Please note: The following post is the first in a series that will be published in English.
In this case, the post summarizes a presentation given by prof. Marcus Faro de Castro (Faculty of Law, Universidade de Brasília) at the the Global Legal Education Forum – Panel: ‘Globalization, Crisis and Legal Education’. Held at the Harvard Law School – Cambridge, MA, on March 23-25, 2012.
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Legal ideas, institutions and legal education: challenges posed by globalization
by Marcus Faro de Castro
1 - Introduction: The Rise of ‘Global Law’ Discourse
Some Brazilian jurists in the 1990s began writing about the emergence of they called “global law”. The main idea behind this notion was that an impersonal process of change was taking place internationally and was bringing many rapid and inevitable transformations across world. The argument was that these transformations affected the way jurists think about the law and legal institutions. Jurists should now recognize the need — it was argued — for the adoption of sweeping reforms driven by global economic competition. And this meant that local legal institutions and ideas about them had to be completely revised.
The result of this new legal discourse in Brazil has been the development of a whole new set of legal ideas which supported several innovations in legal institutions. First was a “discreet and silent revolution” in local antitrust law and policy. As described by Luis Fernando Schuartz (“A Desconstitucionalização do Direito de Defesa da Concorrência”, Revista do IBRAC, 2009, vol. 1, no. 1, p. 335),
“[t]he intensive use, in a direct or indirect manner (by means of the incorporation of propositions taken from manuals or from official documents of foreign authorities, especially North-American ones), of antitrust economics in the treatment of legal problems revolutionized competition law in [Brazil]. (…) This discreet and silent revolution operated in many levels (…), but it was undoubtedly at the level of [legal] methodology that it had the most radical impacts and the most [abundant] theoretical implications.”
Second was the introduction of the so-called “independent regulatory agencies” which incorporated the mission to treat most, if not all, regulatory issues in light of purely (micro)economic considerations. A third innovation was the development of a legal discourse which has tried to subordinate law in general to economic analysis (especially microeconomic analysis) — which included an effort to build up the credibility of Chicago-style economic analysis of law.
Given this general background, one might ask: How could the broader legal landscape in contemporary Brazil be characterized? What is the vocabulary that provides the chief technical means for Brazilian jurists to deal with legal issues in the beginning of the 21st century? A realistic answer to this question would indicate a two-fold character of contemporary Brazilian legal discourse: a discourse of “global law” and a discourse of what could be called “conventional law”.
2 – Reforms and the Crucial Gap in Current Legal Discourse
But here the problems of such recent developments become readily apparent. On the one hand, it is clear that what is called “global law” is at bottom the law of global business: it is not the law of social life in general (that would include interests encompassed by family relations, ways of imparting value to the environment, forms non-commercial property, moral feelings with respect to the care of children and the elderly; access to basic goods such as health, education etc., considered not as a commodities, but as human values, and so forth).
On the other hand, “conventional law” in Brazil quite strangely still relies on the use of legal categories inherited from 19th- and early 20th-century continental European law. The “law of general social life” in Brazil is steeped mainly in the civil law, the Civil Code. Significantly, for many decades — form the 1930s to the 1990s –this law had been accompanied by “developmentalist administrative law”, which supported economic planning practices in Brazil until the 1990s. It is chiefly this “older” public law which global law is meant to replace, but it really affects the law of social life as a whole. Even constitutional law, which became in a big way committed to proportionality balancing reflecting a global trend, has served as a complement to policy reform conducted under global business law.
As a result of the changes in legal ideas outlined above, several reforms have been implemented in Brazil since the 1990s. Formal constitutional restrictions which supported national capital or established state monopolies were lifted, thereby affecting the economic and legal treatment of activities in oil prospecting and production, natural gas distribution, transportation, civil aviation and telecommunications. From the same set of legal ideas were derived several discussions about reforms in many other fields of economic institutions, such as labor markets, pension funds, capital markets, the tax system and so on.
So what seems unmistakable about the general landscape of legal discourse and practice in Brazil today is this: there is a large gap in the set of legal ideas and in the vocabulary used by lawyers to deal with all sorts of legal issues. Legal discourse and practice are dominated by (i) a bunch of ideas and analytical strategies belonging to ‘global law’ (in reality, the law of global business); and (ii) another bunch of ideas and analytical strategies essentially inherited from 19th-centry and early 20th century legal imagination.
The upshot of all this is that in Brazilian law there are today very few intellectual means for jurists to elaborate a truly contemporary law of modes of social life – i.e., 21st-century modes of life whose meaning is primarily determined by nonmaterial (cultural, religious, aesthetic, moral) interests but are at the same time subject to multiple and complex – including transnational and international — interdependencies.
Furthermore, there is no connection between the “law of general social life” and “policy reform”. This means that policy reform is conducted (almost) exclusively by means of ideas provided by “global business law” to lawyers and reformers.
This absence of intellectual linkages between the “law of general social life” and policy reforms is a major concern for jurists who are reform-minded and who are impressed with the adverse impact of recent events upon individual or group preferences articulated on the basis of ideal interests. In recent U.S. history, I think this would translate as: “adverse impact of the kind that has generated angry protests from those who have begun naming themselves ‘the 99%’”.
3 – Challenges of Legal Education
So, given all that was said above, what seem to be the challenges posed by globalization to legal education in Brazil and in the world today? First, there is certainly the challenge of building a global law of modes of life (GLML) from the ground up. This GLML can not be uniform (it can not be a “single undertaking” as the current law of the World Trade Organization), nor can it be a single “system” of law (as much of International Law tends to be). In fact, GLML has to be plural and promote “institutional pluralism” and has to accommodate diverse conceptions of “law” and “rights”.
Second, there is the challenge of building an agency that will be capable of promoting and developing GLML. Clearly, such an agency does not fully exist currently but seems to be emerging from several recent transnational processes in legal education (see examples here, here and here). These processes may contribute to forge a new role of major law schools around the world, which are law schools with comparatively greater institutional, networking and academic strength. While engaged in several transnational collaborative efforts, such law schools are in a position to support the formation and academic enhancement of transnational academic networks dedicated to producing legal research and materials in all fields relevant to GLML.
Thus a combination of major law schools and transnational academic networks supported by them — involving, for example, the organization of transnationally coordinated seminars and/or workshops on comparative regulation of food and agricultural policy, environmental policy, human reproduction policy, tax systems and international tax cooperation, comparative antitrust law, global and comparative health policy, the law of climate change, legal dimensions of comparative corporate governance and comparative and global corporate accounting standards, comparative regulatory frameworks of financial markets, alternative intellectual property regimes and so forth — holds a promising role in the crafting of a future GLML.
4 – Legal Academic Networks (online transnational workshops, seminars etc)
Some quick remarks about the formation of academic networks may be useful. First, one should bear in mind that there are and can be a number of different kinds of networks – there is no single success formula. And there are many ways in which networks may interact among themselves. Second, building dense academic networks (for the purpose of developing and producing collaborative legal research) would of course require experimentation at different levels (network governance, technology use, pedagogical strategies, etc). Also, partnerships with globally oriented local law firms may provide different options for network design. Third, technology is available at low cost (email, blogs, voip, internet videos, etc.). Promoting more intense and day-to-day online interactions among students from different parts of the world would probably be a major part of a new wave of pedagogical experiments.
5 – Conclusion
With some (but not necessarily radical) institutional and pedagogical innovations, major “global” law schools could “throw their weight” behind transnational academic networks and, through them, nurture the growth of a thriving and plural law of modes of life, alongside global business law, in the 21st century.