seriously so far.

Next to these very insightful pieces of a more general focus that shed light upon the complexities of legal education in Europe, the volume edited by Heringa and Akkermans also includes a second part that deals with specific topics and subject matters.

In this context, Bram Akkermans describes the challenges of a curriculum in European Private Law in the light of a modernized discipline of comparative law (160 et seq.). He views as the key for progress the cooperation between researchers and research projects (161) such as the projects aimed at identifying principles of contract or private law, the draft common frame of reference or the institutionalized cooperation resulting from the creation of a European Law Institute. Akkermans highlights that national private law is highly influenced by EU law (162-166) and increasingly made object of interdisciplinary research including perspectives from economics and social sciences (168). Translating this evolution into teaching including the need for developing appropriate teaching materials, the author points to the necessity to combine a comparative approach to private law topics such as contracts or property law with teaching of a sound basis of EU law and in particular the fragmented EU private law. This requires a different view on private law compared to the one offered by the national lens (168-172) and may ultimately lead to the teaching of courses and degrees exclusively devoted to European private law (173).

Further contributions that look at specific subject matters include Mieke Olaert’s piece on “Teaching European and comparative company law” (179) that advocates a comparative approach to the teaching of company law or the article by Remme Verkerk and Remco van Rhee on a style of “Teaching comparative civil procedure” that is characterized by a more reflective, contextual approach (195 et seq.). The particularities of “Teaching European and comparative constitutional law” are dealt with by Philipp Kiiver and Mariolina Eliantonio (209 et seq.) who point to the Europeanisation of national constitutional law, its practical significance in times of political transition (210) and the choice between a country-by-country and a thematic approach (212) and the related choice of teaching materials (213, 214). André Klip devoted his article to “Teaching in criminal law in English” (219 et seq.) and addresses opportunities and challenges of using English as a lingua franca for teaching in this area.  Moreover, Ellen Vos dealt with “EU law after Lisbon: Some challenges ahead” (231 et seq.) and addressed the question of the finality of European Integration, related constitutional problems (232 et seq.) and novel aspects of the contemporary legal and political framework that constitute at the same time challenges for teaching (239). Remco van Rhee and Tanja van der Meer address the crucial yet still underestimated area of “Teaching European Legal History” (247 et seq.) that helps to embed the law in its context and has therefore been included in the Maastricht LL.B and in the Master’s program. It covers subject matters such as Roman Law in the Antiquity, the Ius Commune Period and the Codification period.

This blend of contributions proves highly insightful and reflects a general trend in legal education, “work in progress” as the editors dub it (263). As the editors tellingly remark in the conclusion, the main challenges to be overcome relate to the absorption of the truly European Lawyers by the national labor markets (261) and to complementing the Europeanization of legal education with the needs of a globalised law (262). It is needless to say that Maastricht’s geographical situation attracts, e.g., students from Britain who try to escape the increased tuition fees or from Germany and France that long for a more participatory teaching style and learning environment. Moreover, Maastricht benefits from the proximity to the Brussels institutions. In other words, the context matters and as always transplants are to be considered with great care. Yet, the pressure on the national legal orders to deal with “the foreign” and transnational situations may differ in degree but not in kind. Moreover, the resistance to the English language as the lingua franca for teaching may vary and depend on the size of the respective country and the age and education of the faculty, but ultimately, the alternatives are limited. It may be hoped that the Maastricht model will be studied carefully and in one way or another inspire other institutions.

Constanze Semmelmann, lecturer EU law (University of St.Gallen, CH), visiting scholar, Institute for European Private Law (M-EPLI). She wishes to thank William Bull for the language revision of this review.

 

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