The reluctant comparativist: Teaching common law reasoning to civil law students and the future of comparative legal skills

Abstract

It would be reasonable to assume that civil law students learning common law reasoning are already familiar with the basic structure of rules, and that to adequately reproduce common law reasoning they need only learn that common law rules are based on case law and derived from particular factual scenarios. Experience, suggests, though, that civil law students have considerable difficulty grasping the structure of common law reasoning, in part because common law rules are a different sort of rule compared to the type of civil law rule the student is familiar with. The learning occurring is essentially comparative legal reasoning, but there is relatively little in the way of scholarly discussion that would assist in identifying the conceptual differences or seemingly predictable confusions that occur. The considerable scholarly discussion of a globalized legal arena suggests that comparative legal analysis should be developed. I offer some initial observations concerning how a comparative legal skills pedagogy might proceed, and suggest how to structure a common law reasoning course for civil law students using a comparative approach.