'Threats to internationalised legal education in the twenty-first century UK' by
Jessica Guth and Tamara Hervey in (2018) 52(3)
The Law Teacher asks
What are the prospects for internationalised legal education in the contemporary UK? Our reflections on this question were prompted by three relatively recent publications dealing with a variety of aspects of the internationalisation of legal education, as well as discussions in and outputs from “Brexit and the Law School” events in Liverpool Law School, Keele University, Strathclyde University, and Northumbria University during 2017. We argue that, although law is often assumed to be state based and jurisdiction specific, there are significant reasons to internationalise legal education but that in the current climate of Brexit, marketisation of higher education and the Solicitors Qualifying Examination such internationalisation is under threat.
The authors comment
Why internationalise legal curricula?
What are the prospects for internationalised legal education in the contemporary UK? Our reflections on this question were prompted by three relatively recent publications dealing with a variety of aspects of the internationalisation of legal education, as well as discussions in and outputs from “Brexit and the Law School” events in Liverpool Law School, Keele University, Strathclyde University, and Northumbria University during 2017. We argue that, although law is often assumed to be state based and jurisdiction specific, there are significant reasons to internationalise legal education. Teaching of EU law has ensured that at least basic elements of Europeanisation (and thus at least a variant of internationalisation) have had a relatively secure place in UK law schools. That place is now under threat. Our concern is that, over time, Brexit is likely to lead to EU law no longer being regarded as a “core subject” in law degrees in England and Wales, and perhaps also in Scotland or Northern Ireland. This change to UK legal education will be strengthened by the forces of marketisation in higher education more generally. In England and Wales, where such marketisation has gone the furthest, its effects on internationalisation of legal education will be exacerbated by changes to legal education and training mandated by the professional bodies regulating the legal professions, and the Solicitors Regulation Authority (SRA) in particular. These changes to the broader landscape of legal education have a knock-on effect on the curriculum more generally, as well as on the make-up of our law schools, in terms of staff and students. Overall, these effects are likely to lead to a less international and internationalised legal education, when considering the UK as a whole. We expect there to be some exceptions to that general trend, which we expect to be particularly strong in the regions of England.
We first outline possible reasons for internationalising legal education. We then consider the role of EU law teaching in contributing to that internationalisation before examining the impact that Brexit and other factors, in particular changes brought in by the SRA, might have on the teaching of EU law and internationalisation more generally.
Law seems to be a parochial, state-based subject. Despite discussions of “law and globalisation” since at least the late 1990s, and arguably much earlier, which continue to the present day, in mainstream legal discussions, law’s legitimacy and authority stem from the state. This is true also of public international law (at least in terms of its dominant discourses), which is understood as the law of states. Equally, private international law and comparative law are concerned with the interactions between different (implicitly state-based) legal systems, or the influences of one legal system, or aspects thereof, on another. Influences could be through legal transplants, for instance transposing a civil or criminal code, or statute, from one system to another; or through the persuasive power of rationes across common law jurisdictions. These understandings of the state-grounded nature of law are reflected in the curricula of law schools across the world.
Nonetheless, many law schools have sought to “internationalise” their curricula. Indeed there is a burgeoning literature on such internationalisation of legal education. Internationalised legal education is increasingly well represented particularly in the “elective” side of legal education, though it remains extremely light in the core curriculum. At least four interlocking and overlapping reasons (which are both “instrumental” and “non-instrumental”) may motivate such curriculum development: the economic, the academic, the political, and the humanistic or social, ethical and personal developmental.
The most obvious instrumental reason is the economic. The world is interconnected, and becoming increasingly so with technological developments particularly in communications both real and virtual. As Christophe Jamin and William van Caenegem put it, globalisation drives “a universal need for people trained in international questions”. Globalisation processes cannot but include law and legal systems. Law students therefore need an education that goes beyond domestic law, and this is understood as a need that is set to continue. Law graduates who can solve problems in many locations and across locations in culturally sensitive ways are and will continue to be attractive to (at least some) future employers. Curricula should be “future proofed”, not “teaching to ossified professional contexts”, and that means a future within which internationalisation is valuable. s
Law schools as economic actors therefore seek to situate themselves, and their students, within, rather than apart from, the rest of the world: in the sense of both the local and the global communities that their graduates will serve.
Scholars such as Margaret Thornton and Lucinda Shannon see a much darker instrumental side to the economic rationales behind recent internationalisation of legal curricula. For them, internationalisation in law schools is part of a marketing fiction, the idea that a law degree is a fulfilling experience, replete with promise of interesting and engaging future careers. Actually, behind the marketing “puff”, law chools all offer essentially standardised opportunities and service of legal education. These are very much based on national curricula, driven by higher education qualifications frameworks, but above all by professional statements of the “foundations of legal knowledge”. Instrumental legal education (especially on an “apprentice” model of professional training, but even on a “university” model in this sense means domestic legal education.
Academic reasons for internationalising legal education could be categorised as either instrumental or non-instrumental. Learning about what the law is represents only a very thin notion of legal education. A more substantial academic pursuit – which is at least arguably also more “useful” – moves beyond the merely descriptive towards the explanatory and analytical. If a law school seeks to help students to develop understandings of why the law is the way it is, an internationalised curriculum can help, by showing how legal systems are connected by histories (for instance, colonial histories, or legal transfers for the purposes of law reform, or borrowing of legal reasoning through the common law method). Further, comparative legal insights can help students to develop critical thinking, by demonstrating that there is more than one way to solve a particular legal problem or puzzle.
This latter reason shades into the political: internationalisation can have the effect of shining a light on the ways in which a particular domestic legal system is implicitly presented as “the best” through legal education. Where carried out adeptly, raising students’ awareness of “the vastness of approaches crafted by law across the globe” prompts the kinds of critical thinking that expose such assumptions for what they are. Further, showing that “law means different things in different jurisdictions” can prompt thinking about questions of legal legitimacy, authority and power. But conversely, internationalising the content of legal curricula may actually have the opposite effect. Relatively narrow, yet politically dominant, systems or approaches may be subtly presented as “the best” among comparative material. Patterns of neo-colonialism play out in legal curricula as much as they do in higher education more generally.
The least “instrumental” reasons for internationalising legal curricula could be described as humanistic, social, ethical, or personal developmental. Developing skills of critical thinking, a sense that there is more than the local/national, ability to use legal reasoning and argument to achieve different ends, and awareness of relations of dominance, and the roles law plays to feed those relations, all do more than equip students for future careers. These kinds of educational experiences also provoke social and personal reflection, leading to development as a socially and ethically aware human being.
Thornton and Shannon argue implicitly that the way that the consumerised marketing of contemporary legal education operates precludes this kind of deep experiential reflective and developmental (non-instrumental) learning. Such marketing does so through a kind of double-shift. First, law school marketing seeks to distance the law school “experience” on offer from the kinds of individual development associated with education in its traditional higher education sense. Law schools downplay the actual work, the intellectual, emotional or psychological discomfort involved in studying law, constructing a law degree within “a neoliberal … shift from engagement to passivity” in higher education generally. And second, law school marketing and the development of legal curricula on offer seek to reconnect legal education with the domestic profession, the “economic”, and a strongly instrumental rationale for law degrees. Legal education offers placements, experiential learning, and problem-solving/problem-based learning, all designed to persuade students that they will graduate with skills and competencies ready for the profession they seek to join.
Historically, of course, across Europe, legal education has often been understood solely as professional training, and this was certainly so in England and Wales with its “apprentice model”. The debate about whether legal science is a “proper” subject for university study is one which echoes through the centuries. Each generation of law school academics and legal professionals plays out its own version of the discussion. In Thornton and Shannon’s account, “law school marketing is strongly correlated with the vocational aspects of legal education”, law schools are seen as a branch of the legal profession, with a commercial focus, and teaching applied “real world” skills. In Member States of the European Union, EU law is the “law of the land”, so instrumental rationales coincide with learning law that goes beyond that of the state. To a lesser extent this is also true of EEA law, and at least some of the law of the Council of Europe. For many law schools, including outside Europe, these “real world” skills include a focus on internationalised lawyering, particularly having in mind elite global law firms and emerging markets, especially in Asia.
The phrase “real world skills” when used in this context reinforces a particular notion of the university, and of its staff and students. Far from being significant contributors to economic, political or social life, universities and the law schools within them are constructed as a fantasy place (an “ivory tower”) where “normal life” is suspended. Their only use is to grant degree certificates showing examination requirements have been satisfied; they are not per se places of learning. The place of internationalisation in the law curriculum thus rests only on instrumental justifications: international legal education is secure only as long as (at least some of) the legal profession seeks it. Or to put it another way, the logical consequence of this line of reasoning is that – outside the context of the European Union – international legal education is only for those in demand as future elite “global lawyers”.
