Handmaidens, Hierarchies and Crossing the Public-Private Divide in the Teaching of International Law

Abstract

This article explores the question of what law students are encouraged to imagine as the role of international law in the global community. It argues that the ability to practice international law as economic and social justice is impeded if the teaching and learning of international law has been experienced as hierarchy. By hierarchy, the author means practices, doctrines and beliefs that take for granted or normalize the inequalities in power, wealth and status that are reflected, in many ways, in the normative hierarchies of international law. In particular, the author is concerned with the reconceived hierarchies and deepened inequalities that have accompanied post Cold War economic globalization, stemming at least in part from the insistent prioritization of private (economic) market values over the civic and redistributional (political) values of public international law. The discussion draws on a survey of the undergraduate courses offered by Australian law schools, in public and private international law, in 2000. The article focuses on three ways that the teaching and learning of international law can normalize hierarchy and thereby hamper independent, critical, social justice thinking. First, in the student-teacher relationship or, put another way, in the (lack of) engagement of students in the act of learning. Second, in the assumptions implicit, and perhaps explicit, in the content and structure of survey or foundational courses in international law. Third, in the specializations in international legal education that have developed and, in particular, the diminishing importance of public international law (and therefore 'fairness' obligations) as the private international law of the marketplace expands. The article suggests several strategies for making hierarchies transparent and contestable in legal education. The first is to use dialogic teaching methods, which enable students to become subjects of their own learning, to value diversity and pluralism, and to feel empowered to participate in the shaping of 'globalization'. The second is to redesign the curriculum of survey courses in international law, so that the classical pedagogical 'givens' are disrupted and new spaces for critical engagement with legal doctrine and practice are created, with a view to shifting the possibility of economic and social justice from aspiration to practice. Thirdly, the article suggests that the deepening division between public and private international law in legal education, evident in the proliferation of private international law electives, needs to be transformed. This transformation involves refusing the dualistic public/private separation - crossing the borders, as it were - and making room for hybrids of public and private international law by recognizing the complex interactions between them. In sum, the promotion of economic and social justice values relies on a rethinking of international legal pedagogy in its many dimensions, as a hybrid of public and private, which opens up the possibility of fairness obligations arising in both spheres.