Comparative Law and Multicultural Legal Classes: Challenge or Opportunity?

Our thoughts are products of our own culture, tradition, and ideal of order, so their understanding and development can only be based upon them. However, cultures, traditions and ideals vary from time to time and from people to people, as each of them has been created and developed to respond to challenges under their own conditions given. Consequently, they are both independent of each other in their genesis and also incommensurable in their historical set; they are not even classifiable but only taxonomisable in a strict sense. Each of us lives and interprets his own world; when comparing, we attempt at putting all of them in a common hat, while none of us can transcend the symbolic paradox of “I interpret your culture through my culture”. A way out, if at all, can only result from their individual parallel characterisation, when we build up some kind of abstract philosophical universality from the ideals of order concerned. In the context of the Self, on the one hand, and of You, on the other, we are expected not only to explain the Other, but also to recognise it by its own right. Accordingly, legal comparison aims at getting knowledge not only of ‘law in books’ and ‘law in action’ but about what is meant by law when it works in the mind. All in all, comparison comprises, in addition to the mere act of taking cognisance, also the acceptance of this Other by its own right, in which no entity involved is simply reduced to anything purely factual (“what is the law?”), but the actuality of the entire normative process leading to a legal statement (“how do we think in law?”) is considered. Getting to know any foreign law begins with the grouping of laws and, expressed in terms of belonging to legal families, by combining those which are similar and contrasting those which are dissimilar. Their interaction and mixing are part of their life, but establishing their occurrence cannot substitute to the didactic necessity and explanatory power of analysing them in term of legal families as well. When describing them, mere contrast or parallelism is to be completed by showing up the specific field and way of ingenuity each of them may have in comparison to others, as their individual contribution to the cultural production of the humanity.

In this chapter, “multicultural class” is defined as “a law class consisting of students with multicultural backgrounds”. Applying this definition, I will report on one facet of the current teaching environment of comparative law in Japan, referring to the concrete example of Hitotsubashi University. Looking back at the history of modern Japanese law, we can see that Chinese, English, French, German, and American elements, besides indigenous Japanese ones, have all melted together. Japanese law is a complicated “amalgam” of Western legal cultures, including both civil law and common law cultures, and East Asian legal cultures. When we observe Japanese legal education in relation to multicultural classes, the undergraduate programmes would be the most important from a qualitative perspective. Multicultural law classes in Japan tend to consist of students from Japan, China, Taiwan, and South Korea. In multicultural classes of comparative law in Japan, East Asian students often notice that their laws cannot be classified properly by Western theories—even the latest ones—and come to realize their own “subjectivity” as well as the “relativity” of the concept of legal family. Education in multicultural classes can be regarded more as an “opportunity” than a “challenge” for comparative law.

The present article is the Brazilian Report submited to the 2018 Fukuoka international congress on comparative law. This report works, in a first moment, with notions of comparative law, especially involving different cultural traditions. Then, from a bibliographical point of view, the Brazilian legal system is analyzed, as well as concrete cases related to different national experiences, which allows the dialogue between distinct legal orders. To this end, the paper starts from the “common language” of human rights, demonstrating, for example, the possibility of dialoguing between two national or international courts (horizontal approach) through borrowings (vertical approach). In that way, the main conclusion is that the importation of legal models helps to sediment the need for this dialogue to act as a two-way procedure and not just as a blind imposition of an exogenous model. In a second part, the current paradigm on legal education is outlined to examine how it may be able—or not—to deal with multicultural classes. As a result, it is found that in Brazil, since the discipline of comparative law is not traditionally seen as an object of reflection, it is imperative to rethink the role of legal education in order to create a multicultural environment, capable of reproducing the complexity of todayʼs world in classroom. To corroborate this position, the adoption of affirmative policies reserved for vulnerable groups by Brazilian public universities is addressed, which has helped to build a plural legal learning environment.

Teaching comparative law classes may be challenging when presenting legal systems others than one’s own to students who may themselves come from the legal tradition one is trying to illustrate to students. The difficulty has become increasingly clear when we have to address students belonging to cultures where the distinction between law and religion is not perceived as meaningful, or where the “rule of law” takes shades of meaning rather different from the conception we have developed from our Western experience. We are often unconsciously transmitting our underlying persuasions, we do not have a complete command of the foreign sources of law (language barriers may affect our knowledge), we are sometimes addressing sensitive issues (women equality, discrimination, autonomy of the judiciary and so on). How do we cope with these problems? Which suggestions are offered by experts on teaching to diverse classes?

This chapter studies the impact of the recent multicultural approach to comparative legal studies on comparative law teaching, with a focus on British debates and literature. I will argue that the multicultural turn of (comparative) legal teaching, reflected for example in a greater diversity of teaching techniques, a greater emphasis on minority issues and law &… disciplines, responds to a multiplicity of motivations. Pedagogically, it is a response to the increasingly diverse backgrounds of students and their differing intellectual starting-points. Pragmatically, it is a means to boost students’ employability and intellectual versality in a job market that now values “cultural awareness skills”. Finally, conceptually, it is a tool designed to unravel the pluralistic nature of law. From these diverse drivers to the multicultural turn in (comparative) legal teaching, it is possible to identify similarities with other recent trends of globalisation and internationalisation of legal education. However, this article will submit that differences remain. Having analysed these differences, I will go on to argue and reveal that in them lie the core features of a multicultural approach to legal teaching and its intrinsic connections to comparative law, as the multicultural classroom itself becomes a comparative law site.

This chapter is based on experience of teaching comparative law in the multicultural environment of classrooms in Singapore. Reflecting on this experience, the chapter explores the mission(s) of comparative law drawing on jurisprudential perspectives. From this, the chapter develops and argument about what comparative law should and should not be called upon to do in the classroom, and what a teacher of comparative law in multicultural legal classes should aim to deliver. In sum, the argument is that a jurisprudentially informed comparative legal studies approach should be pursued. If such an approach is adopted, then the teaching of comparative law in multicultural legal classes, while challenging, presents a significant opportunity for enhanced understanding.

This report addresses the question of multiculturalism in law teaching from two perspectives: the teaching of foreign law to Romanian students and the teaching of national law to foreign students. As regards the first matter, this report concludes that comparative law teaching is insufficiently developed in Romanian legal education as a tool of critical thinking and puts forth a normative vision of comparative law’s role in the legal curriculum. In respect of the second aspect, one must note that Romania is a culturally homogenous state where problems related to the teaching of law to multicultural classes arise mostly because of the so-called ‘internalization at home’ that is currently taking place in general in higher education. While systematic empirical data is lacking, evidence points to language barriers as the most significant obstacle in the efficient teaching of law to culturally diverse students in Romania.

This chapter takes the multiculturalization of the legal auditoria as a starting point, and starts out with a historical overview from the perspective of the University of Copenhagen. Due to lack of studies in the field, it is to a large degree based on the personal experience of the author in teaching multicultural classes (international and Erasmus students as well as immigrant Muslim students in Denmark and elsewhere) and comparing ‘extraordinary places’ such as Africa, Greenland, and China. At least at the Faculty of Law of the University of Copenhagen (UCPH), internationalization and globalization may have led to a decreased interest in comparative law among ordinary students, while it has at the same time brought new differences into the classroom. Comparative law has been linked to legal culture in (parts of) the Nordic area, and the contextual approach and a need for a more flexible methodology has been emphasized. The growth of students with an immigrant background and an experience with Muslim legal culture(s) is clearly felt at UCPH in the twenty-first century, and it might give rise to new legal and comparative questions and demands, which are at present unmet, as well as to sensitivities, which have been felt in politics and (symbolic) laws. The article suggests that a ‘pop up’ approach to concrete comparative issues, fields and topics may be one amongst other ways to secure future interest in comparative law amongst students.

Law is indeed a multicultural subject. It has been developed by multiple encounters of heterogenous rulers, lawyers, scholars and students. This phenomenon can be exemplified by three lessons from legal history: the emergence of a common Roman law throughout medieval Europe, the codification of German civil law in nineteenth century and the European harmonization of law in our days. The missing link between these eras is multicultural legal education.

The central idea of this chapter is that a multicultural setting can effectively contribute to students’ learning. Law students need to be prepared for their future career in a globalized world. Therefore, their law studies should include dealing with culturally sensitive issues for which comparative law courses and comparative approach in teaching offer a number of opportunities. Based on the academic research and personal teaching experiences, the author describes the most common challenges in teaching diverse groups. The author brings several comparative law related examples of different types of exercises which can effectively enhance students’ learning in multicultural classes.