Globalization, The New Transnational Legal Studies, and China’s Future in an Interdependent World
Talk to Students at Beijing Foreign Studies University
September 6, 2007
It is wonderful to be with you today.
Last week, the Committee on Scholarly Degrees of the State Council of the People’s Republic of China took a bold new step. They announced that China is going to create a special new kind of legal education for the nation, and for the world. It is my privilege to be able to speak about it this evening, and you, the students of Beijing Foreign Studies University, are the first audience to whom I will describe it.
Before I speak about this new development, however, I would like to provide some context. This event did not simply happen on its own. It is the product of larger forces of globalization. These forces have changed the way people live, everywhere. They have made the people of the world more interdependent. And that interdependence has changed law everywhere. They have created a new, transnational law. And this new program will allow China to assume a position of leadership in the field of transnational law.
So let me start with globalization. Globalization results from many factors. It results from travel. It results from communications technology. But more than anything else, globalization results from trade.
Trade – world trade – causes the nations of the world to be inter-dependent. And being inter-dependent means that they are more vulnerable.
Early in the nineteenth century, the economist David Ricardo wrote about how, when countries allow their citizens to trade with one another, the principle of comparative advantage means that the overall well-being of individuals in both countries will increase. Yet that same principle also means that free trade will lead each country’s economy to become more specialized.
If the goods that are being traded are perceived as luxuries, like beer or television sets, then the case for free trade is easy. But politicians and nations have often hesitated when it comes to goods that seem essential to their sovereignty, like food or energy. If specialization will lead a country to produce less of a good that seems essential, then that country will become dependent on the continuation of friendly trading relations with the other country. And if it would take a long time to regenerate the capacity to produce more of the good in question, the country is both dependent and vulnerable.
It is not easy to choose to become vulnerable in this way. Of course, some countries don’t have any choice: their limited endowments of natural resources mean that self-sufficiency is not even an option. But for countries like the United States and China, a certain degree of self sufficiency has been an option. So each has, from time to time, adopted policies that try to preserve self sufficiency with respect to certain goods. Such policies disrupt trade in those goods, ensuring that they will be produced less efficiently.
And here is my first point. One of the most striking features of the past 75 years is that, over and over again, countries have backed away from such policies. They have decided that maintaining self sufficiency would impose too big a penalty on their citizens. They have chosen free trade. And, by doing so, they have chosen interdependence and vulnerability.
The technology-fueled emergence of a global market economy, and the associated appearance of some critical institutional structures like the WTO, has accelerated the process of increasing global economic interdependence.
And we are becoming more interdependent in other ways as well. More and more, the dangers we face are dangers that do not respect national borders. Let me mention just a few examples. Infectious diseases that emerge in one region quickly circle the globe. The risks of ozone depletion and global warming are not confined to a few countries. When capital markets in one part of the world – such as the so-called subprime mortgage market – malfunction, the consequences are felt everywhere, thanks to global trade in so-called financial derivatives. We all need to be concerned with how humanity will meet its energy needs when fossil fuel stocks are inadequate to meet demand. No nation is immune to the dangers posed by heavily armed political extremists.
This brings me to my second point. If global interdependence is increasing, what does that mean for law, and for the study of law?
To promote healthy interdependence, we need a core infrastructure of laws, customs, and institutions that will permit us to integrate our complementary strengths into a harmonious whole. This is the essential infrastructure for healthy interdependence.
Unfortunately, worldwide interdependence has arrived faster than we have able to build that infrastructure. Many different nations and groups of nations have developed their own institutions, laws, and customs that respond to market failures. But their different approaches do not fit well together. We need to develop a way to make them fit. And that project – the project of harmonizing the legal systems of different nations and creating an effective structure for worldwide interdependence – will be the primary responsibility of your generation.
And it will not be easy. There are many different appropriate ways to respond to the risks of monopoly, information inequality, agency problems, moral hazard, adverse selection, and externalities. There is no one perfect set of competition laws, worker protection laws, consumer protection laws, intellectual property laws, or environmental laws.
But as the costs of global trade to individuals fall, and as it becomes easier and cheaper to move investment capital around the world, it becomes more important to at least harmonize these multiple legal regimes across national borders. Otherwise many potentially beneficial trades will not take place. Even worse, free trade might amplify the damage associated with certain kinds of market failure.
The people with the most immediate responsibility for promoting this harmonization are the world’s lawyers. Globalization has changed the work that they must do.
A complete legal education today is therefore very different from a complete legal education when my father went to law school in the 1940’s. My father was taught that he was affected by local law, the laws of his state, the laws of his country, and the laws of international organizations. But his education was almost entirely about the laws of his own country．
That was the way it was back then. Legal education looked inwards. Each country had its own approach. And that was in part because each country had its own view of what a lawyer did, and what a lawyer needed to know to do his job.
In some countries, a lawyer’s job was passive. A client described a situation. And the lawyer was supposed to fit the situation – the facts – into the official rules – the law – and report to the client his conclusion.
In other countries, a lawyer’s job was active. The lawyer was a creative partner with the client. The client described a set of goals, and the lawyer’s job was to explain what different combinations of facts and law might allow the client to reach those goals. If some approaches might be more challenging to achieve than others, the lawyer’s job was to figure out the best way to develop a win-win solution.
So, in my father’s day, the kind of legal education one received depended on whether one’s country embraced a more passive view of the lawyer, or a more active view.
Today my son is a law student. And he is receiving a very different education. His law school began by explaining that today we are affected by a complete body of what we call transnational law. They are affected by the legal systems of their own country, legal systems of other countries, and legal systems of institutions that are composed of several nations, and international law.
My son is being taught that if he wants to be a complete lawyer, he will need to do twice as much as his father did. He will have to learn the legal rules that apply in his own country. He will have to learn the intellectual customs and habits of American lawyers. And he will also have to learn the transnational legal system. Both the legal rules that apply in the transnational domain, and also the intellectual customs and habits of transnational lawyers.
Who are these transnational lawyers? They are the lawyers who work across national borders. They are the lawyers who help local companies to sell their goods and services for export. They are the lawyers who help their country’s citizens to get visas and travel and study and live overseas. They are the lawyers who help their countries to explain their policies in international tribunals such as the WTO. Usually these lawyers are licensed as lawyers in more than one country. Today these lawyers are usually found working in very large multinational law firms – firms with offices all over the world, employing lawyers who come from all over the world.
And what is it that distinguishes these transnational lawyers intellectually? Interestingly, it is not so much that they have learned the rules of several different countries. Rather, it is that they have been taught to think about legal problems in a particular way.
To begin with, transnational lawyers are active lawyers. Their roles do not allow them to be passive in a way that some countries have traditionally employed their lawyers.
Moreover, transnational lawyers are active lawyers with a particular way of thinking about the law. Transnational lawyers have been taught that in most transnational legal situations, there are several different ways of looking at a problem. And they have been taught how to see all those different sides. They have been taught how to hold all these sides in their mind at the same time, and how to explain all of them to others – to their own clients, and to transnational lawyers who are representing other clients. There is a name for this intellectual skill. It is called, “sympathetic engagement with counterargument.”
“Sympathetic engagement with counterargument.” It means thinking about arguments for why the law might require one thing. And then thinking very hard, and very sympathetically, about arguments for why law might require the opposite thing. The goal is to avoid rushing to decide which point of view is right and which is wrong. The goal is rather to become comfortable holding multiple perspectives on an issue in your mind at the same time. To be comfortable with the complexity of problems. And to be comfortable with the idea that different people who are reasonable and good might believe, think, or act differently from one another.
In the years between the time when my father was a law student and today, when my son is a law student, a new system has emerged for preparing transnational lawyers. The most obvious difference is in the degree they receive. When my father went to law school, he received an LL.B. degree. When my son graduates, he will receive a degree called a J.D. A Juris Doctor.
What are the key features of the kind of legal education that prepares modern transnational lawyers, and gives them an international-standard J.D. degree?
There are three.
First, students do not begin to study for a J.D. degree at the age of 18, fresh out of high school. They are more mature. They have already earned a bachelor’s degree. They are intellectually ready for advanced education.
Second, the emphasis in the curriculum is not on having students memorize legal rules. It is on teaching them the special intellectual skill of sympathetic engagement with counterargument.
Third, the emphasis in the curriculum is not on the laws of a single country in isolation. It is on understanding how the laws of different countries, from different legal traditions, and different legal systems, are similar and different. How they compare with one another. How they might be harmonized with one another.
How is this teaching done? Transnational law schools make use of several different teaching techniques. Each has its own special benefits. Each contributes to the development of a lawyer in a different way.
One teaching technique is what I am doing now, the lecture. The professor stands at the front and tries to explain a subject area, clearly and completely. Afterwards the students ask questions.
This is a wonderful technique for transmitting information. But it is not very effective for developing the skill of sympathetic engagement with counterargument.
A second technique is the opposite of a lecture. It is called the Socratic method, named after the approach of Socrates. Instead of explaining an area, the professor asks the students to explain an area. Whatever explanation the student might give, the professor is able to ask additional questions to show the student the limits of his analysis, or the ways in which another analysis might work just as well, or perhaps even better.
This is a difficult way to teach. Much more difficult than the lecture. And much less efficient than a lecture at transmitting data. But it is the best technique ever devised for developing sympathetic engagement with counterargument. For students it is frightening, because they are required to perform in front of their classmates. But it is also thrilling. I have heard students say that they could feel their brains getting bigger because of the Socratic method.
A third technique is the seminar. In the seminar a small group of fifteen to twenty students gets together to read and discuss a text. The professor is neither a lecturer nor a Socratic questioner. Instead, the professor facilitates a discussion among students who are learning how to be researchers.
A fourth technique is the clinic. In a clinic a student has the chance to practice doing the things that lawyers do, under the supervision of a teacher. This may be through simulation exercises. Or it may be by representing a real client with a real legal problem.
As we all know, the pace of economic globalization has accelerated enormously over the past ten years. And that acceleration has created pressure for international standardization around the preparation of transnational lawyers. Countries continue to pursue very different approaches to preparing lawyers in their domestic laws. But they are converging in their approach to the international J.D. They are converging on an approach that uses all four teaching techniques to provide the key educational elements for an international-standard J.D. degree.
Until recently, an Asian student had to go outside of Asia if he or she wanted to receive such a J.D. degree. A student from China, from Australia, from Japan, or from Korea who wanted to study transnational law would usually go to the United States or to Canada.
But in the past few years Asian countries have begun to say, “We are happy for our students to go to America, but we do not want that to their only choice. We also want to create an option for them to study transnational law here at home. We want to create a program for students who have already received a bachelor’s degree, a program that will teach them sympathetic engagement with counterargument, a program that will teach them about the world’s legal systems.”
The exciting news is that last week China announced that it will be joining this group of leading Asian countries that are reshaping the world’s system of legal education. Next year, Peking University will open a new School of Transnational Law, on its campus in Shenzhen.
The School of Transnational Law will enable Chinese students to acquire a J.D. degree without having to leave China. It will employ a curriculum that is truly international standard, developed in close consultation with law professors from around the world and in close consultation with senior lawyers at multinational law firms. All courses will be taught in English, the language of international law and business.
Courses at the School of Transnational Law will be taught by the best law professors from around the world. These professors will take what is best from other countries, and they will improve on them, adding the special insights and perspectives of China into the mix. We expect this program to take the international standard to new heights.
Admission to this School will be highly selective. Students must have proven themselves to be among the very best in China. They must haven proven their ability to study in an environment where every class is taught in English. They must be wiling to work extremely hard for three years, after they have already spent four years earning a bachelor’s degree.
The graduates of this program will be a special resource for China. They will be a special treasure. I have spoken about this program with senior partners at top multinational firms, and they have expressed great excitement about this school. They want this school to quickly become the best transnational law school in Asia. They expect that the graduates of this program will enable their firms to provide a new quality of representation to China and Chinese businesses in this new era of globalization.
I have had a special relationship with Beijing Foreign Studies University these past two years. I know and admire the leaders of your university. And I know and I admire what Beijing Foreign Studies University stands for.
This is a university that is, as part of its core mission, devoted to helping you develop transnational competence. Linguistic competence. Cultural competence. Expertise. And even, if I might be so bold, a transnational perspective on the human condition.
And that is why I hope that some of you will decide that you would like to apply for admission to the first entering class of the School of Transnational Law. I hope that you will decide to submit an application to this elite new program. If you are admitted, you will bring to the program the special benefits of your preparation here at Beiwai. Those benefits will help your fellow transnational law students to be stronger as well. And that will, in the end, make the benefits to China be even greater.
Thank you for your attention.
