Imaginative legal education and the rule of law

English-Medium Legal Education in Continental Europe: Maastricht University’s European Law School - Experiences and Challenges

Abstract: To prepare law students for a tougher, rapidly changing legal world, European law schools need to reinvent themselves. This article argues that European legal educators should focus on equipping students with a broader skillset enabling them to become successful advocacy experts, effective legal risk analysts and creative legal problem-solvers. As part of a new, thoroughly interdisciplinary curriculum, legal education should concentrate on the acquisition of rhetorical skills and social-scientific tools allowing students to apprehend legal rules as the product of social dynamics as well as as instrument of social organization. To preserve their commitment to free, mass legal education, European law schools should also embrace full-scale digitalization to free up time and scarce teaching resources for more interactive and more experiential forms of learning.

Law schools are peculiar places occupied by, dependent on, associated with, and exerting influence on a myriad of institutions and stakeholders. From law students’ efforts at mastering the allusive skill of legal reasoning to the challenges both tenured and untenured academic staff face in the neoliberalist higher education model where the legal profession and the consumers of the law school product exert increasing – and sometimes even impossible – demands, law schools and its populace have always been contested, hierarchical and image-conscious spaces. Indeed, as Ralph Shain noted in the Journal of Ideology in 2012, “[a]nyone who has suffered through law school would be grateful to have a good polemic against the institution”. This article offers such a polemic against legal education in the Hong Kong Special Administrative Region. Over a period of four years, a selection of postgraduate law students from one of the (three) higher education institutions responsible for legal education and training in Hong Kong were asked to reflect upon their legal studies and future roles as legal professionals with reference to the 1983 self-published pamphlet by Duncan Kennedy, entitled “Legal Education and the Reproduction of Hierarchy: A Polemic Against the System”. Kennedy’s essay offered a critical analysis of the role of legal education in American social life at that time, and the manner in which it reproduced hierarchy in law, legal education, the legal profession, as well as in society generally. The narratives informing this article show that almost 40 years subsequent the publication of Kennedy’s text, and in a jurisdiction with an altogether different social context and facing its own political turmoil and civil rights’ aspirations, many parallels can be drawn with what Kennedy had observed in 1983.
 Part I of this article sets the scene with a detailed overview of the legal education and training landscape of the Hong Kong Special Administrative Region from a legal-historical perspective to date. The discussion and analysis then turn to the narratives of Hong Kong law students, offering a window into their experiences as (unintended) participants in the hierarchies of law and legal education in Hong Kong. Much more, however, can be gleaned from these narratives than just how these students perceive their present legal studies and future roles as legal professionals in the Hong Kong Special Administrative Region. These narratives also offer a critical reflection on Hong Kong’s colonial past and present status as a Special Administrative Region of the People’s Republic of China under the principle of “one country two systems” (Part II). Culture-specific values impacting on these students’ legal studies and career decisions are revealed (Part III), and troublesome shortcomings in the current legal education and training landscape vis-à-vis the legal professional fraternity and political and socio-economic reality of Hong Kong are laid bare (Part IV). Much like Kennedy’s 1983 essay failed to bring about any real change in how law schools go about their business as cogs in the apparatus of social hierarchy, the narratives informing this article also conclude on a rather sombre and futile note. Be that as it may. At least their voices have been heard and the seemingly inescapable power struggles noted. This too is an important function of the law and legal discourse.

Fixing Europe's Law Schools

Future-Minded Legal Education in Europe: The European Law School

The ‘rule of law’ remains an elusive commodity in Afghanistan. Securing a stable Afghanistan underpinned by the rule of law has proven exceedingly difficult despite widespread consensus in the international community regarding its fundamental importance. There is broad recognition that structural flaws in the Afghan justice system and legal profession undermine access to justice and democratic governance. Lawyers are indispensible to consolidating the rule of law; they draft laws, administer justice, shape government policy, and inculcate respect for individual rights. Yet, nobody, including the Afghan government, knows how lawyers practice in Afghanistan. Even less has been written about the process of educating Afghan lawyers even though a country's system of legal education has an undeniable impact on its legal system. Lawyers' education, especially in developing or transitional countries like Afghanistan, impacts how they ‘practice their profession, both in private and government roles.’ Legal education also promotes scholarship and practical expertise among a diverse range of government officials. Legal education is, thus, essential to the rule of law. This article provides an overview of the Afghan legal education by weaving together the scant existing literature and complementing it with several interviews with Afghan law professors to illuminate important historical and recent trends. It also begins to gather the baseline information urgently needed to better inform international efforts to promote the rule of law through assistance to the Afghan legal education system.

Should We Teach (A Bit Of) U.S. Civil Procedure In the European Law Schools ?

The overall trajectory of American legal theory during the twentieth century was as follows. At the outset, a formalist faith gripped the judiciary and the law schools. Resistance to that vision among judges, lawyers, and law teachers gradually increased, ultimately finding full expression in the legal realist movement of the 1920s and 1930s. The realist wave ebbed in the 1940s, but left behind a host of new questions concerning the nature and scope of judicial discretion, the role of “policy” in lawmaking and legal interpretation, the appropriate relationship between public and private power, which branches of government should be entrusted with which legal issues, and, most broadly, the meaning and feasibility of “the rule of law.” After World War II, a new orthodoxy emerged, offering answers to those questions that seemed convincing to most legal scholars and lawmakers. Beginning in the 1960s, that new faith – dubbed by its successors, “process theory” – in turn came under attack, not from a single direction but from many angles simultaneously. The attackers, marching under the banners of “law and economics,” “law and society,” “Kantian liberalism,” “republicanism,” “critical legal studies,” and “feminist legal theory,” offered radically different visions of the nature and purposes of law. Each group attracted many adherents, but none swept the field. The net result is that, in the early twenty-first century, legal discourse in the United States consists of a cacophonous combination of issues and arguments originally developed by rival movements, some now defunct and others still with us.

Legal education is an essential foundation for the sustainability and development of society, ensuring democracy and security by preparing future lawyers, including judges. In an era of rapid digitalization, security issues in legal education are becoming increasingly relevant. Problems such as access to confidential documents, insufficient knowledge of digital security risks, and the lack of protection mechanisms pose significant threats to students, faculty, and lawyers. Addressing these issues is essential to maintain trust in the legal system and ensure the integrity of legal education. The aim of this study is to analyze security aspects in legal education, focusing on the need to improve students' understanding of legal and practical security issues. The study explores how cybersecurity training can be integrated into legal education so that future lawyers acquire the necessary skills to responsibly handle sensitive information in a secure digital environment. The study uses a qualitative research approach that includes a review of the legal framework, academic literature and case studies on cybersecurity challenges in legal education. Comparative analysis is used to examine best practices across jurisdictions regarding security measures in legal studies. In addition, expert opinions from legal professionals and educators are taken into account to assess the effectiveness of current approaches and identify areas for improvement. The results highlight the need to integrate cybersecurity courses into legal education curricula and improve regulatory frameworks to address digital security risks. A more comprehensive approach to legal education that includes practical cybersecurity training would improve students’ ability to navigate ethical and professional challenges in the digital age. Implementing these measures would not only reduce cybersecurity risks, but would also better prepare law students for their professional responsibilities by ensuring their competence in protecting sensitive legal information.

Today, it is not easy to find a view that denies that the purpose or basis for the existence of the state is the protection or realization of the basic human rights of the people. In other words, state power or state order that neglects the protection and realization of the human rights or basic rights of the people cannot be evaluated as legitimate. Since modern times, the consciousness that a democratic rule of law should not infringe on the freedom and equality of the people but should protect and realize them has become common. To harmoniously realize the basic rights of the entire people in today's world, on the one hand, if the state restricts the basic rights of the people, the necessity and legitimacy must be demonstrated, and on the other hand, the argument that the state bears the obligation to improve the overall legal system, such as organizations and procedures, to substantially and objectively guarantee the freedom and rights of the people is gradually gaining traction based on the basic rights protection obligation theory. Despite such developments in constitutional theory, the problem of state power infringing on the basic rights of the people has not been solved. In addition, although the infringement of basic rights (such as the right to self-determination of personal information and personal rights) by private persons has been made more frequently and in a more sophisticated way due to deepfakes, hacking, and flooding of false and manipulated information, doubts or criticism about the function and capacity of the state to solve this problem has been sharply raised. In this situation, the topic of “human rights of the state and the people” itself needs to be considered to determine what approach is desirable despite its constitutional significance and importance. It does not stop at redefining the constitutional theory that defines the basic rights of the people as “the people's public right by the rule of law” and has the character of the people as a subjective public authority and as a standard or guideline for forming the state's objective value order. This paper aims to examine the relevant laws and conditions in detail, focusing on the mechanisms by which the state and local governments protect and realize the basic human rights of the people. By cross-examining the history, universality, cultural diversity, and specificity of human rights, the relationship with state power, and the meaning of human rights in the national order were identified, and the role and limitations of the state to protect the basic rights of the people were reviewed, focusing on the third generation of human rights that are emerging today.

This thesis was inspired by my work as an international tax adviser to the Maldives on behalf of the Asian Development Bank from 2011 to 2015. The Maldives had just transitioned from what was an autocracy to a supposed democracy, and from a tax haven to a country with new direct and indirect tax regimes. During that period, I regularly witnessed Legislative, Executive and Judicial manoeuvres that were the antithesis of what I had always taken for granted in New Zealand as fair treatment of people in accordance of the rule of law. I observed the contradictions both generally in Maldivian society and in the taxation field. I began to question why there was a stark contrast between what I was observing in the Maldives and the ideals of a fair and equitable society, which my New Zealand upbringing, education and experience had instilled in me. This thesis is therefore the outcome of a study of what the rule of law is supposed to be and whether, because the Maldives is a small, conservative Islamic state, its religion and culture explain, and even justify, the behaviour of the three branches of the State. That led to a review of Islamic notions akin to the Western perception of the rule of law. The structure of the thesis is as follows: Chapter 1 offers a general introduction to the objective and design of the thesis. Chapter 2 gives a background to the unique geography, history, cultural features and economy of the Maldives. It also introduces the two principal taxes on which the analysis of application of the rule of law in the taxation field focuses. Chapter 3 draws on the literature and jurisprudence to discuss various interpretations of the rule of law. It identifies six main elements of the rule of law as a benchmark to assess the level of compliance with the rule of law in the Maldives generally and in the sphere of taxation legislation and administrative practice. Chapter 3 also examines principles analogous to the rule of law that can be found in Islamic shari’ah and arrives at some conclusions about the compatibility of the two. Chapter 4 surveys some key instances of disrespect for the rule of law at the Legislative, Executive and Judicial levels of governance generally in the Maldives, while Chapter 5 looks at conflicts with the rule of law in the same branches of the State with particular reference to tax law and practice. This is where the main analytical focus lies. Chapter 6 concludes with some comments about the state of the rule of law in the tax arena, in the light of the general state of the rule of law in the Maldives during the period under review. Chapter 6 also offers some recommendations on improvements in the way the rule of law could be applied in the Maldives if the country is to achieve its aspirations of a truly democratic Islamic state.

A Realistic Theory of Law (Book Review)

The European Law School (Network) opened its doors at the end of the 2007/2008 academic year. For the first time, three universities have come together to create a comprehensive European legal education. The initial project will be to create a program of study, with both national and international components. This joint venture is not simply to create another Master’s program but an understanding of Europe that emphasizes and promotes both unity and diversity. We develop this theme in sections 4 and 5 of this paper. At the same time the program endeavours to provide the essential features of a modern legal education (as set out in section 5), albeit, at the present time, for only a limited number of students.

The articles collected in the book present a view of legal education in Central and Eastern Europe, considering the relationship between democracy and the Political. In this perspective, legal education is a forum for this articulation and an area for a discursive search for solutions. On the one hand, democracy is a continuous object of research for the legal academia; legal theorists and constitutionalists debate the juridical foundations of modern constitutionalism, democracy and the rule of law. On the other hand, as university teachers, legal academics contribute to shaping future lawyer-citizens by instilling in them a certain vision of civic virtues and democratic values.

Two developments in legal studies over past generations are the development of a critical discourse and literature addressed to shortcomings of legal education, and the development of a rich, rewarding body of work in interdisciplinary legal studies, often referred to as law and society scholarship or socio-legal studies. To date, these two developments have been largely independent of one another, although scholarship in law and society or socio-legal studies has much potential to complement or reform legal education in many of the respects where it has been found to be problematic or lacking. A brief survey of many of the concerns which have been voiced about legal education, with significant attention to ‘internal’ critiques offered by legal scholars and educators themselves, is offered with the constructive goal of suggesting the relevance of social scientific scholarship and instruction for legal education, broadly conceived to include pre-law education, continuing legal education, dual degrees and paralegal studies. Important issues include the inevitably interdisciplinary nature of legal studies, issues of civics and public service, critical and reflective approaches to law, professionalism and ethics, specialization and multi-disciplinary practice, and skills training and legal practice more generally. Given the great potential for social science to contribute to legal education in many ways that are responsive to the internal critiques of legal education, it is well worth addressing difficult questions about how legal education could incorporate relevant social scientific scholarship and instruction.