Examining the Law Syllabus: The Core

By P. B. H. Birks; Society of Public Teachers of Law (London, England) | Go to book overview

3. Errors and New Directions

E. M. FREEMAN

MY initial thoughts on the teaching of EC Law in the undergraduate syllabus could be categorized as essentially negative. 'How not to teach EC Law' seemed a more appropriate title, as many courses, deeply rooted in the 1970s, have changed little over the last fifteen years and consist of a hotch-potch of EC constitutional, administrative and substantive law. Such courses are usually third year options, as in Cambridge, and the students have generally had little contact with EC Law in their first two years. I have found that this type of course sometimes arouses feelings of dissatisfaction, or even antagonism, amongst the best students, as the content is heavy and the case-law ever more burdensome.

The defence of such courses often takes the form of an assertion that this is what the students want, and that, whether they want it or not, it gives them a sound basis for practice. Leaving aside the question of whether undergraduate courses ought to be providing 'a sound basis for practice', it cannot be a total justification that courses provide exactly what the students want, as they are mostly not in a position to make any informed choice. The real explanation is that such courses were devised in the immediate aftermath of the UK accession in 1972, and have not changed very much since then. In 1972, EC Law was much more manageable as single undergraduate subject, but with the huge growth in the case-law, and in the areas of coverage, some reform is now clearly necessary in those courses which still adhere to this model.

Other subjects, such as Labour Law, Company Law and Conflict of Laws, have inevitably developed their treatment of EC Law. This has been done more successfully in some areas than in others, where occasionally the very nature of new developments has been disguised. For example, it is sometimes not sufficiently explained that changes in the law are based on EC Directives, and there is little understanding of issues of direct effect, supremacy, references under Article 177 etc.

There appear to be a number of alternative solutions to the problems posed by the teaching of EC Law. These are not just problems of overload of the EC Law course.

There is also a growing body of opinion that students need to be exposed to EC Law at a much earlier stage of their student careers. Some universities have already tackled the problem and now include aspects of EC Law in the first year course, or, failing that, certainly in the second year. Solutions vary a good deal. I would like to suggest four basic models, but there are clearly many other variants.


Model One: Two Courses

Under this model, the Constitutional and Administrative Law of the EC is taught in a separate course, together with general principles of EC Law, the jurisdiction of the European Courts, and sometimes the External Relations of the EC, or treaty-making in particular. Such courses are typically taught in the second year, quite separate from the Constitutional Law of the UK. A third year course on the substantive law of the EC would usually follow under this model. Various versions of this method of teaching EC Law have been adopted.

The great advantage of this approach is that it provides a better opportunity in the advanced course for in-depth study of areas of substance, whilst at the same time providing the second year student with the basic tools of EC Law in a general institutional course. The disadvantage of this model is the artificial division of Constitutional Law into its UK and EC components, a division which is unworkable in an area such as supremacy of EC Law and parliamentary sovereignty, as the subject has to be covered in both courses. A better version of this model is perhaps to combine a full treatment of the Constitutional and Administrative Law of the EC with courses in UK Constitutional and Administrative Law, if necessary hiving off some subject from these latter courses to make room for EC Law.


Model Two: Competition Law Taught Separately

In the substantive law course of Model One, and indeed in the single subject approach from which we are trying to escape, EC Competition Law is taught as an important component of the course. The difficulty of including it in a general EC Law course is without doubt its huge ambit. An explanation of even its basic principles can take well over half a term, and full coverage cannot be achieved in anything other than a course on Competition Law taught separately. Therefore, under this method of teaching EC Law, Competition Law is hived off from the general EC Law course and taught in a self-contained course devoted entirely to competition matters. In this way,

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