Examining the Law Syllabus: The Core

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

4. Retrospect and Today's Questions

NEVILLE BROWN


Preface

PREVIOUS seminars in this SPTL series 'Examining the Law Syllabus' had dealt with Property, Constitutional and Administrative law, Criminal Law, Contract and Tort, all 'core' subjects at present. My assumption, therefore, when asked to speak in this sixth seminar devoted to European Law was that I should be talking, perhaps exclusively, to fellow law teachers, faced with the problem how to fit into an undergraduate law syllabus, already crowded with the core subjects, an appropriate dosage of European Law, and I also assumed that by that term was meant primarily 'the Law of the European Communities' (or, as we should now be saying post-Maastricht, 'of the European Community'). I found however that my audience on 25th May 1991 was both larger and more diverse in their background than I had foreseen. Those present who were practitioners rather than pedagogues were not, I hope, aggrieved that I stuck to my last (and that of the SPTL) which is legal education, though it is, of course, through legal education that the future practitioners is shaped.


1. Retrospect

In the 1960s--some 30 years ago--British law teachers were already beginning to address the problem: how to teach Community Law within the framework of an undergraduate law course? Despite de Gaulle's veto on British entry, we knew (or at least the enlightened ones of us knew) it was only a matter of time before the United Kingdom would be accepted into the Community. By good chance or foresight, a source of help and advice was to hand. This was the established series of "'London-Leiden Meetings'" between British and Dutch law teachers held under the joint auspices of the British Institute of International and Comparative Law and the Europa Institute of Leiden University. These were annual meetings, largely inspired by that great European lawyer, the late John Mitchell of Edinburgh University, Kenneth Simmonds of London and (at the Leiden end) Henry Schermers and other Dutch law teachers who had pioneered Community Law, the European Economic Community being seen in the Netherlands as a natural progression from the Benelux model.

In the late 1960s, as accession loomed, there was a special meeting of the London-Leiden group, held in The Hague. Our British team was headed by Mitchell. The Dutch presented us with their experience following the Treaty of Rome. Post-1957, Dutch law teachers had been split between two schools, which I will call the Integrationists and the Separatists.

The Integrationists , then as now, wished to see Community Law teaching grafted onto, and integrated with, substantive law subjects, so that (to take one of the simpler examples) EC Directives on Company matters would be absorbed into the course on Dutch (or English) Company Law, or, in relation to the Community Institutions, the course on national (Dutch or British) Constitutional Law should cover the Community Institutions and the inter-relationship of the Community Legal Order with the national legal order.

The Separatists , on the other hand, argued for a separate teaching of Community Law in a distinct course, at least so far as concerns the Institutions and the fundamental principles of Community Law.

The predominant Dutch advice to us, back at that meeting in the 1960s, was to follow the Separatist School, once British law schools came to tackle reshaping our syllabuses post-accession. And this was the way we went at Birmingham from 1972: I was Dean at the time and Deans in those days could get their own way. We even went so far, in October 1972, to make Community Law an obligatory course in the Birmingham LL.B., as it remains to this day.


2. Questions for Today

Now, some 20 years on, two questions need to be addressed. First, did we make the right decision in 1972? Secondly, does that decision still hold good for 1992? The answer to each question may not be the same.

In reply to the first question, I am convinced that it was right in those foundation years after 1972 to require all law undergraduates to have an introduction, in some detail, to Community Law seen as a legal system (or 'order') distinct from, but complementary to, their own national law. Hence the need for an obligatory course--no wimpish truck with options. It was a happy coincidence (though sad for the Romanists) that, by the end of the 1960s Roman Law had ceased to be a compulsory subject for the English Bar, which meant the law syllabus was freed from the necessity to include a course in Roman

-27-

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