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PRINCIPLES OF HARMONIZATION OF LEGAL EDUCATION IN THE EUROPEAN UNION
Z. Nagy
D. Perkumiene
Introduction. Globalization, economic globalization and legal globalization. These words are well-known for us and perhaps for the law society everywhere in the world. Undoubtedly “global law” is becoming an influential and organizing principle for law teaching, research, jurisprudence and legal theories both in the USA and in the European Union1. Recently, in the European Union much attention has been given to the harmonization and unification of law. We can see that since the Second World War considerable efforts have been made to promote the harmonization of private law and primarily the commercial contract law. Although there are debates on the unification of law in the European Union, debates on the teaching of law are almost entirely missing. In recent years it has been increasingly necessary to familiarize students both with the rules and the deep structure of more than one legal system. Law students in the European Union are likely to work in an environment where they will have to deal with many legal systems in the context of a single case. Business relationships for example are increasingly transnational and the economic relationships within Europe, and in the world, are constantly crossing jurisdictional lines. In the past law society referred to one legal system, while nowadays lawyers in the European Union have to work with more than one legal culture. However the majority of law students still familiarize themselves with only one legal system. As Xavier Blanc-Jouvan noted the main feature of legal instruction in all countries, including the common law world, is based only on the national law2. The situation is changing today. As students already feel that they are part of a global world, they want to know something about other legal traditions, including the English or American legal system. Purpose: to analyze possibilities of harmonization of legal education in the European Union.
Results. We know that in the recent years some efforts have been to address this problem. In Europe there are some programs for students to learn another legal system. In almost every law school there are courses in comparative law, which consist of a general introduction to the major legal systems existing in the world. The law schools invite foreign scholars to teach or co-teach some courses in order to introduce students to another legal world. These courses are excellent, but considering legal relationships it is likely that today these academic courses are not enough. Furthermore, the students are expected to spend an appreciable period of time studying another legal tradition abroad. The Erasmus program is such an inter-university program. I think that in the European Union the most ambitious attempt to address the problem of trans-systemic law teaching is
1 See: Zsolt Nagy: Metszetek a jogasztarsadalomrol. (Details about the Legal Society) A Polay Elemer Konyvtara. Szeged. 2012. 150-152 p.
2 Xavier Blanc-Jouvan: Bijuralism in Legal Education: A French View. 52. Journal of Legal Education. 61.2002.
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the Hanse Law School where students are expected to learn the law system of the Netherlands and Germany. Similarly to this, the Faculty of Law of the University of Maastricht introduced the so-called European Law Studies Program where students enter a course focused on the general and common principles used by the member states of the European Union1. These approaches of law teaching are focused on the mastery of more than one culture but they remain limited in scope or in vision. To better understand the way of trans-systemic law teaching I think we have to analyze the legal education at the Faculty of Law of McGill University in Quebec, Canada. The result of this brief analysis can have an important message for all legal tutors in Europe2.
The McGill University Faculty of Law has always had a strong tradition of teaching comparative law but now the McGill teaching program is a real bisystemic, transsystemic, bijural curriculum combining the civil law and the common law. It is well-known, that Canada is a federal country where since the seventieth century two legal systems of private law have coexisted in the provinces. In this way the Quebec jurisdiction has a plural character of law using the method of comparison.
Because of the above-mentioned bijuralism, legal education in Canada has a special importance. As Catherine Valcke, a law professor at the University of Toronto said that “legal players must be capable of playing two games at once”. As a consequence of the particular origins of Canadian law, it was an Englishspeaking law school, the only one in the early 20th century in Quebec, under the deanship of Frederick Parker Walton and Robert Warden Lee, which first introduced a bijural curriculum. In fact common law courses were offered alongside the traditional civil law program. By the end of the sixties a new so-called National Program was introduced which philosophy was a “mutual understanding between different regions in Canada”. This Program made it possible for the students to complete a civil or common law degree or to complete both degrees in four years. The Program provided students with a training that allowed them to qualify as lawyers both in civil and common law jurisdictions. In this way, the McGill University began to produce jurists who could work both in transnational and international environments, and of course increase professional mobility. It is worth mentioning that common and civil law degree graduates at McGill are qualified for practice in a number of states in the USA. Despite further effort to develop a comparative teaching method, the bijural curriculum was mainly a cohabitation of two largely autonomous orders of private law. As Nicholas Kasirer, a dean at the Faculty of Law at McGill University, noted: the McGill Program “meant a peaceful cohabitation rather than active dialogue between the common law and the civil law”. It have to be mentioned that in the same undergraduate curriculum, this mixed legal education exists at the universities of Montreal, Ottawa, and Sherbrooke.
In 1999, as a response to external and internal pressures, such as the desire to make the Faculty more attractive to the students, a major reform came. Before
1 de Mestral, Armand: Guest Editorial: Bisystemic Law-Teaching - The McGill Programme and the Concept of Law in the EU. 40. Common Market Law Review. 799-807. 2003. Netherlands. and European Law Faculties Association. (ELFA) The University of Birmingham. www.elfa.bham.ac.uk.
2 Zsolt Nagy: Metszetek a jogasztarsadalomrol. (Details about the Legal Society) A Polay Elemer Konyvtara. Szeged. 2012. 1 б0—163 p.
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1999 the two streams were sequential rather than integrated as they are in the new program where students can admit to a single integrated program and complete it within three years. In this new transsystemic teaching, the fundamental concepts of the common and civil law are taught within a single course where law is learned in function of overarching categories of law. The courses include: Extra-contractual obligations/Torts, Contractual obligations/Contracts, Comparative Federalism, Private International Law and so on. The only course that is not taught in a transsystemic way is the Civil Law Property because of its cultural specificity. This teaching method gives students a coherent understanding of fundamental legal principles rather than an understanding of a single law system. This new approach of law teaching invites students and scholars to think about law in a new way. Furthermore, this new intellectual model of education is undoubtedly “an open door on the world” and it can deepen and expand the way of thinking about law.
In Europe there are many programs which allow students to get to know more than one legal culture. Excellent programs exist in which enable students to study for one or more years in France, The Netherlands, Spain, Germany, or England as a part of the common law world, or to study in any other member state of the European Union. By these inter- and intra- university programs a solid grounding in both the civil and the common law can be acquired. In connection with these issues some questions may come up: “Why did I give a brief analysis about the McGill Program?”; “What is the connection between the legal mixture in Canada in the Canadian legal education and the European Union or the legal instruction in the European Union?”; “What are the advantages of the new McGill Program, should we choose a way of such complexity?”
Rene David had the following standpoint on these questions: “Some are tempted to consider Canada as the Promised Land for comparative law, but the pilgrims are still in the desert”.1 The Canadian legal instruction is based on the coexistence of two legal cultures and something similar, but more complex exists in the European Union. As a consequence, the development of legal education in the EU may have to adapt to the new reality, and analyzing the law teaching at McGill will help us to achieve our goals. In the following, in order to help you to think about these questions, there are some arguments for the above-mentioned questions: (a) a polijural education structure can provide students with a more complex legal knowledge and identity which can be useful in the multicultural world of Europe or in anywhere in the world; (b) a polijural education structure provides both students and scholars with the ability of comparative analysis; (c) with a polijural education, the general legal principles will become more and more important in the European legal community and common legal knowledge; (d) as a result, the European law society will not think in terms of a national legal system, rather in a perspective of several legal jurisdictions2.
1 Rene David: The International Unification of Private Law.Iin: Rene David (cd.) International Encyclopedia of Comparatilve law. Volume 2. The Legal Systems of the World. Their Comparison, chapter 5. Tubingen: Mohr. 1971.208. p.
2 Michael Mc. Auley: On a Theme by Rene David: Comparative Law as Technique Indispensable. 52. Journal of Legal Education. 42-48 p. 2002. Julie Bedard: Transystemic Teaching of Law at McGill: Radical Changes, Old and New Hats. 27. Queen's Law Journal. 237. 2001.
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Conclusions. Finally, what I have in mind is a kind of transsystemic legal instruction I have explicated above, which will be able to contribute to a new European “ius commune", which was based on the Roman law in the past, but today this is a process of coordination of laws within the European Union. This process can be called the re-Europeanization of legal community on the basis of common legal culture and common legal science. Nevertheless, I think that in the aspect of harmonization of European legal education, our law society has to be aware of the cultures, legal cultures, traditions, legal traditions and the tradition of legal education structures of each European country.
References
1. Zsolt Nagy: Metszetek a jogasztarsadalomrol. (Details about the Legal Society) A Polay Elemer Konyvtara. Szeged. 2012.
2. Xavier Blanc-Jouvan: Bijuralism in Legal Education: A French View. 52. Journal of Legal Education. 61.2002.
3. de Mestral, Armand: Guest Editorial: Bisystemic Law-Teaching - The McGill Programme and the Concept of Law in the EU. 40. Common Market Law Review. 799-807. 2003. Netherlands. and European Law Faculties Association. (ELFA) The University of Birmingham. www.elfa.bham.ac.uk.
4. Mark F. Fernandez: From Chaos to Continuity: The Evolution of Luisiana's Judicial System. 1712-1862. Luisiana State University Press. Baton Rouge. 2001. Yves-Marie Morisette: McGill's Integrated Civil and Common Law Program.
5. Journal of Legal Education. 12. 2002. 12-14. p. 2002.; tovabba ld.: The Harmonization of Federal Legislation with Quebec Civil Law and Canadian Bijuralism. Department of Justice. Ottawa. 1997.
6. Pierre-Basile Mignault: L'avenir de notre droit civil. In.: David Howes: Maladroit or Not? Learning to Be of Two Minds in the New Bijural Law Curricula. 52. Journal of Legal Education. 55. 2002. 55-57.
7. Yves-Marie Morisette: McGill's Integrated Civil and Common Law Program. 52.
8. Roderick A. Macdonald: The National Law Programme at McGill: Origins, Establishment, Prospects. 13. Dalhousie Law Journal. 211. 1990.
9. Julie Bedard: Transsystemic Teaching of Law at McGill: Radical Changes, Old and New Hats. 27. Queen's Law Journal. 237. 2001.
10. Rene David: The International Unification of Private Law.Iin: Rene David (cd.) International Encyclopedia of Comparatilve law. Volume 2. The Legal Systems of the World. Their Comparison, chapter 5. Tubingen: Mohr. 1971.208. p.
11. Michael Mc. Auley: On a Theme by Rene David: Comparative Law as Technique Indispensable. 52. Journal of Legal Education. 42-48 p. 2002.
12. Julie Bedard: Transystemic Teaching of Law at McGill: Radical Changes, Old and New Hats. 27. Queen's Law Journal. 237. 2001.
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