Institutional approaches aimed at internationalization of legal education are still very much influenced by the understandings produced in the 1960s of the characteristics of the various educational systems. My purpose on this presentation, is to question, for purposes of discussion, the current validity of these understandings.
A. The understandings of the 1960s
In a presentation made 27 years ago in Perugia - curiously, not very far from where we are meeting - John Merryman outlined these understandings:
First, an almost monopolistic state influence on legal education of the continental type, whereas in the North American tradition, the strength was primarily in the private sector.
Second, a contrast between the emphasis placed on merit in the North American tradition which is confronted with access, and democratization in the continental system with the consequent massive expansion of that tradition's institutions.
Third, the focus on training in legal doctrine that prevails in the continental tradition, as opposed to the "policy" emphasis in education of the North American variety, a perception that is also fueled by the undergraduate character of continental legal education.
Fourth, the basically professional character of North American legal education, as opposed to the broadly cultural aspects of its continental counterpart;
Fifth, the curricular flexibility of institutions which are part of the North American tradition, as opposed the rigidity constraining those of the continent.
B. The impact of these understandings on the internationalization processes
These understandings must be continually re-examined. Otherwise, they may cause unnecessary confusion in efforts to integrate legal education, at least insofar as such efforts are aimed at promoting major initiatives, similar to integration efforts taking place in other educational realms.
The freer flow of students between good institutions in various countries, the recognition of legal studies made outside one's own country, procedures for recognizing degrees, greater integration of institutions, and joint research projects all assume mutual trust. It seems to me that such trust can be better nourished if the understandings mentioned above can be re-examined in the light of today's pressing realities.
In the integration process, the traditional understandings prompt questions such as the following: Should academic projects of value in the continental world be handled only through state institutions? Must institutions in the continental tradition start with the premise that their North American counterparts do not share their commitments to democratization and to access to legal education? Does continental legal training lack attention to issues of public policy which are essential to training lawyers in our own times? Is North American education fundamentally committed to lawyerly skills and uninterested in the law as a scholarly discipline?
C. Change in the environment.
The last two decades of the 20th century make it necessary to re-examine the traditional understandings.
To begin with, higher education in the continental world, including legal education, has not been immune to the winds blowing these decades toward emphasizing the capabilities of the private sector. That world now has major private initiative educational institutions, which while still young, are becoming ever more dynamic.
In Guatemala, for example, the president of the Supreme Court is a graduate of the Francisco Marroquín University, a private institution started by business groups, rather than from the traditional San Carlos of Guatemala University, although the latter certainly retains high prestige even after losing its historic monopoly. Our Chilean colleague invited to this conference heads the law school at the Diego Portales University in Santiago, a vigorous private institution in that important country, where for decades the more traditional University of Chile and the Catholic University held sway by themselves.
In Madrid and Barcelona, several private enterprise projects have broken the monopoly held by the centuries-old state universities. For its part, the state, in some of its more recent university projects, has set about creating institutions whose profile - in terms of size, plans, and internal culture - is closer to that of a law school in the North American setting than to that of their European counterparts with their longer history. Such is the case, I believe, with the law schools at the universities of Pompeu Fabra in Barcelona and Carlos III in Madrid.
Secondly, at the end of the century just concluded, the continental university, in those instances where it was overcommitted to access rather than quality, was beginning to move toward a better balance. Schools of science and medicine were more or less effective in breaking with the political problems entailed in the change, and they were able to adopt limited admission systems. Law schools took rather firm steps in the same direction. In many places, including Spain, admission to law schools began to depend on standardized aptitude tests, which, while not as ambitious as the American LSAT, are successfully pursuing the same objective.
In any case, a more careful examination of the continental situation reveals that, rather than downplaying merit, this tradition was actually seeking other ways of making it operational. While the law school at the San Carlos of Guatemala University has 12,000 students enrolled, it graduates only around a hundred a year. The University of Barcelona, while admitting around a thousand students per year, graduates only about six hundred.
On the opposite side, during the second half of the 20th century the supply of legal education in the United States notably expanded as new schools arose and others expanded in size. Thus, at a time when the number of applicants to law schools is declining, one could think that perhaps anyone who with minimal qualifications becomes interested in studying the subject could find an institutional willing to admit him or her. One could even think of institutions - those of lesser prestige - that in practice operate on an open admissions system. Thus, the system as a whole, albeit not each individual institution, may be seen as much more liberal in admittance than is apparent from simply examining the situation of the more prestigious institutions.
Third, the teaching profile in both traditions, if at one time it really had the differences described so zealously during the second half of the past century, seems to have lost them, at least to a great extent, as the century drew to a close. Whether because of the growing familiarity of the faculties of the different traditions, or because of the independent evolution of standards of quality in both traditions, today the standard for measuring what constitutes a good law class does not seem to be very different in the main academic cultures. My perception of the experience of students who participate in international programs in good institutions in Latin America or Europe for example, is that with differences of style and degree in approaches, substance and method - differences that are certainly there - the quality of instruction is comparable. That is true of both the methodology followed and the day by day approach to broader issues of legal policy that go beyond matters of exegesis of current legislation. I also have the impression that in the North American tradition of tradition, whether through greater contact with the intellectual output of the continental style or through internal developments, legal doctrine is being examined more openly. It is not surprising to see discussion of cases in a course on constitutional law in Latin America, nor to see in a similar course in a North American school discussions of the work of Larry Tribe on the matter.
Finally, the continental curricular structure, rigid to the point of sometimes not allowing room for students to make a choice, is now becoming increasingly liberal in allowing such space to be created. As I see it, students in the continental tradition are increasingly being granted more space for being involved in designing their course of studies.
D. The new differences
In saying the foregoing, I do not mean to say that the rapprochement between institutions of legal education in the different traditions is today finding a barrier-free path to understanding. What I do think is that our barriers today are different, and they are not always structural as were those that are now overcome, but they are not necessarily less significant.
At stake are issues such as the following, by way of example:
First, the level of resources of the institutions of the different communities may be different. Efforts at internationalization are expensive. They demand investment which may not yield fruit immediately. The institutions of the various communities do not necessarily have equal resources for undertaking the task.
Second, the indirect resources for supporting the educational task are likewise not similar. In terms of internationalization initiatives, the funds allocated for education, which are channeled through students, may be especially significant. A student who has state-guaranteed loans for financing his or her participation in an international program will be much better prepared to benefit from such programs than a student who has to pay the cost of participation out of family assets.
Third, the forces favoring the internationalization of legal education sometimes clash with forces seeking to protect specifically municipal-level interests that may also have a valid space in the life of some institutions. For example, universities in some countries feel strongly identified with the national character of the lectureships. They see the lecturer as a government employee who, barring extraordinary circumstances, by that very fact ought to be a citizen of the country. As valid as such perceptions may be, they do not encourage the internationalization of faculties. Initiatives such as those promoting joint appointment of professors between institutions in different countries as a linking mechanism, may run up against obstacles of this nature.
Fourth, the differences in the organizational arrangements of law schools and departments of the different traditions, also tend to impede interrelations. A North American style institution, which operates as a whole without subject-based departments, may take a long time to understand that in relating to their counterparts in another tradition they must communicate with an academic department, not simply the law school as a whole.
These are the issues that, in my judgment, influence our efforts to link up transnationally. The manner in which we deal with them can greatly affect the success of our efforts.