From general legal history towards comparative legal traditions

Abstract

The so called Bologna process has incited a kind of cultural revolution in law schools curricula all over Europe. Positivistic and empirical approaches, practical specializations and utilitarian demands are given priority by the Bologna reforms. The process compresses the teaching of legal history into fewer courses, emphasizing professional and applied learning outcomes over the traditional liberal arts-centered model of legal education. Skills and practical knowledge are favored, sometimes at the expense of gaining a profound comprehension and intellectual understanding of the underlying principles of law and the social and historical dynamic through which they developed. I believe that seemingly impractical topics like legal history actually strengthen the applied portion of the curriculum. In reality, nothing is as practical, particularly in a time of rapid social and technological change, as a clear appreciation of the historical, moral and ethical principles that form the basis of the modern legal order. Modernizing legal pedagogy must include, inter alia, major adjustments in the subjects taught. Consequently, at the University of Belgrade Law Faculty, the basic course in legal history that was inherited from the socialist curricula, General History of State and Law, was first updated into General Legal History, and, through a second step, into Comparative Legal Traditions. This evolution is not merely terminological. The modernized courses are more pragmatic (bringing Serbian legal education into conformity with similar classes at universities worldwide), theoretical (emphasizing the inseparable linkage between legal history and comparative law, as stressed by Kaser, Watson, Glenn, Zimmerman and many others) and pedagogical (offering more applied knowledge to students). They conceptualize the subject differently in at least two ways: firstly, the focus is transferred from the abstract, universalist concept of general (legal) history (Weltgeschichte) to the more neutral, theoretically less demanding comparative approach. Secondly, the change encompasses a partial shift from history (implying the processes have been completed) to tradition (pointing to living traces of previous legal development, defined by Glenn as the presence of the past). The subject is now more oriented towards a better understanding of the roots of current legal doctrine and of the likely shape of future legal changes. The new approach favors understanding of law in the context of legal transplants, diffusion and harmonization of law, of the interaction and internal dynamics of legal systems, as well as an awareness that the era of autonomous and isolated national legal systems is ending. The second change - in teaching methods, has shifted from formal lectures to interactive learning through Clinical Legal History. Students are engaged by playing roles in historical court cases. Court simulations of cases from ancient Athens or Rome enable students to develop legal reasoning and imagination, train their rhetorical skills, develop their creative understanding of legal terminology, learn about procedural maneuvers, build up argumentation, become familiar with the legal decision making processes and gain an appreciation that legal principles, institutions, rules and judiciary experience do not apply only to ancient courtrooms. Students gain a deeper understanding of how previous societies dealt with legal dilemmas that parallel contemporary legal problems. Acting as an Athenian jury, for example, teaches students both the values and the dangers inherent in a more democratic judicial system. This broad understanding of legal traditions may build a prospective barrier against the hurricane of positivist and pragmatic challenges that threaten to turn lawyers into mere technical specialists.