Legal teaching and the reconceptualizing of the State: Discussing global law programs
José Garcez Ghirardi FGV Law School SP Globalization has made traditional readings of the State deeply problematical. The vanishing of old frontiers and the building of new walls, which characterize the so-called new global order, have become the object of heated political and theoretical debates. (CERNY, 1999; CHEVALIER, 2003; FUKUYAMA, 2004; SUPIOT, 2015). Law schools are a key player in this controversy as they represent the prime loci where competing ways for reconceptualizing the State vie for primacy. This paper discusses the connections between recent attempts to renew legal education to form global
lawyers and the building of new theoretical renderings of the State. It does so by
examining the rise of Global Law Programs in universities around the world and the challenges their curriculum and teaching methodologies pose to established
representations of the State.
Help me to see: legal education and images of Law
And so immense was the sea and its sparkle that the child was struck dumb by the beauty of it. And when he finally managed to speak, trembling, stuttering, he asked his father: "Help me to see!" The Book of Embraces, E. Galeano1
Law schools play a fundamental role on the way society thinks about Law. Although often eclipsed by their more practical function of forming legal professionals, this shaping of the social imaginary2 regarding the legal world is arguably one of their most
consequential tasks.3 Every class on statutes, every lecture on jurisprudence bespeaks
a specific understanding- albeit often unspoken - of what Law is and of what it should be. Legal education has among its core goals those of shaping students’ representation of Law4 and of furnishing them with the predicative structures5 they will articulate in
their professional life.
1 GALEANO, E. The Book of Embraces. Norton. N.Y., London, 1989, p. 17.
2 I adopt here the concept of social imaginary as developed by Charles Taylor in Modern Social
Imaginaries. Duke University Press, 2004 (mainly in chapter 2, pp 23-30).
3 As david Clark observes: “Legal education, particularly when dispensed in universities, is tied to a
nation's cultural history. The systematic ebb and flow of ideas ripple through law faculties and influence the socialization of students, many of whom take up positions of political importance in society. As a result, the nature of a modern society's legal profession, including its characteristic modes of thought and discourse, is intimately related to the method and manner of training its member jurists” in Clark, David S. “The Medieval Origins of Modern Legal Education: Between Church and State.” The American Journal of Comparative Law, vol. 35, no. 4, 1987, p. 653. JSTOR, JSTOR, www.jstor.org/stable/840129.
4 See MOSCOVICI, Serge. Social Representations: Explorations in Social Psychology. New York : NYU
Press, 2001.
5 Ricoeur, Paul. “The Metaphorical Process as Cognition, Imagination, and Feeling.” Critical Inquiry, vol.
The veritable revolution brought about Landgdell and the case method cannot be fully grasped if this connection between teaching Law and conceptualizing Law is not taken into account. The implications of the pedagogical use of A Selection of Cases on the
Law of Contracts (1871) go far beyond the classroom. The rationale it embodies and
the class dynamics it assumes articulate a set of beliefs about Law which stands in close connection to the conceptual standpoint at the heart of Holmes´s The Path of the
Law (1897). In the United States of the second half of the 19th century, teaching
method and theoretical propositions worked together, if possibly unintendedly, to advance a different way of thinking about Law, about its meaning and that of its institutions.6
Such understanding programmatically opposed the rival positivist narrative, which offered its own version of the connection between teaching methodologies and images of Law. The main theoretic tenets of positivism in its Kelsenian version – v.g. the normative pyramid and the insulation of Law from other areas of life - were in line with the lecturing method and the hierarchical dynamics characteristic of most Law schools when the first edition of Kelsen’s Pure Theory of Law appeared (1934). Similar claims could be made about the close connection between the pedagogic use of the disputatio, in medieval universities, and the understandings of Law prevailing in that period,7 or that between the dynamics of the Inns of Court in seventeenth century
England and legal theories under the Tudors and the Stuarts.8 The way Law is taught
and Law is conceived are inextricably linked, as Harold Berman has elegantly observed: The body of legal learning in which the legal specialists are trained stands in a complex,
dialectical relationship to the legal institutions, since on the one hand the learning describes those institutions but on the other hand the legal institutions, which would otherwise be disparate and unorganized, become conceptualized and systematized, and thus transformed, by what is said about them in learned treatises and articles and in the classroom.9
The rise of global law as an academic object, and the prestige it now enjoys, seems to spring from a similar interplay between changes in the legal imaginary, shift in
theoretical paradigms and innovation in legal teaching methodology. Virtually absent from curricula twenty-years ago, the phrase global law and its variations (v.g. global
6 Coquillette, Daniel R., and Bruce A. Kimball. “Dean Langdell, First Casebooks, and Justice Holmes:
1870–1881.” On the Battlefield of Merit: Harvard Law School, the First Century, Harvard University Press, Cambridge, Massachusetts; London, England, 2015, pp. 304–343. JSTOR,
www.jstor.org/stable/j.ctt1c84drq.13.; León, Fernando Muñoz. “LANGDELL'S AND HOLMES'S INFLUENCE ON THE INSTITUTIONAL AND DISCURSIVE CONDITIONS OF AMERICAN LEGAL SCHOLARSHIP / LA
INFLUENCIA DE LANGDELL Y HOLMES SOBRE LAS CONDICIONES INSTITUCIONALES Y DISCURSIVAS DE LA PRODUCCIÓN ACADÉMICA JURÍDICA EN LOS ESTADOS UNIDOS.” Revista Chilena De Derecho, vol. 38, no. 2, 2011, pp. 217–237. JSTOR, JSTOR, www.jstor.org/stable/41614318.
7 Medieval humanism and other studies by R. W. Southern
8 McGLYNN, Margaret. The Royal Prerogative and the Learning of the Inns of Court. Cambridge Studies in
English Legal History.Cambridge Universit Press, 2003. by (Author)
9 BERMAN, Harold J. Law and Revolution. Cambridge: Harvard University Press; Reprint edition, 1983, p.
lawyer, global governance, global rule of law10) are nowadays omnipresent.
Oftentimes the central theme of courses, seminars and dissertations, this idea arguably shapes also the debate on every field in Law schools as scholars devoted to domestic Law can hardly avoid promising to be examine it from a global perspective. Unsurprisingly, the structure and methodology of Law schools has changed in tandem with this novel conception of Law. On-line courses, virtual universities and the
opening, by top institutions, of teaching centers abroad (mainly in the so-called developing countries) reinforce the notion that legal education is now a global
business – in more than one sense – and that its goal should be to prepare students to act in this inescapable global arena.
This paper suggests that these curricular and methodological changes are embedded in and reinforce a broader intellectual movement which postulates either the “end of the nation State” 11, its “demise”12 or, more modestly, its “withering away”.13 It is argued
that legal education, mainly in the global Law courses around the world, has become a primary tool in fulfilling this post-State prophecy in that it helps develop and naturalize a worldview in which States have ceased to be the central actors in political life. Apart from this introduction, the paper is divided in two sections: Study local, teach global:
the rise of global legal education, which discusses the main characteristics of global law programs and What’s in a name: Brazilian legal education in the BRIC age, which
presents the impact of this new global perspective in the education of lawyers in Brazil.
Study local, teach global: the rise of global legal education
Global Law Programs have mushroomed over the past two decades: from the U.S. to India, from the Netherlands to Brazil, from Portugal to Mexico there is hardly a country which does not count with a Law school offering nationals (and interested foreigners) the possibility of learning Law from a supranational viewpoint.14 Their necessary
differences notwithstanding, these programs seem to share some important features: i) they are usually offered by prominent institutions, whose previous
academic record has granted them national, regional and/or international prestige;
ii) they are presented as innovative, both in content and in methodology;
10 Check one example in https://www.masterruleoflaw.com/
11 GUEHENNO, Jean-Marie.The end of the nation state. Minneapolis: University of Minnesota Press,
2000; OHMAE, Kenichi. The End of the Nation State: The Rise of Regional Economies. New York: Free Press, 1995. Bendix, John, et al. “Going Beyond the State?” The American Political Science Review, vol. 86, no. 4, 1992, pp. 1007–1021. JSTOR, JSTOR, www.jstor.org/stable/1964352. the demise of the nation state.
12 CARNOY, Martin. Globalisation and the Demise of the Nation-State Theoria: A Journal of Social and
Political Theory No. 97, (June 2001), pp. 69-81
13 HELD, David. Democracy and the global order. From the Modern State to Cosmopolitan Governance.
London: Polity Press, 1995, p. 233.
14 The members of the Global Law League offer a good example of this geographical variety. See https://lawschoolsgloballeague.com.
iii) they justify their existence by making reference to a new global reality which requires transformations in Law;
iv) they suggest that this transformation does not affect the international arena only but impacts also the dynamics and contents of national legal systems;
v) they aim to form lawyers capable of proficiently practicing in this new scenario;
vi) they are offered in English.
It is argued here that these characteristics seem to represent the educational
counterpart of post-State theories which have gained momentum since the beginning of this century.15 They deserved, therefore, closer analysis.
The fact that they are offered by prestigious universities – some of the first universities to offer global programs were world class institutions, based mainly in the US and the EU – lends immediate credibility to global law as a sound academic object. As these institutions serve as de facto benchmarks of quality for legal education, their decision to invest so much energy in these programs sends a powerful message to Law schools around the world that this is the way to go. These reverberations follow, as will be noticed, the broader pattern of cultural exchanges between the so-called developed and developing world, where the adoptions of the practices of the former is
considered as a sign of improvement of the latter.
Reinforcing the same dynamics, these new courses are not presented as a mere alternative perspective but seen as innovative perspective, that is to say, there is a suggestion that they are an improvement over previous models. The idea of innovation embodies, in fact, a qualitative aspect as it supposes a better solution to problems than that offered by the theories, practices or products it aims to replace.16 Everyday
advertisement uses the word ad nauseam to convey the idea that the new greatly improves over the old.
This innovative drive is seen not as whimsical or unmotivated. On the contrary: it is portrayed as the necessary response to a broader movement. Globalization is
perceived as an inescapable fact which, though dependent on no one anywhere, forces everybody everywhere to adapt to it. Its network nature17 and the fluid rapports it
promotes make it even more uncontrollable as its source of power remains elusive. Its effects, on the other hand, are clearly perceptible and have to be dealt with. One of the key functions of the academia would be to provide answers on how to best respond to them. A new approach to Law is elemental to performing this task. Precisely because the consequences of globalization take place within national borders, this inexorable phenomenon imposes changes on domestic legal systems.
15 Even a cursory discussion of such theories would obviously be much beyond the scope of this paper.
This topic has been the object of attention by important scholars, among which...
16
Countries face the challenge of either adjusting to the new dynamics or falling behind competitors. As the categories in the World Bank’s influential Doing Business ranking clearly demonstrate, this adjustment has in Law its prime tool and object. Contract, labor and investment rules, for example, - that is to say, key legal areas – have to be altered so as to enhance the viability of countries in a setting of global competition. Court structures and forms of adjudication (as exemplified by the rise of ADRs) must also be renewed as a result of globalization.
Such alterations will not take place in the absence of professionals capable of
designing and implementing them. That is why, unsurprisingly, the education of global lawyers has become a key factor in the quest for success in the global arena. Given the domestic (often parochial) nature of Law and legal institutions, these professionals can hardly be imported because they must have in-depth knowledge of their country’s legal structures – and, hopefully, good local connections to make these changes politically viable. They have therefore to become proficient in establishing a meaningful dialogue between global and local normative systems: they have to be global lawyers.
The language of this dialogue is English. This apparently pedestrian observation has, nevertheless, momentous implications. On the one hand, it acts as a social hurdle, within individual countries, for large numbers of professionals willing to become global
lawyers. This is so because the level of linguistic mastery required for legal work in an
international setting is far from negligible. In most cases, the possibility of successful performance is linked to near-native-speaker language skills. In countries which do not have English as a first or second language, this degree of proficiency is usually within reach of only a tiny fraction of the small fraction of the population with access to University studies.18
On the other hand, given the fact that Law is language, uneven degrees of mastery affect the odds of successfully advocating different positions. In addition, legal terminology does not appear in a vacuum. It is not just that the concepts used are in English: they have a history within English-speaking legal traditions, which are mostly common law. And this tradition is inextricable from the semantic value – and thus legal import – of individual concepts. Although meanings can be (and often are)
renegotiated as new players come into the game, the background against which this renegotiation is made is the English-speaking legal tradition.
It will also have been noticed that national law is not, understandably, the core of these courses. As sketched above, there are plenty and good reasons for that: supporters and critics of globalization converge in the recognition that the field of battle is now the global arena. This is the horizon against which professional expertise in Law is now perceived. Domestic law is often assessed in terms of its ability to adequately responding to this new scenario.
18 This factor has had important implications in the way India, Brazil and China have responded to
globalization, as illustrated by the outsourcing of American call-centers to India (and not to Brazil or China).
As it has been already mentioned,19 this responsive stance is at odds with traditional
readings of the State, specially the key concept of sovereignty, which implied the capacity of a State acting on its own terms - even if this was this was a mere rhetorical claim. But the very fact that it could function as a rhetorical strategy stresses that the received wisdom is that international relations initiated in the interest of a sovereign State which would them parlay, as an equal, with the other member of the community of nations.
This seems no longer the case. The relevant international community today has been greatly expanded and made much more complex: a vast array of international
organizations, both public and private, global corporations, ONGs, alongside a variety of supranational communities (as the EU or the many economic blocs) appear to have pushed the Nation State to the condition of being one more player as opposed to the major player it used do be.20
Mirroring the fate of King Lear, the Nation State sees its commands less likely to be enforced as its economic and political power wanes. The authority of domestic law, the very heart of national political power, has now to compete fiercely to assert itself in face of other normative, global systems which vie for control of very concrete aspects of national life.
The consequences of this shift in viewpoint are not restricted to global law programs: it affects legal education as a whole, including, most noticeably, undergraduate courses. The following sections aim at clarifying this claim by examining the case of legal education in Brazil.
What’s in a name: Brazilian legal education in the BRIC age
[to be developed after the conference]
19 CHEVALLIER,
