Examining the Law Syllabus: The Core

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

2. Integration, Separation and Comparison
DERRICK WYATT
1. Introduction
WITH the progressive development of the single market over the last thirty-five years the law of the European Economic Community has developed apace. The European law of the EEC Treaty was never a law solely nor even predominantly concerned with the transit of goods, customs nomenclature, and tariffs. From the start it was a law which sought to achieve its larger economic objectives through the vesting of rights in individuals and companies to earn a living or carry on business irrespective of their nationality or their place of residence in the Member States. The Treaty establishes a constitutional system based on the rule of law, provides a framework of social and environmental law for the peoples of Europe, and looks to the elimination of the barriers which divide Europe through the enactment of legislation by the Community institutions and the parliaments of Member States, and through the interpretation and application of that legislation by both the Community Courts and the courts of the Member States. It is small wonder that European law occupies an increasingly important place in the law school curriculum. And it was particularly appropriate that the 1992 SPTL Conference in Oxford had as its theme 'The European Law School'. What is the appropriate way to address European law in the European law schools of the United Kingdom? It is to that question which I now turn.
2. Integration, Special Courses, and a Comparativist Approach
I should like to address my remarks to questions of integration, special courses, and the development of a comparativist approach in areas where EC and English law overlap.
3. Integration
The debate about integrating Community law or teaching a special course has moved on over the years. Integration seems all but inevitable in a number of fields, in particular:
--constitutional law (which at least requires treatment of sovereignty/supremacy of community law);
--employment law (as regards in particular sex discrimination, and the acquired rights directive);
--tort (as regards the product liability directive);
--company law (as regards the company law directives etc);
--conflict of laws (as regards the Brussels and Rome conventions).

The developing case law of the Court of Justice and the English and Scottish courts ( Litster v. Forth Dry Dock and Engineering Co. Ltd. [ 1989] 1 All ER 1134 was an appeal from the Court of Session) on the interpretation of national rules implementing directives has provided an overdue spur to the study of directives, and the mischievous decision of the Sixth Chamber in Marleasing Case C-106/89 Marleasing v. La Comercial [ 1990] ECR I--4235 can only keep directives in the forefront of attention. A few Court of Justice decisions on the product liability directive would serve well to heighten awareness, but it is early days yet. This spontaneous integration is inevitable and will no doubt continue.


4. A Special Course

If integration is to some extent inevitable, a special course on Community law is also necessary. This is because Community law, like any other legal system, has a set of conceptual assumptions which run like geological strata through different types of subject matter, both substantive and procedural, be it institutional law, social law, or economic law. Acquiring a working understanding of these assumptions requires systematic study. A graduate in English law has always aspired to at least an elementary sense of direction within his legal system. That sense of direction should to-day extend to the Community system, incorporated as it is into our own legal system. From a practical point of view, it is generally unsatisfactory to approach Community law on the basis that you can learn all you need to know about a particular bit of it without learning anything at all about the rest of it. Just as it is unsatisfactory to approach tax law without having regard to trusts, property or contract. It is one of the less satisfactory features of our system of professional qualification that it is possible to qualify as a barrister or solicitor without any real knowledge of substantive Community law taught as such.

-21-

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