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Teaching Comparative Public Law in Law Universities

Teaching Comparative Public Law in Law Universities
- Dr S K Bose, Associate Professor & Director, Centre for Legislative Studies and Research, Manav Rachna University*

Embedding Comparative Public Law in LL.M program (one year) curriculum with effect from the 2013-14 session is one of the fascinating developments that has ever happened to the legal education in India. Under the watchful eye of the UGC, not only was this subject included in the LL.M syllabus for the first time but also the think tank took all necessary considerations to ensure Comparative Public Law remains one of the compulsory subjects in LL.M program in the first semester itself. Therefore, one can presumably say that in the realms of academia as well as practice in courts and tribunals at international circuits, comparative public law has an overwhelming importance. 

Teaching CPL is a Challenge
Comparative Public Law is massively challenging course for two reasons. Firstly it’s being a theoretical subject the majority of students do not have any experience or intuitions about how agencies of different administrative set-ups make decisions; secondly the subject of comparative law does not lend itself to coherent step-by-step development because every topic fits together with almost every other topic, so that no matter where one begins, one must refer to material that has not yet been covered. Any attempt to define Comparative Public Law in order to have a clear-cut comprehension of this subject is tantamount to making a belief into a myth. One of the key factors to be accounted for is that there is no straightforward and incorruptible link between what we know about the subject to be true, between what we know and what we would believe. Public law includes constitutional law, administrative law, criminal law, taxation law, procedural law, labor law, trade law etc. which cover administration and governance. Taxation and criminal acts fall in this category too. These laws control the actions between the citizens of the state and the state itself, thus invariably deals with the governments’ operation and structure. Having taught this subject for quite some years, I have very closely observed that most of the students often experience a bout of bewilderment and dilemma when it comes to bring objectivity to the discussion with regard to studying and analyzing foreign law relating to comparative law. This has often resulted in fierce debates and academic disagreements. Perhaps, this is because of the teacher’s approaches to teaching comparative public law.

Comparative Law and the International Curriculum

One of the most defining features of comparative law is that it motivates domestic law scholars and lawyers to look beyond their own systems, which is why the study of comparative law is closely connected to four other fields: the study of foreign law, private international law, public international law and transnational law. All these including many other subcategories constitute the international curriculum. Many scholars of law and legal researchers have a vague sense of the differences of comparative and international law. It is but obvious that students feel the need to clearly understand how to distinguish their discipline from their international neighbours. To do so, my first and foremost advice to both students and teachers is to remember the fact that the animal called comparative law is a method of studying law and a stock of academic knowledge. To put it in simple way I would say there exists no comparative law but only the comparative study and knowledge.
Apart from this there is also a conventional list of disciplines to which comparative public law has often been linked i,e legal history, the sociology of law, legal philosophy, legal anthropology, economic analysis of law and of course the modern concept of transnational law. The list in my opinion cannot be exhaustive because there is a huge possibility of the inclusion of linguistic studies as well.

Teaching Approaches & Pedagogy

While tackling this subject I have applied one or two organizational approaches one of which I call theoretical underpinning approach wherein formulating a theory of governance as prescribed by experts and comparative critiques in a copybook style with traditional standards in terms of its structural genesis and moving from there in step by step approach to understand and critically evaluate its functional aspects that includes its nature, scope and interdisciplinary expansions. This approach may smoothen students’ transition of grasping the concept in its entirety right from the fundamentals to the complexities of the administrative systems and governance mechanisms of the leading countries which essentially involve both substantive as well as procedural aspects. The beauty of this approach is that it allows you to build a logical coherence, thus making the whole exercise simpler for students to understand even the minutest details of this subject. For example when the students are explained the concept of judicial review after they had been made to understand the administrative and law making systems –the doctrine of separation of power, they can be led to understand that the courts are not the only major constraint on agency decision making. Thus, having a secure understanding of agencies' place in government, students become reasonably confident to be able to appreciate the procedures that the law dictates the agencies to follow. 

The second approach which I have tried several times is the procedural approach. This approach works somewhat better in spite of certain difficulties .Under this approach, one can proceed  through the various procedural requirements imposed on agencies as per the provisions laid down by the Constitutions of different countries and the administrative procedures in those countries which brings certain  exceptions from procedural paradigms, stressing administrative discretion. Let’s say, the component on judicial review invariably becomes the major focus of the comparative public law because, as lawyers, students primarily will be asserting arguments in agency and judicial proceedings that stem from constraints placed on agencies by the courts. This approach though makes students more attentive than the theoretical underpinning approach, yet students generally fail to appreciate much of the academic criticism of law of different nations simply because they don’t know why these procedures are imposed and their significance in the structure of the Governments.

Focus of Education-Student Learning

Let’s not forget the fact that comparative public law or comparative constitutional law is a subject which is of growing importance both practically and academically owing to the massive development of communication and to the rising contact between citizens and commercial organizations.  At present the literature of comparative public law is terribly scattered, fragmentary and often difficult to access. It is my hope that this article may hereafter be of some service in helping to provide some insight into teaching this subject. One must remember that the central focus of education is student learning. Especially, in law schools, the core of student learning includes the substantive content, skills, and professional values which are critical to the education of an effective, ethical lawyer or legal professional. If student- learning is central to the mission of legal education, then an understanding of how humans learn should help law teachers become more effective. 

*Dr SK Bose is Associate Professor at Faculty of Law & Director at Centre for Legislative Studies and Research, Manav Rachna University. He teaches Comparative Public Law in LL.M program & International Criminal Law & Legal English in UG program. He has authored more than a dozen well received books for academic audience and has published a number of articles in national and international journals of high repute.