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Gill H. Boehringer, writings of A former Dean of Macquarie Law School, Sydney Australia; and, an inter-disciplinary scholar.

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Old 09-08-2013, 01:25 PM
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Default Globalization, the Law Curriculum, Legal Ethics and The Great Transformation

Globalization, the Law Curriculum, Legal Ethics
and The Great Transformation
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[Note: Green highlights added by Reviewer.]

In discussing the suggestions for reform of the curriculum in Filipino legal education, there has been a sense of urgency expressed as ASEAN integration in 2015 will require a “modernization” of the curriculum so that this country does not become overwhelmed by foreign lawyers more able, perhaps, than local lawyers to deal with the new, complex problems that are associated with globalization. There is apparently a broad consensus that the Bar Exam needs to be reformed so that some of the constraints imposed by it on the curriculum can be cast aside and academic freedom to choose what should be taught can be increased.

I want to raise some questions about this proposed modernization of the curriculum as it relates to another issue we are dealing with in this conference: ethics and values in the law school curriculum. Let me say a few words about the teaching of ethics and values in law schools. First, I agree with Justice Arturo Brion that ethics and values ought not to be taught as a separate subject. I believe that to do so is probably going to have little impact on the students, many of whom will likely see such a subject as just one more course to get through and receive a passing grade. Being quite abstract, and in that sense artificial with no “ties that bind,” it is unlikely to “rub off” in a positive or lasting way. Moreover, it could even have a negative impact as it might be seen as irrelevant to the real world of legal practice. His view that ethics and values for lawyers should be taught pervasively, integrated into courses throughout the curriculum, is one I share. Second, I also believe that the “balanced lawyer” perspective discussed by Prof. Tanya Lat, and the “rule of law” approach pioneered by the New York University Law School, discussed by Prof. Joan de Venicia, can be excellent vehicles for developing a pervasive approach to the teaching, and inculcation, of legal ethics and values. I was interested also in Prof. Jocelyn Cruz’s comment that the De LaSalle program in Human Rights based legal studies, with immersion into extra-curricular legal service, has had a profound impact on students.

Third, if I may speak from personal experience, consideration could be given here to the importance of locating the study of law – and ethics and values – in an historical and philosophical framework. At Macquarie University, we had a foundation course in the first year: History and Philosophy of Law (HPL). In subsequent courses the students could use insights from HPL to think critically about the historical emergence of different legal regimes and the activities of the lawyers in each. In this way we sought to develop the “ties that bind” to the profession, inspiring them with examples – as Tanya Lat suggested we must do – of good and courageous lawyers for them to emulate because that is part of the tradition. To do justice, act ethically, and seek a better world.

Let me return to globalization, modernization and ethics in legal education.

As is often said, life was not meant to be easy. It can be quite contradictory. What kind of ethics and values are likely to accompany globalization, and therefore likely to dominate Philippine society as it continues to modernize? If, as can be expected, those values were to become dominant throughout society, and if we assume the ethics and values of a globalized fully modern society are significantly different from those historically recognized in Philippine society, that may present a dilemma for those who have to teach the new law curriculum, including the new ethics and values. It certainly raises some issues which need to be considered seriously in creating a new curriculum suited to a globalised future.

In my view, globalization has almost become a cargo cult object. If we get globalization (often essentially “free trade”) then all will be better, our problems solved (or on the way to being solved). However, I think that is an overly optimistic, indeed misguided view. I would suggest that globalization and the modernization of the country present a grave threat to a justifiable and acceptable ethical order in which social justice prevails. We need only to look at the developed countries in the West, not least the USA which embraced globalization earlier and more comprehensively than others. Exclusive economic growth, austerity and a myriad of social problems do not represent a convincing picture of the benefits of globalization and accompanying ethics.

The Great Transformation

About 70 years ago, Karl Polanyi wrote “The Great Transformation.” In it he discussed an historical watershed in European history, roughly during the 18th and 19th centuries (earlier in England, which was the first country to go through the process, although being first it was not as thoroughly transformed, and has retained some “archaic” elements, e.g. the House of Lords). That original European transformation bears some similarities to the transformation which has been underway for some time in the Philippines, and continues to develop through the effects of globalization.

I suggest there are some important lessons for Filipinos to consider from an examination of the way in which European cultures were affected by that transformation from late medieval societies into early modern, globalizing societies (globalization is not entirely a contemporary phenomenon). Which induces me to say, “Be careful what you wish for!”

Polanyi drew a distinction between two types of society: first, traditional society, with markets of course, but these were embedded in a network of traditional social, economic and political relationships, and cocooned by traditional values and practices. Such markets were not like the “free markets” of today. They were highly controlled or regulated, not by the positive law of a central sate but by historically constructed and recognized local rules and regulations, or what we might call “customary law.” A Biblical example of such custom (from Deuteronomy and Leviticus), is the right of the poor peasants to glean, i.e. to enter on the land of a farmer and take the left-over grain lying on the ground after the harvest. This customary right was recognized across Europe, along with the right of the poor to gather wood which had fallen in the forests – most of which belonged to landlords and monarchs.

Second, Polanyi saw a shift from the traditional society with its forms of feudalism and absolutism, to the market society of emerging democratic, capitalist countries. In this market society, the pressure from the developing modernizing forces – the early globalizing forces – destroyed customary laws, traditional practices and values. (See e.g. the great English gleaning case, Steel v. Houghton, 1788 in which the court made gleaning illegal.) The market society is one where the market is at the core of human activity. A new set of values, such as “buyer beware,” are constructed, and come to dominate all human activity. The market had now emerged from the traditional, protective cocoon, and destroyed it. Further, this new “free market” came with ideological baggage. The ethics and values were those of the market place. They became all-pervading in the new modernizing (and globalizing) societies.

With the greatest respect for a country I have grown to greatly appreciate, the Philippines is not yet entirely modern. It has not yet completed the transformation from traditional society to a modern market society, to a globalized society. Of course there are great contradictions in this country. There is great wealth and the veneer of modernity, but there is also great inequality and semi-feudal elements are still strong, especially in the rural provinces where so many millions of people live. As a result, while many, especially in urban areas, seem to be living in a fully modern market society with its consumer culture, many more millions are living in societies more traditional than modern. To put it another way, there remains a sub-stratum of traditional values in Philippine society (probably to some extent even in the urban areas which themselves are quite contradictory, being part modern, part traditional). Those traditional values include mutual aid, sense of community and family, sharing what little one has with others, especially in emergencies. (It is beyond the scope of this paper to provide an analysis of the origins of such negative phenomena as corruption, violence and the corrosive impact of dynasties. While these and other practices may be such a large part of life here that they may appear to be a part of traditional society, I suspect all of these are, at least in significant part, a product of the social forces unleashed by colonialism long ago, and are not endemic in traditional societies all across the archipelago.)

Globalization, in that it brings to the Philippines the promise of modernity and prosperity, of economic growth organized by the “free market,” has been welcomed in the corridors of power and wealth, but it threatens a tidal wave of destruction and transformation for ordinary people. It promises universality – all to be equal and free to choose their own destiny; the ideology associated with globalization, and the popular culture it spawns, emphasizes the heightened sense of individualism, the free and autonomous consuming citizen who can achieve anything, be anything, if they just try.

But of course the reality does not match the rhetoric. Look again at the USA, the most globalized, modern country in the world. The social problems, including environmental destruction, lack of universality (e.g. discrimination and dis-enfranchisement of minorities), the increasing inequality, the non-accountability of its political system and the over-weaning power of the mega corporations which have been caught time and again using the most unethical practices, suggest that the transformation carries with it a number of very serious problems. Indeed, dangers.

Let us turn our gaze back to the Philippines where the partial transformation wrought by the colonialists and carried on by the local elite, seems to have brought many of the same problems. Not least is the lack of ethics and social values in the marketplace, a lack seemingly spread throughout government, other institutions and the professions. (I have been on the receiving end of this in the real estate development industry, but that is a story for another time.)

Let me paraphrase one of the most insightful and probably least controversial passages in the work of Karl Marx: humans make their own history, but they do so in circumstances which they have not chosen; and in making that history they face the reality of past and present.

The globalized future facing the Philippines, and the remaining traditions of this society, are going to clash. Indeed, they have and are in the process of clashing. In order to choose your future, your history, you cannot simply allow the forces of globalization to transform your society, your law teaching and your curriculum with the individualistic values and ethics suitable for the market under globalization.

In considering how to modernize your curriculum, keep in mind that by choosing to develop a curriculum based on the instrumental need to service the institutions of commerce and state, you will not be offering a value-free program of legal education. You will have to ask: what are the ethics and values associated, in reality, with the market, how do they differ from traditional Filipino values, and how can we try to preserve traditional values we wish to preserve, how do we propose to prioritize the importance, above all, of human rights and the environment.

Clearly, a plan will be necessary. Ask the questions now. In light of the “second great transformation” which commentators are calling the contemporary impact of globalization, how do we construct a curriculum, including extra-curricular elements (e.g. internships with community groups, public defenders, people’s lawyering, legal aid, human rights activism) which will tend to encourage students to develop the habits of an ethical lawyer citizen? I refer here to the work of Hannah Arendt, especially "The Human Condition." For Arendt, the essence of citizenship is a commitment to participate in the public discourse of a society with courage and principles, being willing to speak truth to power. Your task could be said to produce those graduates who will accept those commitments, living an ethical life based on human values, not those of the market place.

As Prof. de Venicia reminded us, the context of your discussions is capitalism. And capitalism, which has been the source of the market society, carries with it particular values and ethics, not only in the substance of the law but also in the form of the law.

The point should be clear. The values and ethics of the globalized market society will be reflected in the law, and can be expected to replace some of the most positive values and ethics of traditional Filipino society.

Reforming the curriculum will present you with choices. I suggest that the Philippine Association of Law Schools (PALS) might wish to include in its next annual conference the issue of teaching ethics by the pervasive method and the ideas discussed by Justice Arturo Brion, Tanya Lat, Joan de Venicia, and Jocelyn Cruz (Vice Dean, College of Law, De La Salle University), but to do so in the context of globalization that will bring with it certain values and practices in reality, whatever lofty abstract ideals are used to describe those practices.

I wish you good luck in making appropriate choices for the future of your graduates and your country.


* Remarks at the LEB-PALS Annual Conference on Legal Education, Cebu City, Aug. 18, 2013.


More Gill H. Boehringer writings with Shortcut Links

www.atD21.com/Gill

www.GillBoehringer.com


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Last edited by Epsilon=One : 04-19-2018 at 06:54 AM.
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