Studying Law Without the Socratic Method

One of the things I noticed during my semester as an exchange student at the University of Copenhagen is how much legal education in Europe differs from the approach taken by law schools in the United States. The most drastic difference is, without a doubt, the way in which classes are conducted. In U.S. law schools, most professors use the Socratic method and the call system that law students have come to fear. In contrast, in many continental European law schools, courses are taught simply through lectures. On rare occasions a student will interject with a comment or a question, and on other rare occasions a professor will ask for voluntary input from the class, but for the most part, the professor is the only one who speaks. I have sometimes wondered whether a non-Socratic method of teaching adequately prepares students to be effective lawyers. American law students are forced to take a position on the law, make arguments for it, and apply it to the facts. By being subjected to the Socratic method, we are forced to think on our feet and be prepared for any questions that may be thrown at us by a judge, a client, or a fellow attorney. Arguing a position is one of the most important lawyering skills in both litigation and transactional practices. Therefore, teaching these skills would seem to be a valuable part of legal education anywhere in the world.

Given this apparent superiority of Socratic legal education, I have often wondered whether European law students feel they are at somewhat of a disadvantage. After all, they are not being challenged in class on a daily basis to make arguments and defend positions. I was surprised to learn that many European law students do not believe they are left behind in this respect. Many European students I have met say that classes are meant simply to teach about the law. If students wish to develop their litigation skills, they take a litigation class or join a moot court team, but there is generally no cross-over between developing one’s ability to argue and learning about the law. That is, up until the final exam. Interestingly, many law courses here in Copenhagen administer an oral final, where the professor challenges each student’s ability to argue about the law. Effectively, such an exam tests the students’ skills in taking a position on an issue and defending it. The way European law students view it is that they spend the semester learning about the law, and they then argue the law in the exams. Generally, they seem to feel this provides enough practice of argumentative skills.

The difference in legal education systems likely stems, in part, from the differences in the legal systems themselves. As we are taught in law school, law is indeterminate. This is in part due to our common law system: In many instances, the facts of a case do not fit perfectly with the existing case law and arguments can be made on both sides on how the law applies to a set of facts, and even about the rules themselves. As a result, lawyers are forced to make arguments and defend positions. This is less true for the civil law systems in continental Europe. In the civil law system used in many E.U. member states, the legal processes are not as adversarially driven as our own due to the fact that common law rules and exceptions do not exist. Courts do not need to be convinced of which rule should apply and whether an exception exists, and the absence of binding precedent in many civil law systems means that lawyers don’t need to persuade courts that their client’s position is in keeping with the existing case law. This less adversarial nature of the litigation process appears to be reflected in the legal education methods in Europe and more emphasis is placed on learning what the law is, rather than on developing argumentation and litigation skills.

Personally, I never felt as though I was learning the law itself less effectively abroad than at Marquette. The stronger emphasis on regulations, EU directives, and treaties makes sense in light of the characteristics of the civil law system. Similarly, it makes sense to focus less on cases in class discussion, as in many civil law systems these are not considered to be primary sources of law. It is true that this way of teaching makes for a classroom atmosphere that is less rigorous and personally engaging than classes in American law schools. However, I still feel as though the actual law itself is being conveyed to me in an effective manner and I feel comfortable in my understanding of E.U. law that I have obtained while studying in Copenhagen. In sum, while the Socratic method may be well-suited for education in a common law system, civil law systems appear to call for a different approach to teaching and learning.

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