When a German law student comes to Harvard Law School, it seems quite obvious that this is not only about a change of classroom. All apparent out-of-classroom differences set aside, Germany is a civil law country—and this in itself, one is inclined to think, engenders huge differences in law school experience. However, a maybe less prominent, but possibly more momentous difference is grounded in the different teaching methods and cultures law students experience in the classrooms on this and the other side of the pond. What are these differences? And is there a connection between what is taught and how it is taught?
In the following, I would like to suggest—based on my own experience—that differences in law school experience which I think do clearly exist are less due to the dichotomy between civil law and common law, but rather on a deliberate choice of teaching methods.
What law students are taught: Differences between common law and civil law
At first sight, the gap between what a common law and a civil law student are taught at law school is fairly apparent: In the U.S., where case law dominates legal thinking and argumentation, the focus is on the individual case and its right and just outcome. It is out of this individual case that you can tease out a more general rule which, even in its application to another individual case, remains closely linked to its original case. The “Application”-part of the IRAC-structured memo therefore is twofold: On the one hand, the rule remains embedded into its original context (by analogizing / disanalogizing the case), on the other, the remaining essence of the rule is applied to the facts of the present case. In Germany, in contrast, the rules emerging from the statutes lack this kind of case-relatedness. Cases might serve as examples or clarification, but at the outset and in the end of the day, the rule stands for itself.
But what does this entail for the actual work a law student has to do at law school? Is there a significant difference between what a German and an American law student do in their exams? In answering this question, I would like to focus on “memo-type” exams since they are most characteristic of the legal and argumentative thinking in both countries. And in doing so, I would say “no” three reasons. First, both have to learn and understand the structure and reasoning behind the rules. Even though case law seems less structured at the outset since every case only incidentally adds another tessera, the totality of case law and its rules follow an underlying structure and logical patterns which do not significantly differ from what the statutes provide for in civil law. Grasping this structure seems to be as difficult for a student in Germany as it possibly might be in the U.S. Second, the reasoning based on which legal issues are decided is oftentimes very similar. Judging and weighing what seems just and sound in a certain situation often is more a question of common sense than of specific legal rules notwithstanding that the actual solutions might account for different trade-offs. Finally, the technique of solving cases is almost identical. The German equivalent for “IRAC” ,“Subsumtion” , following Aristotle’s syllogism structure, basically consists of the same four steps: (1) issue, (2) definition of the rule, (3) subsumtion (application of the rule to the facts of the case), and (4) conclusion. It is only in the argumentative scheme that cases play a different role.
To sum up, the structural framework and the techniques in legal argumentation and thinking that law students are taught appear to have astonishingly great similarities in both legal systems.
How law students are taught: Differences between the U.S. and Germany
The way law is taught in the U.S. and in Germany differs much more significantly. The U.S., and best of all, Harvard Law School, is famous for its “Socratic method”. Although nowadays, the Socratic method is oftentimes not applied in its pure form, American law school classrooms still seem to be dominated by a teaching culture that derives its main characteristics from the Greek philosopher’s school: high and compulsory student participation, cold calling, confrontational questioning, and a question and discussion based approach to the law. German law school experience is in stark contrast to this. Notwithstanding the caveats of any generalization, German law classes are more “lecture style” with professors conveying the basic structures and principles in theory, illustrated by examples, and students asking questions mainly when an ambiguity remains to be clarified. It should be noted, though, that classroom reality has deviated from the classical one-sided “lecture” (Latin legere “to read,” i.e. where the professor merely reads his manuscript), and student participation has become much more common.
This being said, the question arises of whether there is a connection between common law / civil law and the way it is being taught. Does common law necessarily call for Socratic-style teaching methods? Could civil law be taught in the spirit of U.S. classrooms? As I have mentioned above, the convergence of common law and civil law is much greater than one might expect in terms of techniques and frameworks of legal thinking and argumentation, and the Aristotelian structure of argumentation is only one illustrative example. It is conceivable to teach common law based on a structural framework, using cases to illustrate the rules they gave birth to. Similarly, students certainly can learn the structure of the BGB (German Civil Code) in a more student-based teaching environment. This leads me to the conclusion that the choice of a certain teaching method is deliberate in the sense that it is not determined by the legal system’s adherence to civil law or common law, but made with the goal to convey certain skills to the students. This choice, it appears to me, is very formative for the students and thus marking for their legal thinking and the legal profession as a whole. Whereas U.S. style teaching encourages debating, speaking aloud in a group, independent thinking, and questioning of the underlying economic / strategic backgrounds of a case, the German teaching culture has the appeal of conciseness, effectiveness, and logical structure, educating law students in abstracting and logical argumentative thinking. In fact, it is an extremely interesting and rewarding experience to see how much comparative jurisprudence seems to be grounded on teaching culture.
Why it matters
Law school should convey knowledge about the law, skills in legal analysis, and prepare its students for their careers. There is no “perfect” teaching method since each method focuses on a certain set of skills. Yet it should be noted that in the end, all of the abovementioned skills are desirable for a law student. The technical and structural knowledge and the skills that law students should learn being cross-border applicable, teaching methods are interchangeable to a certain extent. Insofar as this is the case, both law school systems could benefit from looking beyond the pond. Experiencing the advantages of both systems can certainly be very enriching for legal education in general.
Marika Oery is an L.L.M. candidate.