Rule of law depends at least in part on how we teach

Differences in legal education between civil law countries and the United States—and analogous divergence in priorities in the American law school classroom—might have ramifications for the rule of law.

Prof. Vernon Palmer leads an Obligations I class.
Tulane Public Relations via Wikimedia Commons CC BY 2.0

Legal education in the United States and in the civil law countries of Europe are famously different. The American model is identified with case law, the Socratic method, and inductive reasoning. The civil law model is identified with code, lecture, and deductive logic.

Both sides have plusses and minuses, and that might be why, in recent decades, we see signs of change and convergence. American legal education has sought to marginalize the traditional model to one strategy on a menu of effective pedagogies. Meanwhile, many schools in Europe have sought increasingly to import the "Paper Chase" style of classroom engagement.

Teaching periodically in Poland for more than 15 years, I've found students delightfully receptive to the classroom experience that U.S. law students take for granted. I'm inclined to conclude, generalizing of course, that the way U.S. law professors interact with students has the potential to contribute valuably to education in Europe, where lecture still predominates. My U.S. students tend better than their European counterparts to develop forensic skills and to use analogical reasoning.

At the same time, I have found, generalizing again, that my students in Europe are better versed than their American counterparts in the history and philosophy of law. Their understanding of context is informed by a storied Latin vocabulary. They are better able to convert memorized knowledge to application.

There is no doubt that the way law schools teach has an impact on how lawyers work and think about the law. What's less clear is the extent to which this impact represents a normative social advantage—for example, better preparing lawyers to protect human rights and uphold the rule of law.

In recent years, Europe has been struggling with rule-of-law crises in central and eastern Europe. In particular, populist movements embodied in the Duda and Orbán regimes in Poland and Hungary have given rise to disputes over judicial independence. In a similar vein, the Romanian legislature enacted judicial reforms in the late 2010s. 

Ostensibly, the Romanian reforms were implemented to combat corruption. But that's not how Brussels saw it. The reforms wound up before European Union courts, culminating in judgments in 2021 and in 2022. The 2021 judgment of the Grand Chamber has been well regarded as outlining a progressive tolerance for the development of the rule of law while affirming EU supremacy ("primacy") in constitutional law for matters within the union prerogative.

Unfortunately, Romanian resistance to that supremacy caused the Grand Chamber to revisit the problem last year. Notwithstanding the proceedings in European courts, pro-reform domestic authorities and the constitutional court of Romania had upheld the reforms. Authorities moreover asserted that lower court judges could be subject to discipline for testing Romanian constitutional court rulings against the requirements of EU law.

The Grand Chamber held in 2022 that "ordinary courts of a Member State" must be permitted "to examine the compatibility with EU law of national legislation which the constitutional court of that Member State has found to be consistent with a national constitutional provision that requires compliance with the principle of the primacy of EU law"; and that domestic judges may not be disciplined for "departing from case-law of the constitutional court of the Member State concerned that is incompatible with the principle of the primacy of EU law."

At the meeting of the General Congress of the International Academy of Comparative Law (IACL) in Asunción, Paraguay, in October, a panel on rule of law examined national reports from 16 countries, including the United States, Poland, Hungary, and Romania. I found especially compelling remarks by the rapporteur for Romania. (I'm sorry that I did not get the rapporteur's name; it does not appear in the composite issue report.)

Law professors everywhere, laudably, want their students to be prepared for any job, the rapporteur said. But European students feel they're trained as if to become judges. Roman heritage, Roman law, he said, is sacred. Motivated to prepare students to do legal reasoning, he said, European law professors train students that there is "only one correct meaning," "one true meaning" of a text, and the students, in turn, "become very formalistic." 

Often, he said, judges then "miss the point" by "applying law automatically." And that was the problem, he opined, with the Romanian constitutional court in upholding the judicial reforms. The court reasoned, he explained, that because rule of law exists in both the Romanian constitution and EU treaties, the court "blindly" concluded that Romanian law comports with EU law. "False," he said; "it's the way in which we teach."

In other words, the Romanian judges assessed black-letter law for comportment with black-letter law without digging beneath the surface. They were ill equipped, or declined, to look beyond formalism to test the law functionally. Moreover, by shielding the constitutional court's analysis from further interrogation in the lower courts, top jurists were excessively insistent on the exclusivity of their prerogative: one true meaning.

I don't know enough about the situation in Romania to assess the merits of the Romanian position, or the EU position, or the perspective of the rapporteur. But I was intrigued by his parting thought:

"I'm astonished," the rapporteur said, that "in the United States, you practically criticize law professors that they don't tell you the true meaning. It would be a pity to change that."

As I wrote recently, law professors in the United States are under great pressure to abandon traditional teaching methods in favor of bar prep and skills readiness. Law schools such as mine place little value on policy, theory, and moral deliberation, but prize memorized law and practice skills. The latter are valuable, to be sure. But it's the former that make law a profession and not mere occupation. 

Prioritization of occupational objectives pressures professors to abandon the traditional teaching strategies of the American model. Cases give way to code, or rules. Inductive reasoning gives way to deduction. Socratic dialog gives way to PowerPoint outlines, recall games, and lectures. This is convergence of a sort. It's not a good sort.

I don't contend that the traditional model of legal education in the United States is superior to other models. Nor would I enshrine the case method to the exclusion of a multitude of teaching strategies. But American legal education in the 20th century excelled at preparing lawyers to turn problems over and examine them through many lenses.

If we do our job right, law professors create a space for creativity to thrive. That creativity defines law as a profession. And only as professionals can lawyers safeguard the rule of law.

It would be a pity to change that.

Me and my mate Octavio Sosa in Paraguay. A first-year engineering student, he plays a mean guitar.
RJ Peltz-Steele CC BY-NC-SA 4.0

 

Customary law undergirds justice systems in Africa: A-courting in Harare

Outside the "Harare Civil Court" buildings, a discarded sign reads, "Harare Magistrate's Court / Civil and Customary Law." Other court building in Harare are pictured below. All photos RJ Peltz-Steele CC BY-SA 4.0.

The integration of customary law into national legal systems based on post-colonial polities is a challenge, and an opportunity, throughout Africa. I wrote recently about customary legal authority in the Casamance region of Senegal, and Zimbabwe is no exception to the norm.

The Zimbabwe constitution expressly preserves customary law, and federal enactments spell out the scope of customary law in sensitive areas, such as marriage and child care. The constitution creates customary courts and charges other courts, including the Supreme Court, with respecting and developing customary law, just as they do common law. For NYU Law GlobaLex, Saki and Chiware (updated by Pfumorodze and Chitsove, 2017) further explained:

The main reason for the existence of these customary law courts is to provide a justice system to ordinary people in rural areas which is consistent with African custom and values.  It is  realized that most ordinary Zimbabweans regulate their lives in accordance with customary law to the extent that the legal ideas and institutions inherited from the system has  preserved the authority of traditional leaders  to adjudicate in civil disputes by customary law.

In Zimbabwe, customary courts have jurisdiction over civil, but not criminal, matters. Common law controls in the civil sphere, while criminal law is strictly codified in Zimbabwe's mixed system.

Scales of justice adorn a high court building where criminal cases are heard.

Jehovah's Witnesses occupy the walk outside the characteristically modest legal aid office.

Your humble blogger stands before the highest court('s house) in the land.

Constitutional Court.

Cameroon human rights record prompting Washington to end trade preference includes internet shutdowns

The announcement that the United States will end trade preferences for Cameroon in response to the country's human rights record marks some good news out of Washington and exemplifies the kind of "quid pro quo" that foreign policy is supposed to leverage.

In a freedom-of-expression angle to the story, documentary filmmakers screened Blacked Out: The Cameroon Internet Shutdown at RightsCon 2019 in Tunis over the summer.  The presentation fit perfectly into one of the key conference themes, "#KeepItOn."  I was privileged to be there and to meet one of the filmmakers, who talked about the extraordinary risk of documenting the minority anglophone community in Cameroon today.  More at Quartz Africa and at the Blacked Out YouTube channel.  The film can be viewed on YouTube in its 43-minute cut or its 65-minute uncut version, below.

Of interest to legal comparatists, there's an interesting underlying story in Cameroon's civil law tradition arising from a merger of French and British political possessions.  That's not the subject of the movie, but you can imagine the tension of legal tradition running in tandem with tensions of culture, language, and history, and all of that overlaid on and obscuring, in classic imperialist fashion, pre- and still-existing tribal cultures and customary legal traditions.

Comparative research overviews tort law throughout Central America

Dean Castro Valle

Dean Claudia María Castro Valle of the Universidad Tecnológica Centroamericana (UNITEC), Honduras, has published a fascinating comparative overview of Central American tort law in Louisiana State University Law's (11:1) Journal of Civil Law Studies (2018).  The article is available for free download.

Dean Castro Valle nimbly frames the civil law mechanisms of Central America in the context of tort objectives, considering the interplay of corrective and distributive justice and the amalgamation of Roman and Anglo legal principles.  There is too little such scholarship about Latin America, owing in part to the language barrier.  Dean Castro Valle's research arises in the context of regional interest in economic and legal integration, a reminder that Central America should not be forgotten as a rising and economic and political force in the twenty-first century.

Here is the introduction (footnotes omitted).

In order to achieve the proper protection of individual interests, tort rules need to be applied efficiently whenever these interests are subjected to any kind of harm. For that to be possible, the traditional approach has been the acceptance that any loss or injury sustained by legally protected interests must meet certain requirements. The requirements include the actual existence of specific regulation designed for their legal protection, compensability, imputability to a person other than the victim, and certainty. Hence, tort is generated from the infringement of the general duty of respect due to any legally protected interest. It is a non-contractual obligation imposed on a person, in order to compensate the holders of such interests, for any injuries or losses caused. These interests can be either material or moral.

The primary requirement for the application of tort law is that the sustained damages, losses, or injuries must originate from a negligent or intentional activity or omission. This means that care and
precaution were omitted in the execution of such activity, and that the causation between this activity and the harmful effects can be proved in a court of justice. However, tort liability is essentially patrimonial. Its function is to grant, impede or repair a specific economic loss, while its application allows the reparation of indirect patrimonial injuries and non-pecuniary damages.

The aim of this paper is to compare the way that tort liability is regulated in the Central American civil codes (Guatemala, El Salvador, Honduras, Nicaragua, Costa Rica, and Panama), understanding the similarities and differences in their approach. This sort of analysis could be the base of any harmonization effort, so relevant in the actual regional context, in view of the recent developments of the Central American economic integration process.