The Constitutional Foundations of the European Union and the Law of the Internal Market

J.H.H. Weiler writes: This course represents a bold pedagogical and intellectual break with the traditional ways of teaching Community Law.

The students enrolled in this course are facing a huge effort with which most will be unfamiliar: It will demand a sustained level of very high commitment, preparation and engagement. But the rewards will be rich: Both in intellectual excitement and professional formation.

The notion of 'Total Law™' is of course a mere slogan, which tries to capture many of the distinct substantial and procedural aspects of this course. The following is meant to give the flavour of the course.

1. The Contextual Approach - Law and… or Law without…?

Law students tend to classify their Seminars and courses as falling between two poles: Law Seminars or Seminars about the Law ("Professionel" ou "Culturel"). The Total Law™ approach sets out to debunk this distinction. The course will deal, of course with the two most central areas of European law with which all students are supposedly familiar from prior courses. Here then, is an advanced course, which, however appears to re-teach that which is familiar. Don't trust appearances. The Total Law™ approach will teach students to understand European law at an altogether deeper level. Let us illustrate by reference to a common point of reference: The case law of the Court. For the most part, students will not learn new cases, but will learn new ways of looking at familiar cases. For example, jurisprudence will be examined in a dynamic way, as a continuous evolutionary process assertion, reexamination, and adaptation. Here are some of the questions that will be asked, as regards the case law again and again: Why did the Court change its Jurisprudence? Is the explanation the Court itself gives adequate? How to differentiate between Motive Analysis and Legal Reasoning? What is the ideological background and consequence of decisions? How to argue a case so as to persuade the Court to change?

Only rigorous technical expertise and the ability to contextualize can adequately respond to these questions. Indeed, rigorous technical expertise is not possible without the ability to contextualize. The very hermeneutics of the Court, its method of interpretation, its biases in reading the facts of a case and its ideological proclivities in giving meaning to legal texts as applied to the factual matrices before it, are all determined by contextual considerations. The "cultural" and the "professional" are, thus, inextricably intertwined. Lawyers who believe that it is possible to be wholly "professional" without understanding the contextual setting of jurisprudence - who claim that 'all that contextual stuff is not law' - sadly delude themselves.

Students will note that we use the term contextual rather than interdisciplinary. Interdisciplinarity is all too often understood as taking an appetizer in politics, a first course in economics, a main course in law and a desert in history. Each course comes beautifully pristine, and often dumbed down so that the lawyer can understand some economics or the economist can understand some law. The supposed benefit is that the students are taught how the same problem is seen from 'another perspective.' It can be interesting, and cultured people should at least have an inkling of how other disciplines perceive the world. But the level of proficiency attained is about the level of proficiency that most of the students will have in understanding how the automobile you drive works. Few could explain much more than some rudimentary notions of internal combustion. But does that make even those fortunate people better drivers? Note another typical feature of the traditional approach to "interdisciplinarity." A lawyer will be brought to give a legal course to economists. That is very good. But try and ask that lawyer a question about the economic relevance of a legal proposition? Or try and ask, in the reverse situation, the economist a question about the legal relevance of his or her economic observation. More likely then not, the very teachers of such "interdisciplinary" courses will say - I am sorry, I am not an economist; I am sorry I am not a lawyer.

The Total Law™ approach believes in contextualization: Situating a legal controversy, a court decision, a Treaty provision, a Directive or Regulation in its economic and political context. Our aim is not try and make students amateur economists or politologists and not simply to give them "another perspective" of the problem. We want to make students better, much better, lawyers by explaining how the economic and or the political context shape the legal problem and impacts the thinking about the legal solution. We also want to equip the students to understand the economic and political consequences of different legal outcomes. The discipline is Law. The focus is Law. But the premise is that law cannot be understood, nor practiced professionally and competently without understanding its broader contexts.

Thus, when we study Tax Discrimination students will learn about Cross Elasticity and how it can and cannot inform legal thinking about relevant comparators to determine the existence or otherwise of discrimination. When we study Institutions, students will learn the relevant notions of democratic theory or rational choice, or game theory which will help evaluate the legitimacy or efficiency of certain institutional arrangements. Not - here is the political perspective - but what is the role of a political perspective in predicting legal outcomes and, indeed, what should be the role of political (or social, or economic etc) consideration in shaping legal outcomes. There are those who characterize that approach as Law and… (law and economics, law and politics, law and literature) and characterize their own approach as "Pure Law." We strongly contest that characterization. The Total Law™ approach claims to be doing "Pure Law" and characterizes everyone else as doing Law without….

It is this conviction which also made us insist that the Constitutional Foundations course be integrated with the Law of the Market course. Not to mince words: We find it simply laughable that someone could pretend to understand the Constitutional foundations of the European Union without a profound (!) understanding of the market.

2. Team Teaching

Gone are the days where any one person could claim to be an "expert" in European Community law let alone the law of the European Union. Anyone making such a claim is more likely to be a 'Jack of all trades and Master of none.' In fact, most professors and practitioners focus these days on only parts of the subject. That is inevitable. So today, one is forced to choose between superficial 'survey courses' or deep specialized courses which, however, taken together bring about a fragmentation in understanding of the systemic and synthetic features of European law. There is no perfect solution to this problem. But we have done our best. This course is taught by a team. In putting together the team I have eschewed the Old and Famous and have preferred the Young and Famous or the Young and to be Famous. Experience counts for an awful lot, but it is surprising how little intellectual development there is once one starts teaching. Sure, a teacher will learn new cases, study new treaties etc. But how many will be willing or able to revisit the very way they understand law? That is why I preferred to build this course around a group of scholars who are at the very cutting edge of European legal education. I have also chosen them because of the different experiences they will bring to the classroom. Different legal families, different national backgrounds, different professional experiences (in academia, in government, in the Institutions of the European Union) and different approaches to the problems at hand. In this respect students will enjoy the fruits of deep and distinct specializations. The course as a whole was, however, designed together by all members of the Team in an attempt to make the parts fit into a coherent whole and to ensure that the different methodological and intellectual approaches practiced by the different teachers in the course will all add up so that the whole is greater than the parts.

The course will include two other elements: A guide to Research in European Law, with particular emphasis on Internet Resources and legal research techniques and a Practicum which will take the class, in detailed fashion, through all the phases of a case before the ECJ.

3. The Class Room and the Working Groups

Total Law™ requires Pro-active learning. Lecturing will be limited. We reject the Magisterial Frontal Lecture format of teaching. There will be some lecturing but most teaching will be interactive, "Socratic" and diaological. Student engagement is indispensable if we are to live up to the promise of attaining the finest teaching and learning experience commensurate with the intellectual ability of both teachers and students. Thus, unashamedly, this course requires full and regular attendance. It requires scrupulous preparation ahead of the class of the reading assignments. Scrupulous preparation does not simply mean a cursory reading of a text with a yellow highlighter arbitrary applied to a sentence here or there, which students may think looks important. Each text should be read once, reflected upon, read again (only then should the highlighter come out) and discussed with member of the Working Group. The course also requires engagement in the classroom. We cannot accept spectators and free riders. Students cannot go to Theatre School and then, when asked to recite, claim they suffer from Stage Fright. Students cannot come to the study of law, an eminently communicative discipline, and then sit quietly in the back, passively taking notes. Not, at least, in this course.

All students will be assigned into working groups of four to five people. The Working Groups, (under the guidance of the Assistants) will be assigned a topic for analysis. Each week, one member of the Working Group, on the basis of the discussion, will be required to submit a short, typed Memoradum. Over the semester each students will have written about three such Memoranda. The Memoranda will be graded.