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Trans-Systemic Teaching: The McGill Programme

Prof. William Tetley

October 11, 2005

I. Introduction: The McGill Trans-Systemic Teaching Programme

The McGill trans-systemic teaching programme is revolutionary for a law faculty as a whole, but trans-systemic teaching of a single subject has been done for years, if not centuries. The teaching of comparative law is probably the clearest example while trans-systemic teaching, itself, means a belief in comparative law.

II. “Trans-systemic” does not necessarily mean teaching civil law as compared to common law

There are many trans-systemic teaching permutations and combinations, including, for example, civil law and Sharia law, or common law and the law of Orthodox Judaism. See the Globe and Mail, Friday September 9, 2005 (attached.)

III. Trans –systemic teaching is not new in upper law classes

1) For years, many of us have been teaching trans-systemically without realizing we are. No doubt you have too. We are just like the famed character who did not know he was speaking in prose. (Molière “Le Bourgeois Gentilhomme” 1671)

2) For example, since 1977, I have taught maritime law, insurance law and consumer law, trans-systemically at McGill Law Faculty. Thus, when teaching consumer law or insurance law in Canada, one must/should teach the civil law of Quebec and the common law of the nine other provinces. This is a direct result of living in a “Mixed Jurisdiction”. More later about mixed jurisdictions.

IV. Systemic teaching of a complete system of law - e.g. maritime law

1) Trans-systemic teaching can also be done in single subject. e.g., maritime law, which is itself trans-systemic. Maritime law is civilian in origin (see Doctors’ Commons and the origins of maritime law in America) and it has also been subject to great inroads by the common law in the last two centuries.

2) Maritime law is a whole slice of law, a complete system of law, not a branch, like tax or human rights. Maritime law has its own law of tort/delict (personal injury and ship collisions), of sale contracts (re the sale of ships), of service (towage), of lease and hire (chartering), of carriage of goods by sea (bills of lading), of insurance (marine insurance), of agency (ship chandlers), of pledge (bottomry and respondentia), of hire (of masters and seamen), of compensation for sickness and personal injury (maintenance and cure), of risk distribution (general average), and of security on property (ship mortgages and maritime liens). (See Tetley, “Nationalism in a Mixed Jurisdiction and the Importance of Language, (South Africa, Israel, Quebec/Canada)” (2003) 78 Tul. L. Rev. 175-218 at p. 210; on-line at: http://upload.mcgill.ca/maritimelaw/nationalism.pdf at p. 27). Apparently it was also the first recorded law of partnerships, companies, insurance and international courts (i.e. with international jurisdiction). It also has its own public law and public international law (e.g. law of the sea), and its own environmental law (re marine pollution).

See: a) Tetley, “The General Maritime Law – The Lex Maritima (with a Brief Reference to the Ius Commune in Arbitration Law and the Conflict of Laws) (1994) 20 Syracuse J. Int’l L. & Comm. 105-145, especially at pp. 121-128 (reprinted 1996 ETL 469-506); on-line at: http://upload.mcgill.ca/maritimelaw/genmarlaw.pdf

b) Tetley, “A Definition of Canadian Maritime Law” (1996) 30 U.B.C. L. Rev. 137-164, especially at pp. 153-154; on-line at: http://upload.mcgill.ca/maritimelaw/defcanmarlaw.pdf

c) Tetley, Maritime Liens and Claims, 2 Ed., Les Éditions Yvon Blais, Inc., Montreal, 1998 at pp. 36-41.

d) Tetley, “Maritime Law as a Mixed Legal System (with Particular Reference to the Distinctive Nature of American Maritime Law Which Benefits from Both its Civil and Common Law Heritages)” (1999) 23 Tul. Mar. L.J. 317-350; on-line at: http://www.mcgill.ca/maritimelaw/comparative/marlawmix/.

V. Teaching civil/common law tort and contract in first year law school is intriguing for the students and for the professors

Students and professors must, however, be careful to keep the principles and rules, concepts and terminology, of each system separate in their minds and understanding. This is the great challenge.

VI. Not every professor has adapted to trans-systemic teaching

Some professors at McGill are so very concerned with the purity of either the civil law or the common law, that they have refused to teach trans-systemically. They may believe in comparative law, but not the teaching of law comparatively.

VII. Is comparative law necessary or useful?

There is even a school of law teaching, which apparently holds that comparative law is not useful and may even be detrimental to understanding law. It is my strong belief, however, that the study of how two systems of law or two jurisdictions present their rules on a single subject such as tort/delict or contract or lease and hire etc. is useful in properly understanding the law under a single system. It was Saint Beuve who said one could not have a genuine faith or belief in one’s God unless one had doubted and similarly it is very difficult to speak one language properly unless one speaks another as well.

VIII. Comparison of law over time

Comparative law and trans-systemic teaching may be the comparison of a law over time rather than the comparison of two systems or jurisdictions of law. In other words comparison of law and trans-systemic teaching of law may be a study of a how a law has evolved over time as the legal system or jurisdiction has changed.

IX. Trans-Systemic Teaching Is Easiest and Most Appreciated in Mixed Jurisdictions

Fortunately, because of international trade, international agreements (e.g. NAFTA), private international law, wars, the internet, legal harmonization within the European Union, pluralism in Western societies, the resurgence of Islam, the emergence of China, and other upsets and major changes, we are all becoming trans-systemic, including even the jurists of those great bastions of single system purity – France and the U.K. and even the U.S.

X. Trans-systemic Teaching of Public Law

Public law can and is taught trans-systemically. Examples include the teaching of NAFTA and the teaching of the law of the sea.

XI. Mixed Jurisdictions

1) Quebec, Louisiana, Scotland, South Africa

(See Tetley, “Mixed Jurisdictions: common law vs. civil law (codified and uncodified)” (2000) 60 La. L. Rev. 677-738; on-line at: http://upload.mcgill.ca/maritimelaw/mixedjur.pdf).

2) Israel, Egypt

(See Tetley, “Nationalism in a Mixed Jurisdiction and the Importance of Language (South Africa, Israel, Quebec/Canada)” (2003) 78 Tul. L. Rev. 175-218; on-line at: http://upload.mcgill.ca/maritimelaw/nationalism.pdf).

3) European Union

4) etc.

XII. The Characteristics Necessary For a Sustainable Mixed Jurisdiction

1) Two languages

2) Two parliaments or legislatures

3) Two court systems

4) Two sets of laws

5) Two universities or centres of learning, each specializing in and promoting one legal system or tradition.

(See Tetley, “Nationalism in a Mixed Jurisdiction and the Importance of Language (South Africa, Israel, Quebec/Canada)” (2003) 78 Tul. L. Rev. 175-218; on-line at: http://upload.mcgill.ca/maritimelaw/nationalism.pdf

XIII. Social, Legal, Cultural and Political Considerations Which Affect Mixed Jurisdictions

When one compares the law of one jurisdiction with another, it is essential to appreciate that social, legal, cultural and political forces are also affecting the laws of those jurisdictions although for example they may both be common law jurisdictions. Thus for example, because the United States has a system of corrective justice as opposed to the distributive justice of the U.K., New Zealand, Australia or Canada, the common law of the U.S. is in many ways very different from the common law of the U.K., New Zealand, Australia or Canada. See Tetley “A Canadian Looks at American Conflict of Law Theory and Practice, Especially in the Light of the American Legal and Social Systems (Corrective vs. Distributive Justice)” (1999) 38 Columbia Journal of Transnational Law 299- 373).

(See also: http://upload.mcgill.ca/maritimelaw/canlook.pdf).

XIV. Private Internaional Law (Conflicts of Law)

I have found that it is easiest to teach trans-systemically when teaching “private international law”, (better known in the U. S as “conflicts of law”.) Similarly writing trans-systemically is most rewarding and natural, when one writes and comments on conflicts (PIL).

XV. Conclusions

Trans-sytemic teaching of law can be carried out in first year law in basic law courses, such as tort/delict and contract, as well as in survey courses, such as history of law, philosophy of law and what we call “legal foundations”. Other subjects, such as insurance law and consumer law, can also be taught trans-systemically, while some subjects like maritime law are whole systems of law in themselves, very readily adapted to trans-systemic teaching.

Law schools in mixed jurisdictions are very adaptable to trans-systemic teaching, while conflict of laws seems to be the subject par excellence for teaching trans-systemically.

Graduate law students who have a solid foundation in their own legal systems can contribute significantly to trans-systemic dialogue and teaching in universities and specialized institutes where another legal system prevails.

The trans-systemic teaching of law is, in effect, the modern embodiment of traditional comparative law teaching, adapted purposefully to the demands of an increasingly international world.

N.B. Useful Sources and References

A. Mixed Jurisdictions - Useful Sources and References

1) Tetley, “Maritime Law as a Mixed Legal System (with Particular Reference to the Distinctive Nature of American Maritime Law, Which Benefits from Both its Civil and Common Law Heritages)” (1999) 23 Tul. Mar. L.J. 317-350; on-line at: http://www.mcgill.ca/maritimelaw/comparative/marlawmix/

2) Tetley, “Mixed Jurisdictions: common law vs. civil law (codified and uncodified)” (2000) 60 La. L. Rev. 677-738; on-line at: http://upload.mcgill.ca/maritimelaw/mixedjur.pdf

3) Tetley, “Nationalism in a Mixed Jurisdiction and the Importance of Language. (South Africa, Israel, Quebec/Canada)” (2003) 78 Tul. L. Rev. 175-218; on-line at: http://upload.mcgill.ca/maritimelaw/nationalism.pdf

4) Susan Drummond “Not Just Muslim Women Are Exploited By ‘Religious’ Law”, Toronto, Globe and Mail September 9, 2005.

B. Maritime Law – Useful Sources and References

1) Tetley, “The General Maritime Law – The Lex Maritima (with a Brief Reference to the Ius Commune in Arbitration Law and the Conflict of Laws) (1994) 20 Syracuse J. Int’l L. & Comm. 105-145, reprinted 1996 ETL 469-506; on-line at: http://upload.mcgill.ca/maritimelaw/genmarlaw.pdf

2) Tetley, “A Definition of Canadian Maritime Law” (1996) 30 U.B.C. L. Rev. 137-164; on-line at: http://upload.mcgill.ca/maritimelaw/defcanmarlaw.pdf

C. Social and Political Considerations

Tetley “A Canadian Looks at American Conflict of Law Theory and Practice, Especially in the Light of the American Legal and Social Systems (Corrective vs. Distributive Justice) (1999) 38 Columbia Journal of Transnational Law 299- 373). See also http://upload.mcgill.ca/maritimelaw.canlook.pdf

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