Where law and pedagogy meet in the transsystemic contracts classroom.

• Author: Jukier, Rosalie
• Position: Canada

In this article, the author examines how the transsystemic McGill Programme, predicated on a uniquely comparative, bilingual, and dialogic theoretical foundation of legal education, operates "on the ground" in a first-year Contractual Obligations classroom. She describes generally how the McGill Programme distinguishes itself from other comparative or interdisciplinary projects in law, through its focus on integration rather than on sequential comparison, as well as its attempt to link perspectives to mentalites of different traditions. The author concludes with a more detailed study of the area of specific performance as a particular application of a given legal phenomenon in different systemic contexts.

Dans cet article, l'auteure examine comment fonctionne >, dans un cours d'Obligations contractuelles de premiere annee, le prograrmne transsystemique de McGill, bati sur des fondements theoriques de l'education juridique qui sont a la fois comparatifs, bilingues, et dialogiques. Elle explique comment, de maniere generale, le programme de McGill se distingue d'autres projets juridiques comparatifs ou interdisciplinaires, de par son insistance sur l'integration plutot que sur la comparaison sequentielle, ainsi que de par son objectif de relier les perspectives et mentalites propres a differentes traditions. L'auteure conclut avec une etude plus approfondie de la doctrine de > en tant qu'application specifique dans divers contextes systemiques d'un phenomene juridique donne.

Introduction I. The Aspirations of Transsystemic Teaching A. Moving from the Sequential to the Integrated B. Linking Perspectives to Legal Traditions II. Specific Performance as an Illustration of Transsystemic Teaching Conclusion Introduction

Many scholarly and thoughtful articles (1) have been written about what Harry Arthurs has termed "one of the most unusual curriculum experiments in the annals of legal education," (2) otherwise known as the McGill Programme. Although omitted from its official title, the McGill Programme offers what we refer to as "transsystemic legal education". While the term "transsystemia" is not universally endorsed, and is even questioned by some, (3) it is the nomenclature most often used at McGill to describe a programme of legal education that is exemplified by a "uniquely comparative and bilingual environment," (4) one that focuses on the "dialogue between legal traditions and legal cultures," (5) and one that reflects the goals of "cosmopolitan jurisprudence". (6)

What exactly transsystemia means is not possible to pinpoint with any accuracy or consensus. One of my colleagues has likened it to "nailing jello to a tree." (7) Most of us actually engaged in the enterprise of transsystemic teaching certainly have a strong sense of what it involves, but find it incredibly difficult to articulate--almost in the same vein as asking someone to articulate what it means to be an American or a Canadian or a member of an ethnic community. We feel it, act it, live it and intuit it, but when it comes to describing it, we are often at a loss for words.

What is clear, and undoubtedly agreed upon by McGill colleagues, is that the McGill Programme has recast the teaching and study of law. The transsystemic focus has freed the faculty from viewing law within the constraints of a doctrinally based professional vocation, and has enabled it to shift toward a more intellectual model of legal education. (8) This is because transsystemia focuses on the fundamental structures, ideas, values, techniques, and processes of law, rather than the laws or legal rules of a single jurisdiction.

The object of this article is not to add to the literature on the McGill Programme or further seek to refine it in any theoretical sense. Rather, this article is an attempt to describe, from the vantage point of experience, what this innovative approach to legal education has done to legal pedagogy on the ground, so to speak. What actually happens in the classroom as the professor interacts with a group of eager first-year students who have all cited McGill's "uniquely comparative and bilingual programme" as the reason they wish to attend this law faculty above all others in their admissions applications? Their statements are made in good faith, but with little understanding as to what they actually mean other than the instrumental fact that after three to four years of study, they will graduate with two law degrees (the B.C.L. and the LL.B.).

This article will first attempt to outline the aspirations of transsystemic teaching in a general sense and then move to a more detailed illustration of this approach using contract doctrines, including the legal concept of specific performance, as examples.

1. The Aspirations of Transsystemic Teaching

   The motivating force behind McGill's transsystemic programme was beautifully put by former Dean and now the Honourable Mr. Justice Yves-Marie Morissette, when he stated that McGill "has always been habited by the conviction that a great deal can be gained ... from a sustained and humble dialog with otherness." (9) Otherness refers, of course, to other legal systems that have distinct historical developments and distinct modes of organization and that evidence other ways of structuring and thinking about law. The goal of incorporating otherness into our pedagogy is not motivated by a desire to become more like the other, as is the case with many contemporary European harmonization movements, (l0) but rather to gain a better understanding of the other. It is the desire to free the study of law from jurisdictional, temporal or systemic boundaries, and to multiply the perspectives on legal study, that best exemplifies our original motivation for the adoption of this programme.

   While, like most truths, this seems both simple and self-evident, there is, by no means, universal buy-in to this concept in the legal world. One need only consider the recent statement by Mr. Justice Scalia of the US Supreme Court, dissenting in Lawrence v. Texas, (11) criticizing the majority judgment for its reference to foreign nations and their treatment of similar cases. He states: "The Court's discussion of these foreign views is ... meaningless dicta. Dangerous dicta, however, since this Court ... should not impose foreign moods, fads, or fashions on Americans." One can also point to a recent bill before the US Congress which, if passed, would forbid the US Supreme Court from considering foreign judgments in cases before it. House of Representatives Resolution 568 expresses "the sense of the House of Representatives that judicial determination regarding the meaning of laws of the United States should not be based on judgments, laws, or pronouncements of foreign institutions" (12) and constitutes a reaction against US judgments, such as the recent case of Lawrence v. Texas, which, in the majority opinion, has done just that.

   While these sorts of statements admonish us not to take the concept of otherness for granted, one must recognize the greater acknowledgment of the notion in Canada, given its bijural nature. But even in the United States, there is an increasing awareness in legal academia of the importance of adapting legal education to the new "transnational" reality. (13) It is quite clear that in the United States, there is an incipient movement toward integrating transnational legal perspectives into the basic law curriculum. As Dean Grossman of the American University, Washington College of Law has stated:

   Lawyers practicing in a global environment must understand legal traditions that influence other countries, an understanding that goes beyond international laws and norms regulating the conduct of nation states. This knowledge includes an understanding of the legal culture, whether it is common law, civil law, religious law, or customary law. (14) If more jurists are "catching on" to the move toward learning about the other, what remains unique about the McGill Programme? What, in essence, makes it different from the myriad of comparative approaches to law that exist around the world and in turn, makes teaching and learning at McGill so different? As stated earlier, while McGill colleagues universally acknowledge that transsystemia opens up vistas and frees law from jurisdictional boundaries enabling us to appreciate, as Nicholas Kasirer has said so eloquently, law's cosmos as opposed to its empire, (15) transsystemia has inspired everyone in a unique way. For my part, explaining the aspirations of teaching transsystemically can be summarized by focusing on two notions.

   1. Moving from the Sequential to the Integrated

      The first major respect in which transsystemia distinguishes itself from more usual forms of comparative law lies in the move from the sequential to the integrated. There are many law programmes that offer, alone or in partnership with other faculties, sequential, side-by-side, comparative legal education. (16) From 1968-1999, under the auspices of the National Programme, McGill's Law Faculty did just that. (17) McGill students were regularly taking courses in Common Law Property, Contracts, and Torts in one year, and Civil Law Property and Obligations (both contractual and extra-contractual) in another year. While that approach to legal education certainly enabled students and professors to adopt a comparative approach, such an approach was necessarily limited by the very fact that the law was taught in separate courses by different professors whose perspectives were each monosystemic. What was missing was the integration between the subjects in the various legal traditions. (18)

      The goals of legal education under the transsystemic programme have expanded. No longer is it seen as adequate to teach, no matter how well, distinct systems of legal thought in separate silos. The goal now is to create minds so agile and creative that they can think open-mindedly within alternative systems of thought, nimbly...