POST-SOVIET LAW REFORM
AND LEGAL-EDUCATION REFORM
Case in Point, “Needs Assessment”
At the Department of Law of the
American University of Armenia
21 September 2003
2005 Note: This essay was prepared for the American University of Armenia at the end of my six years there. It is, of course, context-specific — focused on summarizing my thoughts on post-Soviet law reform and legal-education reform within the context of a specific law department of which I was a principal architect and the on-site manager arguing positions which, I felt, needed to be set forth not only for university and accreditation officials but also for students and alumni. I am deeply grateful for the associations made and lessons learned while creating a post-graduate program focused on “best practices” worldwide in law and governance. This essay introduces the “Core Values” component of the Jurlandia website to anchor all Jurlandia writings in pragmatism. Ideas and values are best “brought alive” when offered to achieve specific goals in real-world contexts. The goal of this essay was — and remains — to inspire AUA to achieve excellence in all its undertakings. Hotlinks were added in 2004 when this essay was incorporated into the Jurlandia website. This essay superseded an earlier essay on essentially the same subject, entitled Inquiry and Proposal on the Goals Of Law Reform and Legal-Education Reform Within the Countries of the Former Communist Bloc.
The American University of Armenia (AUA) and hence its Department of Law are seeking accreditation by the Western Association of Schools and Colleges (WASC), a U.S. organization that has never accredited a foreign institution, let alone a law school. This accreditation process requires our Department to engage in a formal “needs assessment” of its goals, programs, curriculum, and governance, etc., and to identify objective “benchmarks” and “outcomes” that can measure student achievements, etc. The assessment guidelines scorn, possibly forbid, consideration of those “consciousness raising” objectives which — the following Report argues — lie at the very heart of our mission: building constitutional democracy and the Rule of Law in Armenia and the post-Soviet region.
This Report critiques those guidelines and proposes a different “needs assessment” approach, one that honors our mission by candidly addressing the key task we face — understanding, explaining, and dismantling “Soviet mentality” and, indeed, “Byzantine mentality” — a task that cannot be “benchmarked” in any meaningful sense because it seeks long-term “outcomes” that include illuminating 2,500 years of human progress towards the Rule of Law based on the Rule of Reason … a special kind of reasoning (as will be explained) which values but transcends logic and science, emphasizing instead the cybernetic, self-referential, participatory quest by which the Logos, born of the Mythos, begat — and still begets — the Nomos, whose “first law” was Solon’s isonomia, equality under the law … the parent of demokratia. Thus, necessarily, this Report illuminates the fundamentals of the Western Legal Tradition and argues that the post-Soviet region has been little influenced by the postulates of “ordered liberty” that shaped, and were shaped by, that Tradition.
Although this Report is cast as though it were a formal departmental submission (for it was initially intended as such), it does not necessarily reflect the views of anyone other than its author. In essence, it is an “invitation to inquiry” regarding issues that our students, faculty, administration, and law-reform allies need to ponder: What are we doing here, and why?
PART ONE – BRIEF HISTORY OF THE AUA LAW PROGRAM
AUA’s Department of Law and its Legal Resource Center were started in 1996-97 by USAID and USIA, respectively, as companion institutions. The first classes were held in Summer, 1997, and the first graduates were awarded LL.M. degrees in October, 1998.
The purpose of these companion institutions was to help build constitutional democracy and the Rule of Law in the countries that were born (or re-born) when the Soviet Union collapsed. From the start, the LRC — essentially a law library — was seen as an integral component of the Law Department; accordingly, these companion institutions are often referred to as the LD/LRC.
As the first Western “university” was a law school built around a museum-become-library in Bologna almost a millennium ago, so all Western law schools are inextricably dependent upon the information-processing resources that store, refine, sustain, compose, and coevolve with any conception of “law” that is worthy of the name. Whatever “real law” is, it must be accessible — as a seamless web of cross-referenced positive law, interpretation, custom, theory, history, and scholarly commentary, etc. — according to the Western Legal Tradition that undergirds modern constitutional democracies. Thus, the LD/LRC’s fundamental mission was, and remains, to “put law out there and make it real” in a part of the world where law, and government under law, have been woefully absent, trumped by single-party dictatorship that is itself imbedded within a Byzantine conception of law that is based on “pure” Justinian law “unadulterated” by the revolution in legal thought — and legal education — that started in Bologna.
In 2000 the Department realized that its goal of making law more accessible — more real — would be advanced by supplementing the Master of Laws (LL.M.) degree, granted to students who already have a first law degree, with a hybrid degree — the Master of Comparative Legal Studies (M.C.L.S.) degree — for students whose undergraduate studies were in a field other than law. From the start we had made exceptions, admitting non-lawyers to our LL.M. degree program; as the numbers of non-lawyers interested in our program grew, however, we thought it best to create two distinct degree objectives, thereby honoring the worldwide practice of considering the LL.M. a second law degree. Our unique dual-track program meets a unique need: As our LL.M. and M.C.L.S. students must work together in the same classroom, focusing on “best practices” worldwide in fields as diverse as constitutional law and corporation law, human rights law and bankruptcy law, so too they must later work together as citizens and professionals, building an informed consensus regarding the theoretical and practical elements of developing and sustaining the Rule of Law in this region.
Recently, the name of the Legal Resource Center was changed to the Legal Research Center, and now — in addition to its prior focus — the LRC is preparing to do funded research and to engage in other funded activities. Such research and activities must remain consonant with the LD/LRC’s mission of law reform and legal-education reform throughout this region.
PART TWO – ASSESSMENT APPROACHES AND METHODS
1. First principles
Past is prologue. The history of the LD/LRC speaks volumes about the “needs assessment” underlying this endeavor. That assessment remains valid, we believe, both in methodology and in resulting institutional goals and programs, but of course this assessment process must continue and its methodology must evolve as the realistic goals of law-based governance in this region become more refined, indeed advanced.
As here detailed, this Report builds on prior “needs assessments” and related discussions focused on the LD/LRC’s mission, curriculum, and activities. For example, in the Appendix to our initial WASC Report, submitted in 2000, we discussed the fundamentally different timing, structure, and institutional goals of American “undergraduate” and post-Soviet “undergraduate” legal education, as well as the unique nature of American “graduate” education in law — especially that leading to an American LL.M. degree, most of whose recipients are foreign lawyers seeking a grounding in United States law. We will not repeat all that important material in this Report. Instead, we refer the reader to that Appendix, entitled Inquiry and Proposal on the Goals of Law Reform and Legal Education Reform Within the Countries of the Former Communist Bloc. It is available on the internet.
We reiterate that this Report has been prepared partly to foster systematic “feedback cultivation” that engages our students, faculty, alumni, and law-reform stakeholders in an ongoing assessment process. To do this well, however, we must first focus on the most important aspects of the “needs assessment” already engaged in, as well as on the very concept of “needs assessment” as it relates, and should continue to relate, to refining and accomplishing the LD/LRC’s mission.
Conventional “needs assessment” should itself be subject to unconventional “needs assessment” when dealing with the unconventional needs of this region — unconventional in many ways, including obviously that (a) WASC has never accredited a law school, and (b) the bodies which in the United States do accredit law schools have never accredited, nor would be inclined to asses the value of, a unique institution focused on unique needs: post-Soviet law reform and legal education reform, building the “landscape” and “mindscape” of constitutional democracy, etc.
Some truths and values are so important and obvious that conventional “needs assessment” ends up not only belaboring the obvious but also thereby belittling its true significance: that it goes without saying. For example, the mid-seventeenth-century Levelers of England composed perhaps the first “reform movement” asserting that all adults should be able to vote for members of Parliament. To this proposition the upper classes scoffed, “Vote?, they cannot even read!” Not surprisingly, efforts over the next three centuries to expand the franchise went hand in hand with efforts to introduce, expand, and improve public education. Indeed, these reformers implicitly understood — as reformers like Pestalozzi and Grundvig explicitly asserted — that “education for democratic life” is more important than mere skills-acquisition aimed at getting a better job, etc.; the “outcomes” they sought (to use the jargon of modern assessment gurus) related to lofty objectives — healthy constitutional democracies, and everything thereby implied — objectives which such jargon would arguably have trivialized.
Grundtvig championed his “folk schools” in order to turn Denmark into a “learning organism” that would metamorphose into an independent, democratic country. If his folk schools had focused on “benchmarking” measurable “outcomes” (so many songs and dances learned per week, so many “units” of love for Danish culture acquired per year), they would never have got off the ground.
Constitutional democracy is an elevated meta-phenomenon that is subverted if it is “dumbed down” into isolated, measurable components, because what is most elevated about it is the connections among all its components, including, above all, historical connections. Nothing that has a history can be understood in isolation from history … not only its own history, but history “writ large”.
No amount of detailed research will enhance the conviction and energy with which those who uphold constitutional democracy will also support the proposition that its success depends largely upon an educated, engaged citizenry. It goes without saying. In like manner, it does not require an elaborate “needs assessment” to conclude that the post-Soviet region needs law reform, legal-education reform, and increasing numbers of lawyers and non-lawyers who can converse together intelligently regarding the fundamentals of “ordered liberty” leading to modern constitutional democracy, thereby together building an informed consensus regarding the interdependent competencies and capacities needed for progress towards … improving the legal landscape and mindscape, step by thoughtful step.
2. “Needs assessments” within their early post-Soviet historical context
The key mission of the LD/LRC was to help establish “real law” — as defined by the Western Legal Tradition — as a necessary foundation for constitutional democracy, economic prosperity, and societal well-being in the former USSR. Decision-making regarding that mission and the “needs assessment” undergirding it came primarily from the Moscow headquarters of USAID’s Rule of Law Project for the Russian Federation and the Caucasus, and those premises were discussed in other USAID/ROL projects (all of which started in 1993), including ROL/Central Asia, where Lowry Wyman (Professor of Law, AUA, 1998-2003) served as the chief lawyer, and where Barnabas Johnson (Associate Dean, Professor of Law, AUA, 1998-2003) served as chief expert on constitutional and electoral systems. Both were friends and colleagues of the other Western leaders in this law-reform field, and (for example) entertained Professor Peter Maggs — later a pivotal LD/LRC proponent — at their home in Almaty in 1995.
Wyman and Johnson had been deeply immersed in discussions about the necessary interdependence of law reform and legal-education reform in this region for almost a decade when they arrived at AUA, shortly after its founding. One of their close associates in Almaty was the founder, in 1993, of the first independent law school in Kazakhstan, and both were leaders in supporting the KIMEP Lecture Series, weekly presentations focused on law reform that were held in a new, Western-style educational endeavor in Almaty. The point here is that “needs assessment” regarding the problems and potentials of this region took place in diverse places and contexts long before the LD/LRC was founded. That assessment remains valid, and although its key elements “go without saying” their articulation here is essential, we believe, if only to dispel misunderstandings regarding what “needs assessment” means — what it ought to include within this Rule of Law context.
That early “needs assessment” not only gave birth to the LD/LRC, it also formed the rationale for a substantial subsequent endowment to ensure that this laboratory and beacon of law reform and legal-education reform would survive and thrive. Let us be mindful that, as a practical matter, USAID and similar funding requires host-country approval, and that the mission and activities of the LD/LRC might be — indeed often are — threatening to the “parties of power” who, for all their professions of reformist zeal, remain mired in that “Soviet mentality” which opposes genuine reform, opposes “government under law” as distinct from mere “government by laws” … the Rechtsstaat as distinct from the Gesetzesstaat.
3. Implications of early “needs assessment” for our present inquiry
Law reform leaders like Professor Maggs and Professor Richard M. Buxbaum, the Dean of International and Area Studies at Boalt Hall and the first Dean of the AUA Department of Law, clearly did not rely on any conventional “needs assessment” to understand the relationships necessarily linking law reform, legal-education reform, competent and accessible legislation applied by able and independent judges, and the many other components — intellectual, institutional, and unarticulable — which together might allow, albeit cannot cause, a transformation from economic dictat to prosperity, from political tyranny to democracy, etc. These things went without saying.
Yet, as already suggested, these things were in fact being said, in different ways but with similar conclusions, by numerous Soviet and post-Soviet law reformers, including Wyman and Johnson. These two scholars were chosen by Dean Buxbaum to build the LD/LRC — and to explain why, and to figure out how, and to attract students and colleagues to this “cause” based on good reasons, powerful persuasions. What were those powerful persuasions? Are they still persuasive?
At the risk, again, of stating the obvious, but also as an essential element of reiterating the truth (a) of what some supposed allies of local law reform either doubt or find “unpalatable” and (b) of what “needs assessment” gurus warn are “unmeasurable benchmarks” of the forbidden “consciousness raising” variety, we must emphasize the following: “Soviet mentality” — as that concept is understood by all thoughtful adults in the former USSR — still suffuses law, governance, and so much else here. Any assessment of regional needs, and more so of relevant responses, rejects this premise at further cost to those who have already paid quite enough for decades of lawless tyranny.
When one has spent many years in the post-Soviet region talking with students, teachers, reformist presidents, recalcitrant apparatchiks, gulag survivors, historians, judges, lawyers, and especially those who seek to create new institutions in this region, one finds, over time, “what works”: What kinds of information, presented in what ways, spark interest, inspire confidence. And what doesn’t. Refusal to take surviving “Soviet mentality” seriously does not work. Wyman and Johnson discovered, during their years helping Lithuania regain its independence from the USSR, that Lithuanian-Americans were insulted by references to surviving “Soviet mentality” in Lithuania, whereas a Lithuanian — student, teacher, everyone — not only knew exactly what “Soviet mentality” meant but welcomed the fact that this term was being used candidly by a Western legal scholar in discussing the law-reform needs of the former Soviet sphere. The Lithuanian Diaspora found “unpalatable” a truth which Lithuanians themselves saw as a necessary starting point for discussing their needs and how the Diaspora might help them.
In discussing those “powerful persuasions” attracting students to AUA’s law teachers, we must above all be candid. Students seeking to free themselves and this region from “Soviet mentality” easily spot phoniness, lack of intellectual integrity, or mere ignorance of local realities. Now, this Report is aimed at enlightening those who might know little about the needs of this region, but the “needs assessment” that went into creating and building the LD/LRC was aimed not at those who will read this Report but at those who must live in this region. They want to build a good future, and they want candid help from those Western reformers who are deeply knowledgeable about, and committed to, genuine reform — even, perhaps especially, when the “benchmarks” of success must be measured over the long haul, embodying “cultural acquisitions” that have evolved over millennia.
These cultural treasures must not be “dumbed down” or stretched and hacked to fit a Procrustean “accreditation bed” intended to measure “educational outcomes” in the United States, where conditions and needs are so very different from those here. For example, in the U.S., constitutional democracy and the Rule of Law — while requiring “eternal vigilance” to keep them safe — are not currently crawling out of a Stalinist abyss. Likewise, concepts like “agency” and “fiduciary obligations” — so deeply imbedded in American free-market culture (albeit always needing improvement) — are concepts that were completely absent in Soviet culture and to date are seldom if ever covered, or even mentioned, in the law schools of Armenia, Russia, Kazakhstan, etc.
In some academic disciplines, such as engineering, AUA’s curriculum might be similar to and therefore comparable with that in an American graduate program; after all, the laws of physics were not repealed by Stalin, and bridges are bridges the world over. But, as noted, and for obvious reasons, no American accreditation body focuses on whether a particular curriculum competently examines “best practices” worldwide in constitution-making and corporate governance, etc., in order to develop an informed post-Soviet consensus on law-reform and legal-education reform, etc. In that sense, the LD/LRC is a pioneer. Having pioneered “needs assessment” in this field, it should be given due deference as it addresses those needs. Its “curriculum outcomes” are different from those of any American institution. This is not bad, it is necessary.
WASC’s “needs assessment” process asks the LD/LRC to discuss the “professional standards” we set, and how we achieve them. Before addressing this inquiry directly, it might be useful to provide some specific illustrations of regional needs and how our curriculum addresses them — albeit not through “professional standards” but through information and inspiration.
PART THREE – FUNDAMENTAL “NEEDS” AND DESIRED “OUTCOMES”
1. Understanding the “Ecology of Mind” and the coevolving ideas undergirding the Rule of Law based on the Rule of Reason
Reference was earlier made to “powerful persuasions” attracting our students to become competent change-agents in this region. What, then, is powerfully persuasive — informative, inspiring — for our students, for this region?
After six years of contemplating this question within the AUA context, and three decades researching this subject, the Associate Dean of the Law Department has found that the following “point of departure” works well — definitely for serious students, and presumably for serious accreditation officials.
We commence with the Ecology of Mind as a general phenomenon, illustrating it powerfully with explication of the “relic” coevolving ideas that shaped, and were shaped by, earliest Western civilization. Although, as later explained, it is essential to impart understanding of that general phenomenon, it is not coincidental that this first dawning of logic, science, and cybernetics — feedback-enriched governance — remains the proper starting point for imparting wisdom and inspiration on the Rule of Law based on the Rule of Reason.
At the dawning of systematic thought in the West, starting with Thales, who is generally considered the first philosopher of ancient Greek civilization, the Mythos — contained in songs and stories, but not yet written — begat the Logos. This word had several meanings: writing, truth, the ultimate rules governing physics and metaphysics. In simplest terms, Thales sought the “changeless something” from which all change emanates.
In many ways the world of the Mythos, of numerous immortal and changeless gods governing human affairs, “called forth” a search for that changeless One from which all fundamental truths, values, and rules were thought to emanate. Interestingly, this occurred at about the same time that a single God was exalted by the Children of Abraham. More interestingly, Thales’ student Anaximander disagreed with his teacher, who thought this “changeless principle” was water, and asserted it must be apeiron, beyond naming — not too different from the “name” Yahweh, or Jehova, which means nameless.
Most interestingly, however, Anaximander’s students, and their students’ students, diverged ever further in their “dialectical” disagreements as to the identity of that One, thereby generating various Ones, but they ended up accepting that “the way of discovery” must be something all could agree on: Dialectics, systematized conversations, methodical observations carefully recorded — epistemology, the rudiments of logic and science.
The bifurcation of the Logos into ontology, asking “what is?”, and epistemology, asking “how do we know what is?”, was as stable as any two-legged chair until the quest for the One became “trifurcated” with the great preoccupation of the ancient Sophists: “So what? How do we convert knowledge and wisdom into choice and action? How shall we live our lives with excellence? How shall we construct a just society?” This third “leg” was called teleology, and these three in turn “fed back” and changed Logos by converting the Mythos-Logos dyad into a triad: Mythos, Logos, and Nomos.
Mythos, Logos, and Nomos were the first great Trinity of Western civilization, but its begetting required Logos to first generate the trinity of ontology, epistemology, and teleology, and then for ontology and teleology to “feed back” and powerfully enrich epistemology — logic and science — converting part of epistemology into a meta-science, cybernetics, the art of converting wisdom into choice, choice into action, and action into subsequent evaluation and resulting refinements of future choices and actions … especially those choices and actions which Socrates, according to Plato, associated with the art of governance.
Such “cybernetic thinking” was crucial to defining and then enriching Nomos. Note that the ancient Greek verb “kuberne” is embedded in both “cybernetics” and “governance”, and their association originated with Socrates’ analogy to the art of the kubernetes, the helmsman, the pilot, who must integrate knowledge of the changeless (“stars”) with the naturally changing (“winds and waves”) in order to choose whether and how to act with reference to that which is humanly changeable — to alter the angle of the rudder, the trim of the sail. Altering either must feed back into choices affecting the other. This involves a complex kind of thinking, the rudiments of cybernetic thinking; this kind of thinking has itself evolved, of course — coevolved with all other elements of civilization — but understanding the origin of the “idea of governance” as here summarized is essential to understanding modern constitutional theory, and hence to engaging effectively in law reform and legal-education reform in this region.
Cybernetic thinking is “proper to” participatory systems in which what we know and do changes the systems we are embedded in, changes our relationships to them, and changes our concept of “understanding” to require an ecology of reasoning-rich activity, a participatory endeavor spanning time, often spanning generations, centuries, millennia.
Thus, when we talk about the Rule of Law based on the Rule of Reason, we are talking about a special kind of reasoning — feedback cultivating and feedback harvesting, seeking not only the True but also the Good … and then doing something about it, and monitoring the consequences, and refining, revising, improving. We live and learn, as individuals and societies; we plan our further living and learning accordingly; and we see in a good constitutional democracy a fit “learning organism” that enables us to do all this better, securing liberty with justice, wisdom with will.
Law is “science” only in the astonishing sense that we humans are engaged in a long-term “controlled experiment” testing whether the evolution of intelligence — and of the capacity to choose based on knowledge, including self-knowledge — is evolutionarily viable. Such intelligence is powerful indeed, allowing us to eradicate all forms of intelligent life on this planet, but also, perhaps, all forms of human mayhem. Perhaps these things should go without saying. Then again, many requisites of “sustainable development” can benefit from explicit identification. Especially at this time, in this region.
The curriculum of AUA’s Department of Law must inform and inspire. Our students must find a basis for hope, for without it this region will not be viable. This hope must be based on genuine confidence born of genuine competence — the capacity to combine and embody the quest for Truth with the determination to find, and do, the Good.
2. Isonomia, parent of demokratia and of modern constitutional democracy
The earliest systematic expositor of Nomos was the pre-Socratic law-giver Solon, whose “first law” was isonomia: general law governing future conduct and binding all citizens equally. The most precious possession of an Athenian citizen was his possession of Athenian citizenship, guaranteeing him equality of liberty with all others — and therefore imposing equality in the restrictions upon liberty.
Isonomia was the parent of demokratia, for if we are equal under the law we should be equal in the making of law, equal in our political and civil rights. This “seed idea” in the Ecology of Mind regarding the fundamentals of constitutional democracy has coevolved with other seed ideas, including the fundamental premises of ontology: that there must be a hierarchy of sources for any “law” worthy of Nomos, and that even if the highest values of “liberty secured by justice” are not literally changeless (although some might be) none should be changed without compelling reasons. To the extent that law must limit fundamental liberties, it must seek the “least restrictive” means, bounded by “higher law” constraints such as are found in competent constitutions. According to this hierarchy of sources, constitutional law is superior to legislation and legislation is superior to administrative rules and procedures. But all these are “below” the highest values of law, including that often-unarticulated major premise of Nomos.
What is it? First, it must lie deep within individual consciousness, and deep within the mindscape of a law-based state. It consists of this “individualized” conviction: That to be “fully human” I must be “reasonably free” — bounded by the Rule of Law based on the Rule of Reason. Put differently: To be the best “me” I can be, I must submit to limits on my freedom that allow others to be their own best “me” — and this submission composes reciprocal rights and responsibilities.
Humans differ from animals in our capacity to stand in each other’s shoes, to see how the world looks from others’ perspectives, and to recognize the inestimable value for each of us — and for civilization generally — arising from that “ordered liberty” which allows each of us, applying our own unique knowledge and capacities, to follow our bliss and … tinker in our garage to produce that next-generation work of genius, thereby enriching future generations.
This “institutionalized reciprocity” of liberty under Nomos, isonomia, calls to mind Lincoln’s famous observation that, as he would not be a slave, so he could not be a master of slaves. Most people treasure their liberty for what it allows them to do; it takes deeper insight to treasure “liberty as such” for what it allows others to do … things we cannot ourselves do, symphonies we cannot ourselves compose, wisdoms we cannot ourselves bring to adequate articulation, systems of governance that Solon could not possibly have imagined … but which perhaps we can, and perhaps must.
Our students find all this interesting, challenging, inspiring, partly at least because it is a powerful antidote to the “mentality” in consequence of which — 2,500 years after Solon — the USSR had neither isonomia nor demokratia.
Our students want to do battle with that “Soviet mentality” — and they know they must fight smart!
3. Historical origins of government under law, and the isolation of Byzantine and Russian “legal culture” from the Western Legal Tradition undergirding constitutional democracy
Several centuries after Solon, the Roman statesman Cicero claimed that isonomia was also the “first law” of ancient Rome. Subsequently, Roman law abandoned this principle. Much of Roman contract and tort law, for example, hinged on the identities of the parties: aristocrat-aristocrat, aristocrat-plebian, plebian-plebian, etc.
Equality under the law was “rediscovered” in that great synthesis of Greek philosophy, Roman law, and Judeo-Christian-Islamic learning that started a millennium after Cicero, in Bologna. This is often referred to as a synthesis of the best elements of the Greek and Roman civilizations, but by the end of the first millennium “religious learning” also played a crucial role: if we are equal before a just and loving God, then surely we must be equal before the law — especially where, as the Bolognese believed, all true law flows from a divine Source that can be “known” by both Faith and Reason.
All the students at Bologna in its early years were professional clergy who saw themselves as mediators between humanity and divinity; the profession they invented, that of lawyer, naturally came to play a similar “mediating” role — between citizen and state … or, eventually, between citizens in relation to their common law, their isonomia.
This synthesis of Athens, Rome, and Jerusalem gathered momentum throughout Europe, as new universities were founded and branched into fields like theology and philosophy, and this “awakening” eventually led to the Renaissance. From the standpoint of law reform, this synthesis was perhaps most significant (a) in systematizing law and legal studies, and (b) in starting the process of undermining Justinian’s dogma that the emperor — indeed, the government — is above the law. The most powerful weapon against this Justinian innovation was the concept of “natural law” which, originating in Athenian Nomos, became a major constituent of the “definition of law” that developed from this Bolognese wedding of Athens and Rome, Christianity playing Cupid.
Let us delve deeper: Following Christendom’s disappointment that the long-awaited “Second Coming” — establishing the Kingdom of God on Earth — had not arrived after 1000 A.D., there was a formal separation of Eastern Christendom from Western Christendom in 1054. In many ways the West looked up to the East, to Byzantium, although already by mid-century we can see that the West was overtaking the East intellectually. Of greatest significance for this Report, the East was far less fragmented and it still operated under Justinian law, whereas the West was restless, in growing intellectual ferment, and Justinian law had been inoperative for several centuries. The closest the West had to a single legal system was early canon law, the law of the Western Church. This included penitential law, which was widely taught to clerics — primarily though casuistry, essentially the case-law method.
Around 1075, Western Christendom, under Gregory VII — the powerful Hildebrand of Tuscany, who had declined offers of the papacy four times over the prior 20 years — initiated a “revolution” intended to make the West more like the East by imposing “Christian law” upon all secular princes. By “Christian law” the West (somewhat vaguely) meant Justinian law, for Justinian (483-565) had been a great Christian emperor. This “revolution” — turning back to an earlier, glorious era — was the first true revolution in the West, initiating a fundamental change in … almost everything: politics, theology, and philosophy, of course, but more — it inadvertently invented the modern Idea of Progress (ironically, considering its initial goal); yet, above all, this revolution led to invention of a “concept of a legal concept” which did not exist before, whether under the Roman empire or (apparently) anywhere else. The Romans had many kinds of contracts, as suggested, but they never had the concept of a contract as that “concept of a concept” was developed at Bologna and thereafter.
Pope Gregory VII (1073-1085) sought to “make” a new Kingdom of God on Earth based on Christian law. But where was such law to be found? Gregory’s ally Matilda of Tuscany (so the story goes) reminded him of a law museum under her control in Bologna, and shortly after 1080 this museum became the nucleus of a law school that initiated not only “Justinian rediscovery” but also “Aristotelian rediscovery” … and “rediscovery” generally. Around 1087 this nascent law school hired Irnerius (1060-1125) as a teacher. He was a pioneer. His method of instruction was not unlike that by which penitential law had been taught — the case method — but he also relied on “putting arguments” and making students debate for and against various propositions, with special emphasis on examining the canons of Justinian law that seemed to conflict with the Bible and the writings of the Church Fathers. It was this focus on systematic argument that made Bologna receptive to the “Aristotelian rediscovery” that might have been “in the air” at its founding but definitely “got off the ground” with Abelard around 1117.
This Bolognese synthesis of Athens, Rome, and Jerusalem had many elements, including (as noted) converting some of the clerics — the educated class — into professional lawyers. An initially unintended consequence was that many Bolognese graduates eventually used their training to support the interests of secular rulers against the Church. More importantly, however, these lawyers started a process of bringing both Church and State under “natural law” — an idea, as we have seen, rooted in the ancient Athenian Nomos: the Rule of Law based on the Rule of … a special kind of reasoning.
Indeed, the professions of “lawyer” and “judge” were invented by that synthesis. Roman law evolved by essentially “common law” processes, case by case, but these processes were not driven by judges. Legal disputes were resolved by arbitrators trusted and chosen by both sides; these arbitrators did not ordinarily have much knowledge of the law; for that, they relied on the jurisconsults, scholars who kept track of evolving legal principles and aided the law’s development through their “professional literature” of commentaries. These scholars did not ordinarily represent parties in disputes, and were not in that sense lawyers.
Now, Justinian is credited with creating a “code” of civil law (law essentially governing private disputes), but in fact this famous work was not a systematic exposition so much as a collection of the writings of those jurisconsults whom his compilers found most useful. Interestingly, in addition to emphasizing his royal prerogative — that he was above the law — Justinian forbade all further commentaries. His work was perfect, complete. The dearth of knowledge we have about pre-Justinian law is largely due to his decree that vast amounts of historical material — mostly legal commentaries — be burned once his Project was complete. One cannot help wonder whether this man really understood what “law” — properly understood — is all about.
At Bologna, Irnerius and his successors “disobeyed” Justinian. They brought legal commentary — and the concept of law based on systematic inquiry — to a higher art than ever before. They “corrupted” Justinian law through systematic inquiry, thereby turning a collection of laws into a system of law — not Roman law but canon law and the foundations of that “romanized” common law which would become the European Jus Commune. Despite the subsequent development of national legal systems — first in England (whose legal system was far more influenced by that “romanized” law than is generally appreciated) and then in France, Germany, and other European states — this Bolognese synthesis, upholding fundamental principles of law-based governance, lives on within the “deep consciousness” of all Western legal systems.
In Byzantium, on the other hand, “pure” Justinian law was obeyed, commentaries remained forbidden, and new imperial legislation was piled onto old without the “systematization” characteristic of the Western Legal Tradition.
Transported to Russia, Byzantine law became an ever more tangled “collection” — albeit, over time, much Russian law was secret, unknown, unknowable even from one emperor to the next. It was a “collection” that could not even be collected, let alone systematized and codified! When, two centuries ago, Speransky was told by the Russian emperor to codify Russian law — “but don’t change any of it” — he despaired. He could not even find half of it!
Russia was just beginning to become influenced by the Western Legal Tradition when the Russian Revolution made a new religion of … Party over law. Whereas Russia really never had law, properly understood, the Soviet Union actively warred against any conception of law recognizable as being based on … what the Nomos was, let alone has become.
Unfortunately, like so many Soviet victims, historical truth-telling — the idea that accurate history matters — died. It must be reborn. As the Soviet-era saying went: History is unpredictable. But now, with the USSR’s demise, genuine history is doubly precious.
We dwell in this “needs assessment” upon this specific historical era — when the Western Legal Tradition started — not only because of its intrinsic importance to legal theory but also because it played almost no role in this post-Soviet region’s history and development. The roots of this problem go far deeper than merely “Soviet times”; in that sense “Soviet mentality” stands for historical processes at work long before Lenin. The problem might better be termed “Byzantine mentality”.
It is tragic. It is real. And it must be remedied. “Ordered liberty” depends for its lifeblood on that truth which makes us free. Not that other historical truths and eras are unimportant; much of importance happened under the rubric “Western Legal Tradition” during almost a millennium of subsequent development. All of that is important. But, for reasons stated, its origins are especially important. Here. Now.
4. Beyond mere democracy
Far too much is made of “democracy” and far too little attention is given to the requisites of “constitutional democracy” — even though experience shows that perhaps the worst enemy of “democracy” is incompetent constitutional and intellectual foundations. Competent foundations reach deep into history; wisdom comes slowly, with many backward glances; we live and learn, as individuals and societies.
And what we learn from the history of constitutional democracy is that it is imbedded within coevolving concepts, values, and institutions originating in the quest for “ordered liberty” secured by “justice” — secured by isonomia. Again, isonomia is not merely anything called “law”; it must be prospective, general law. It must bind all citizens equally. And it must be based on good reasons, or at least not arbitrary whim.
These foundational concepts linking freedom, security, justice, and democracy can only be touched on here, but they should compose a recurring theme — as the foundations of constitutional democracy — in any law curriculum in this region. They are driven home most powerfully, however, in light of the next theme.
5. The continuing grip of the Soviet Theory of State and Law, and the need for a new post-Soviet paradigm
One of the first courses (often the first) studied in law schools throughout the Soviet Union, and still studied by entering students in post-Soviet law schools, is the famous Theory of State and Law (TSL). Students are assured that “every country” understands and adopts the fundamental goals and institutions of law and government set forth in the TSL. Not surprisingly, during Soviet times the TSL did not give a whiff of attention to liberty, equality under law, and the need for an independent judicial branch to determine facts and apply law without fear or favor; the TSL did not mention the necessity for free and fair elections; and it was bereft of the history of constitutional democracy and the fundaments of the Rule of Law.
But what of today? What is taught as the ruling paradigm governing “state and law” more than a decade after the Soviet Union collapsed? Apparently the leading text thereon, by Khropaniuk, dated 1997, is essentially a recitation of the doctrines taught during the Brezhnev era, a slight improvement over those taught during Stalinist times but still bereft of any awareness of the problem — the many problems, starting with the questions: What of liberty? What of the coevolved ideas and institutions of modern constitutional democracies?
While, unfortunately, no systematic study has been made of post-Soviet legal education in the former USSR, it appears that the TSL remains dogma throughout the region. When our Associate Dean lectured on this subject at Yerevan State University in 2001, he was confirmed in his long-held impression that law students and their teachers remain unaware that the TSL — originating with German legal positivists in the 1920s — was long ago abandoned in the West.
It goes without saying that this is a huge subject. Our students must understand it … including why values essentially taken for granted in “open societies” were absent in the Soviet Union.
6. The French connection
One often hears in Armenia and this region: We follow the French civil-law model in asserting that “law” to be legitimate must be “positive law” that resides in documents called constitutions or statutes, etc.; law does not reside in judicial interpretations and decisions, etc; our courts do not pay attention to prior judicial decisions covering similar questions; that only happens under the common law. We are a civil-law country.
Unfortunately, far too many American legal advisers throughout this region, including teachers who ought to know better, parrot these and related gross misunderstandings of French law and modern civil-law reality — thereby reinforcing the ignorance of those in this region who know so little about the “French model” that they have no inkling how little they know … and how damaging this ignorance is.
But our LL.M. and M.C.L.S. graduates are capable of mounting a powerful attack upon this woeful and dangerous ignorance. Through our instruction, they know that French courts do in fact pay close attention to prior judicial decisions. And they know that the answer to the question “Where is the Constitution of France?” is that many important elements and institutions of French constitutional life are not touched upon in the document called the Constitution. Similarly, our graduates know that most of what in the United States is governed by its Administrative Procedure Act is governed in France by case law, while most of French tort law and much of its other substantive law has also been created, in effect, through case-by-case evolution.
Why is it valuable, whether to a “professional” LL.M. degree holder or an “academic” M.C.L.S. degree holder, to discuss “French legal reality” in detail? Why should our students be bothered about the history and role of that important body, the Conseil d’Etat of the French Republic, regarding which the document called the Constitution of France is so uninformative? Are we preparing our students to practice law in France?
No, we are preparing them to build law in Armenia and this region. To build with excellence, they need to know many things — and the connections between and among those things — relating to France, if only because leading Armenian law professors, legislators, government officials, judges, and other opinion leaders have propped up a “false model” to which they pay obeisance based on crashing ignorance. Here, literally, the truth can set a nation free. Liberty under law in this region cannot take root and thrive without information-rich soil, without detailed and inspired “truth-telling” that drains vast swamps of ignorance.
7. Interpreting Armenian legislation and finding Armenian law
Our students are introduced to numerous problems of statutory interpretation, and almost any discussion of this subject — and of determining “what is the applicable law” more generally — requires addressing issues that involve “mentalities” and “dogmas” of this region which would not have to be countered, or even addressed, in a typical American law school. The status of higher-court precedents in America is completely different from their status in Armenia and this region.
The dogma taught in post-Soviet law schools is that “case law” is not law. Obviously, we challenge that dogma.
An American law school curriculum does not have to challenge that dogma because, in contrast to the teenagers commencing “law studies” in the post-Soviet region, the college graduates commencing “undergraduate” legal studies in the United States arrive well aware that the study of judicial opinions will be a major part of their work during the next three years. Even foreign students imbued with civil-law notions commence their LL.M. studies in the United States aware that judicial precedents are a source of law.
In short, our students come to us with very different “mentalities” from those of students arriving at American law schools. And, obviously, the skills, competencies, and “outputs” we seek to impart have to be based on changing those “mentalities” by carefully presenting better alternatives. Our program has to be different from an American program in graduate legal education. That does not make it bad. What is bad is believing that it should not be different.
Professor Maggs, mentioned earlier for his role in the LD/LRC’s founding, recently co-authored a major “needs assessment” of legal education in the Russian Federation, completed in March, 2003. This study was prepared for USAID, and is not generally available. It addresses the “stagnant atmosphere” of legal education, the Ministry of Education’s curriculum “straitjacket and other barriers to innovation,” and the dogmatic method of instruction in which students are never challenged to reason critically, etc. It asserts: “Only through the study of case law is a student able to display independent thinking and the ability to critique the positions of the judge, defense, and plaintiff.” And it notes that the worst law teachers defend themselves by saying that Russian law is based on the German-Roman model, which denies the value of case-based law.
Not entirely incidentally, one wishes this study (a) had pointed out that the origins of Russia’s legal system are not quite that simple, and (b) had noted that German lawyers and judges do in fact pay close attention to prior case law and — unlike the French — are happy to admit it. Indeed, Germany’s judicial opinions, especially those of its Constitutional Court, are becoming increasingly discursive, argument-rich, reflective. Sometimes they include dissents.
European and “civil law” courts generally are issuing increasingly discursive and well-reasoned decisions, and many explicitly integrate issues of statutory construction, social utility, economics, and practical administrability, etc., into persuasive opinions that are easily accessible and often cited in subsequent litigation. This development is healthy.
But news of it has barely penetrated post-Soviet legal education. Our students will help remedy matters. What is needed is a “virtuous cycle” in thought and action, ideas and institutions, in which changes in mindscape or “software” encourage changes in landscape or “hardware” that allow further changes in “software”, etc. Being able to point out what is working well elsewhere, and why, can be of inestimable value here.
8. Teaching best practices
Our students study comparative law not merely so that they can get good jobs upon graduation “doing deals” with transnational implications, although some might … and it is unlikely that the person on the other end of the phone in Tokyo, Rome, or Amsterdam will care whether our graduate has an LL.M. or an M.C.L.S. degree, so long as her English is clear and her understanding is solid. But that is not the main focus. Rather, we focus on such “best practices” as a means of introducing our students to the coevolving legal landscapes and mindscapes essential for local, domestic law reform — to help Armenia and this region become integrated into a world of competent, law-based institutions and practices.
Undergirding all our efforts is our attempt to illuminate the evolving Nomos. Everything we do is directly or indirectly related to battling Soviet, indeed Byzantine, approaches to the questions: What is law? How do we — lawyers, judges — determine what is “the law” applicable to a specific dispute, such as whether a wheat shipment conforms to the contract or whether the president can trump legislation — trump the constitution — with a mere decree?
The more satisfactory answers there are to each legal or constitutional question — that is, the more stable, competent, and predictable the legal landscape and mindscape are — the fewer issues must be litigated. Where law is unknowable or incompetent, disputes proliferate, and they must be resolved either through a “crap shoot” of unsatisfactory litigation or through strong-arm methods, government under patronage, or sheer corruption.
The LD/LRC is here to help our students and all allies of constitutional democracy and law-based governance to find, and pursue, a better way.
9. Best teaching practices
As suggested earlier, with reference to text associated with Footnote 8, we have previously addressed what is “American” at AUA’s Law Department: not the substance of the law taught (although U.S. law is an important component of any worthy curriculum in comparative law) but, rather, the method of teaching. We eschew the sterile, dogmatic, lecture-based teaching so prevalent in the post-Soviet region (it is also far too prevalent elsewhere, especially in “civil-law” countries) and instead we champion a teaching method that typifies American law schools — the so-called “case method” — although, as earlier noted, that method is not all that different from the casuistry or case-based argumentation pioneered by Irnerius in Bologna and employed (with reference to teaching canon law, especially penitential law) before the University of Bologna’s founding.
Now, case-based teaching is obviously needed here, as emphasized in the above-referenced study of legal education in the Russian Federation (see text associated with Footnote 39). Less obviously, our method of teaching is itself a crucial component of the “outcomes” we desire for our students. Perhaps it goes without saying, but if our “message” is the coevolving stuff of liberty under law, etc., then the “medium” for imparting it cannot be autocratic, brooking no dissent, discouraging questions that interrupt the Great Professor in mid-stride … albeit too often he will be mumbling words essentially dictated by the Ministry of Education.
All this is part of the larger “message” we address to our students’ heads and hearts, that law reform and legal-education reform in this region must become deeply interpenetrative and that our alumni, individually and together with other reformers, must fight on both fronts — competently, passionately. And this interdependence is crucial to that “largest message” we started Part Three with: that the ideas and institutions of constitutional democracy have coevolved as part of a “Conversation of Democracy” which must not be banished, dumbed-down, or corrupted, whether by governments that trash freedoms of expression and association, etc., or by teachers who frown on vigorous debate in their classrooms.
Giving our students hope that is based on confidence which, as previously suggested, must itself be based on competence — on genuine, albeit unmeasurable, accomplishments — is an “output” that is hard to “benchmark” and impossible to attain if one scorns or rejects “consciousness raising” as central to our task. To the extent that WASC’s accreditation guidelines fail to appreciate these medium-and-message, law-reform-and-legal-education-reform, and head-heart linkages, those guidelines must be revised.
10. Integrative jurisprudence
In this Part Three we have identified and discussed numerous interdependent elements — historical, philosophical, jurisprudential — which are precious in their own right but also serve as proxies for so much more, all of it important to our inquiry.
This Report has sought above all to focus on connections among those elements, and the importance of honoring and fostering competencies that integrate analysis and synthesis, seeing how parts are related to wholes while also seeing how, ultimately, the “whole” of liberty secured by justice is not merely the sum of its parts.
Arguably, American jurisprudence has become unbalanced, over-emphasizing “analysis” while short-changing “synthesis” to the detriment of healthy Rule of Law progress, and civilization generally, worldwide. Arguably, the West must self-correct if it is to remain a worthy model for study and emulation; indeed, obviously it must; it goes without saying. Our law faculty should be as competent in identifying and addressing the flaws of American and European legal systems as they are at “engaging” with this post-Soviet region. But the “outcomes” associated with our quest for even-handedness of this kind are not only hard to define and measure, they might also run afoul of American-education biases — perhaps blindnesses — that WASC officials and others should themselves be challenged to engage in “self assessment” about.
This provides a good example of ways in which observing something might change it and, whether for good or ill, might change the observer too. While the short-term effect of the Soviet Union’s collapse has been “triumphalism” in the West (and much of it is justified), future historians might find good cause to record that this collapse allowed — perhaps encouraged, possibly required — a healthy process of self-examination by the Cold War’s victors. If some of our alumni, using “outcomes” gained from their studies here, can go on to contribute to that wider global self-examination, then the West’s investment in law reform and legal-education reform in this region will have been rewarded in ways not anticipated by those who developed the “needs-assessment” guidelines we are struggling with.
The fact is, at least part of our curriculum has aimed at accomplishing just that. For example, students in Law 101, entitled Introduction to Jurisprudence and the Western Legal Tradition, have been exposed to various critiques of American and European jurisprudence — focused especially on the need to balance and integrate the various schools of jurisprudence, particularly legal positivism, legal realism, law and economics, “natural law” jurisprudence, and historical jurisprudence. It is easy to “benchmark” and test for the “outcome” of being able to provide a description of each school. But that tests something trivial. Arguably, testing for such trivial attainments broadcasts the “message” that the mutual enlightenments and connections among these schools can be safely ignored. But, on the contrary, those connections constitute the very most important “much of a muchness” that we seek here to illuminate.
PART FOUR – “PROFESSIONAL STANDARDS” FOR WHAT?
As argued in this Report, and notwithstanding the “global perspective” emphasized immediately above, the key goal suffusing our entire curriculum is to provide our students with the means of becoming leaders in building an informed consensus within Armenia and throughout this region regarding the interpenetrative elements of law reform and legal-education reform that are so essential for sustainable development in a region where law, properly understood, has never really existed.
Questions abound: For what “profession” are we preparing our students? What “professional standards” must our students meet? In Part Three we sought to illuminate some of the many interpenetrative “Rule of Law competencies” needed by our students, this region, our world. How can we measure whether those competencies have been achieved? Might accreditation officials accept all the above as sufficient evidence that we know what we are doing here, and let us proceed with our pioneering work unmolested?
Or should we instead offer a conventional needs-assessment, supplying “benchmarks” and “outcomes” that are easily measurable yet arguably secondary or trivial, ignoring the “important stuff” because it is unpalatable, unconventional, or otherwise problematic?
At what point does “buying into triviality” in such matters become positively harmful, irresponsible, unprofessional? Suppose that we have not yet plumbed the extent to which those conventional “benchmarks” and “outcomes” are … fatally trivial?
The subjects discussed in Part Three are important, but they also serve as proxies for much more, none of which is unimportant. Most important, as already emphasized, are the connections among these important elements — historical, theoretical, practical — within any viable village, city, country, and, indeed, world. How tall must we stand, how tenaciously must we fight, to maintain the integrity of the mission that brought us here? Questions, questions.
One hopes that the attentive reader, while acknowledging that much of this goes without saying — or, in this case, asking — will nonetheless see some benefit from this effort to articulate relationships, dilemmas, and perhaps trilemmas which must ultimately remain beyond what words can convey.
As the medieval Nominalists proclaimed, whether with reference to the study of ancient texts or the articulation of goals worthy of a hopeful, striving humanity, the map is not the territory, the blueprint is not the mansion, the name is not the thing or relationship named, and the “constitution” of Progress can only be pointed to, denoted, as the starting point for further discussion, action, inquiry, analysis, synthesis, and meditation upon what works and what really matters. Note that this use of the word “constitution” points to its true nature: not a thing, but a verb. Not a document but a “recipe” for something surpassing words. Don’t write telling how good that cake tasted, or about its sublime texture; send me the recipe, and I will follow it and “know” what you were trying to tell me about. And then, I might improve upon it.
The most important “outcome” we can seek is that the students in our LL.M. and M.C.L.S. programs will be propelled into adulthood aspiring to become lifelong students … yes, of ordered liberty and law-based governance, of course, but also of intelligent life reflecting upon itself, transforming itself, renewing and reinvigorating civilization. Why not? They never got much of a “liberal education” in their undergraduate law studies — despite the fact that almost half their courses were not in “law” by any definition — yet the stuff of “liberal education” is largely the stuff of those connections among the details of “real law” that convert it from mere words on a page to Nomos, the evolving recipe for mindful governance that secures liberty with justice.
Does all this mean we do not care whether our graduates get good jobs? Far from it. Anyone glancing through our curriculum, available on the AUA web site, will see that our graduates, whether receiving an LL.M. degree or an M.C.L.S. degree, obtain a broad-ranging exposure to comparative constitutional and administrative law; comparative and international law governing corporations, commercial transactions, and free and fair trade; and instruction on subjects as diverse as intellectual property law, E.U. law, human rights law, and public international law. Additionally, we emphasize “skills training” in contract drafting, legal advocacy and argument, and negotiation and mediation.
Obviously, those of our LL.M. students who thereafter pursue careers as lawyers and judges, etc., will have a competitive advantage as “law professionals” over those in this region who have not had systematic exposure to the subjects covered in our curriculum . And just as obviously, we believe, those of our M.C.L.S. graduates who seek positions in the governmental and NGO sectors, in private business, and in teaching, research, and consulting, etc., will never regret the two years they spent at the LD/LRC. Our graduates so far are almost unanimous in their praise of our program. They believe that their studies here will hold them in good stead for the rest of their lives.
But our graduates are no less adamant that their work here was aimed at improving their country and region. They did not come here to be “conformed” with the current reality but to be “transformed” — and, hence, to be able to participate intelligently, knowledgeably, and powerfully in the transformation of Armenia and this region.
One final point: There have apparently been rumors of suggestions that our Department of Law should be merged with, or perhaps into, the Department of Political Science. We merely point out in response to any such suggestion that (a) our Department has, in effect, been endowed as a law school by the Congress of the United States of America, and (b) nobody has ever seriously suggested that the ideal of “government under law” should be transmuted into “government under political science”! Political science has its place, as do all the sciences. Indeed, the stuff of political science supplies especially valuable “scientific sustenance” for the law. But, as science swallows logic whole and then moves beyond, so law swallows science whole, transcends it, and becomes art — as this Report shows: the art of the pilot, the kubernetes, the cybernetician. Lawyers know little about cybernetics, unfortunately, even though theirs is the quintessential cybernetic calling.
The Rule of Law based on the Rule of Reason is a worthy goal in its own right. Liberty under Law must stand on its own three feet.
CONCLUSION – PROPOSED MISSION STATEMENT
The WASC accreditation process requires the Law Department to find and formulate a Mission Statement. That “finding” requires looking in places ¾ ancient and modern, practical and theoretical ¾ that have not, so far, been well illuminated, due partly to an institutional bias among too many educators that favors “benchmarks” and “outcomes” that tend to trivialize what is, in stark reality, one of the profoundest challenges facing our world: building security based on justice, liberty founded upon the Rule of Law.
Accordingly, this Report proposes the following Mission Statement:
The Department of Law at the American University of Armenia teaches comparative and international law to students — both lawyers and nonlawyers — who wish to help build and sustain law-based governance in Armenia, this region, and the world. We seek to impart the best standards of law and legal education so as to empower our graduates to practice law successfully, if they are lawyers, and to contribute to advancing the Rule of Law whether they are lawyers or not. Our goals and programs focus on a region that is making the transition from dictatorship to constitutional democracy, from centrally-planned economics to free-market alternatives, and from previous human servitude to a future blessed by freedom, justice, and equality under “world class” law.
 The concept “Rule of Law” is not self-defining. As will become clear, illuminating this concept is an important goal of the AUA Department of Law; less obviously, perhaps, illuminating it is also a necessary objective of this Report.
 The word universitas first referred to something like a guild or corporation, a “one” formed of many. Around 1088 A.D. it was used (possibly invented?) to denote, indeed to alter, the “citizen-status” of Bologna’s law students, who were to be drawn from throughout Western Europe but — to facilitate their journeys — needed “universal” citizenship rather than the citizenship of their countries of origin so that they would be less likely to be kidnapped in foreign lands and held for ransom for the debts of their “non-university” countrymen. At least, that seems to be the best explanation for the origin of the concept. This issue, like many pertaining to the period under consideration here, is clouded in historical and linguistic fog.
 As here discussed, this museum contained Justinian law, which had not been operative law for several centuries in Western Christendom. It was, however, operative law in most of Eastern Christendom, whence it traveled to Russia as “pure” Justinian law, unaffected by the great synthesis and systematization of Greek philosophy, Roman law, and Christian “natural law” concepts that originated the Western Legal Tradition. As discussed later, “natural law” became the great weapon against Justinian’s assertion that the emperor — the government — is above the law.
 Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (1983). The author of the present Report did extensive research with Professor Berman regarding this subject in 1976, and has done further research since. Aspects of this subject remain quite controversial. But Berman’s central thesis regarding the origins, elements, and significance of the Western Legal Tradition — as set forth in this Report — is beyond serious dispute.
 Enacted law, such as the actual words in a constitution or in a parliamentary enactment, usually contrasted with the law and legal principles found in judicial decisions, customs, “natural law” based on Faith and Reason, and scholarly writings. See discussion at Footnote 12. As detailed in this Report, a major task of the LD/LRC has been to illuminate what constitutes “law” in various legal systems. For example: Are highest-court judicial interpretations of statutes “law”? A superb discussion of the values and limitations of legal positivism, integrating it with natural-law theory and historical jurisprudence, appears in Harold J. Berman, Toward an Integrative Jurisprudence: Politics, Morality, and History, 76 California Law Review 779 (1988).
 Perhaps the first general statement of this thesis, much-discussed four decades ago, appears in Vera Micheles Dean, The Nature of the Non-Western World (1957, rev. 1965). For example, at page 34: “The anti-Westernism that Westerners find difficult to understand in the Middle East and Asia had been a marked characteristic of the Russians long before Karl Marx wrote Das Kapital or Lenin seized power through soviets of workers and peasants. The Russian people have been affected little or not at all by the ideas of ancient Greece and Rome in philosophy and law. Their concepts of religion and of the relationship of the church and state were inherited from the Christianity not of Rome but of Byzantium. … Nor was Russia affected by the Renaissance and the Reformation, which powerfully molded thought and action in the Western world. The English, French, and American revolutions were not a part of Russia’s experience.” Dean does not seem to have appreciated, however, the significance of what is a central theme of this Report — that the influences of Greece and Rome as such were less important, in this context, than was the influence of the synthesis, a millennium ago, that gave birth to what we call the Western Legal Tradition. The author of the present Report is unaware of any published discussion of the significance, to current post-Soviet law reform and legal-education reform endeavors, of this region’s historical isolation from that Tradition. Correspondence on this point would be especially welcomed.
 Students typically commence work on this “law diploma” at age 16, and typically take four years to complete this work. As discussed in this Report, the substance and methodology of instruction is highly inadequate — devoid of the fruits of the Western Legal Tradition — being based essentially on the “Soviet mentality” of the Brezhnev era.
 KIMEP became degraded in later years, subjected to intense pressure from President Nazarbaev. Indeed, the lecture series was suspended in late 1996 following Johnson’s lecture criticizing presidential “constitution-making” that led to a governing system judged by both the (soon-dismissed) Chairman of the Constitutional Court and Johnson to greatly frustrate democratic progress in Kazakhstan.
 Barnabas D. Johnson, Rule of Law: Ten Principles Governing Law and Law-Making (1998).
 The School of Law at the University of California, Berkeley.
 Professor Lon L. Fuller of Harvard law School was one of the earliest and most trenchant opponents of “legal positivism” (referring to exclusively posited or “written” law) — the notion that law is essentially whatever those with a monopoly of coercive power ordain, so long as it is published and self-consistent. This theory, most associated with the writings of Hans Kelsen, had arguably provided the bulwarks of “law” under Hitler and Stalin, although in fact both relied on secret “laws” and inconsistent edicts. A main premise of Fuller’s pre-war critique of legal positivism was that much of the law — genuine law, not mere dictat — is unarticulated, indeed unarticulable, “contained” in ethical, customary, and historical “territories” which can never be adequately “mapped” in documents like constitutions, statutes, and administrative regulations. Some of the most precious values, indeed, “go without saying”; yet Fuller spent much of his life trying to articulate those “unarticulable” premises. His book, The Morality of Law (1964, rev. 1969), is the basis of the essay cited in Footnote 1O.
 Participatory systems like civilizations are synergistic, not causal; they are self-referential systems, tending towards self correction, self governance, self organization and transformation. The behavior of any complex participatory system is “unpredictable” based on even the most complete knowledge possible of the behavior of its constituent subsystems. This is partly because, as later discussed, the act of “understanding” any system one is imbedded in necessarily changes it, changes one’s relationship to it, and therefore changes further understanding, including the nature and purposes of “understanding” as it applies to participatory systems. Conventional sciences cannot comprehend participatory systems, which is why so many economists are so often wrong in their scientific predictions; indeed, an economy is too complex to be understood in any conventional sense. The “unconventional science” of cybernetics — from whose Greek root we also get “governance” — becomes a more useful instrument, not because its answers and predictions are more correct but because its questions and “predicaments” aspire to something less trivial … and more humbling. One implication here is that “conventional assessment” protocols, even if useful for most academic departments, are of limited use for a department whose goals include law reform and legal-education reform — an obviously “participatory” and hence cybernetic enterprise.
 As important as these are, they serve here primarily as “proxies” for many similarly-important concepts.
 As Aristotle pointed out, things have to be significantly similar in order to be usefully contrasted.
 The concept of “change agents” is a favorite of AUA’s president. With reference to the goals and programs of the LD/LRC it seems especially appropriate.
 The Greek word here translated as “art” was techne, and refers to those things humans make using skill, reasoning, intelligence. Aristotle wrote extensively on this subject, and is our main source of understanding the evolution and ecology of ideas leading to the concept of governance as an art — honoring but transcending science as science honors but transcends logic.
 The phrase “sustainable development” appears in AUA’s Mission Statement, which the accreditation guidelines say we must keep at the heart of our needs-assessment endeavors. That Statement asserts: “As an institution of higher learning, the American University of Armenia provides teaching, research, and service programs that prepare students to address the needs of Armenia and the surrounding region for sustainable development, in a setting that values and develops academic excellence, free inquiry, scholarship, leadership, and service to society.” That statement has been criticized because it seems oblivious to what is arguably the single most important challenge here — nurturing liberty, isonomia, without which economic and other development will not be “sustainable” or, arguably, possible.
 A superb compilation of recent scholarship on this subject is Josiah Ober and Charles Hedrick, eds., Demokratia: Conversations on Democracies, Ancient and Modern (1996). One is struck by how much more seems known now than was known recently about the origins of Nomos, isonomia, and demokratia. But one is also struck by how many points remain shrouded in linguistic and historical fog.
 Granted, only men could be citizens, and Athens had many male non-citizens, including foreign citizens and slaves. But, give credit where it is due: Not only did the ranks entitled to citizenship grow (Solon extended citizenship to the hoplites, foot-soldiers), but among them a powerful idea took hold: equality under the law.
 This hierarchy is often not observed in Armenia.
 Of course, the modern law applicable to a contract might also depend on the identities of the parties. Contracts between merchants often implicate special elements not present in contracts among non-merchants. But the law does not change depending on the “social status” and hence “legal status” of parties.
 This concept of the clergy had developed during the Cluniac reforms two centuries earlier.
 It was a late addition to the Justinian corpus, apparently, creating a sharp division between “public law” and “private law”; this innovation was especially pronounced in Russian and Soviet law, supporting the dogma that ordinary people ought not to be considered on an equal footing with the state — for example, in a court of law.
 The term “Second Coming” is problematic. Judging by the vast cottage industry of writings thereon (most based on “literal interpretations” of ambiguous ancient texts, usually in modern translation, such as the New Testament’s Book of Revelations), the phrase is usually interpreted today to denote the End of the World — arguably something one would not look forward to with pleasure. Yet the issue here is not what today’s enthusiasts of Armageddon, etc., think, but what Western Christendom’s leaders thought in 1000 or (recalculating, as is common among invariably-disappointed prophets of the Second Coming) 1033. As to that era’s views, there is considerable controversy among serious historians. Suffice it to say that those medieval leaders of Western Christendom were looking forward to something they welcomed: Christ’s “return” to establish the promised Kingdom of God on Earth, itself a “return” of sorts to a previous Golden Age. What is of greatest interest, however, but cannot be explored here, is the evident change from a stance of “passive waiting” for, to “active making” of, whatever the Kingdom of God on Earth was thought to mean. This change implicated fundamental concepts of the proper relationship between humanity and divinity in the processes of “regeneration” — a subject which the word “synergism” initially referred to. Arguably, the modern definition of synergism — see Footnote 13 — remains more deeply imbedded within that ancient definition than is generally appreciated.
 In the West, theologians tried to understand the Trinity; in the East, they were content to adore it in communion with the Saints. In the West, theologians looked forward to a “Kingdom” which, in the East, already existed wherever two or three were gathered together in such communion.
Already in 1050, Damiani railed against the “new learning” (hints of later Nominalism?); forty years later, Roscelin was tried for heresy (definitely Nominalism, but from where?); and in 1117, for the first time in Western Christendom, Abelard “recognized” — in scraps of thitherto-unknown Aristotle from Islamic Spain — that the “old learning” about Aristotle, the Teacher for centuries, was flawed. This “new Aristotle” led to a revolution in thought, Nominalism — essentially, asserting that the name (nomina) is not the thing named, or (in modern parlance) “the map is not the territory” (see text associated with Footnote 42). The name or word on the page “points to” or denotes something ultimately beyond language, names, mappings. Nominalism greatly liberated textual study, whether of the Bible or of Justinian … or of Aristotle himself. But where did that “infection of new learning” come from in 1050, or possibly earlier? Nobody knows. It did not infect Eastern Christendom, which slumbered throughout this era.
 It was outside Matilda’s castle at Canossa, in 1077, that Henry IV (later to be Holy Roman Emperor) waited in the snow for three days seeking Gregory’s pardon for opposing — essentially — the idea of papal supremacy over secular rulers. One can imagine Hildy and Tildy inside, before a warm hearth, hatching their idea of bringing all Western Christendom under “Christian law” based on Justinian’s soon-to-be resuscitated Roman law: “Hey, Hildy, you remember that law museum in our fair city? I have an idea: Let’s start a law school, and attract students from all over Europe. I’ll give them “universal” citizenship, thereby reducing the likelihood that in their travels they will be captured and ransomed to satisfy the foreign debts of their countrymen. They’ll belong to Bologna’s universitatus. I’ll call it the University of Bologna!”
 Rediscovery was “in the air” and it is impossible to say where it came from. It seems linked to the great disappointment among Western intellectual and spiritual leaders about what did not happen in 1000.
 Since Abelard did not know Greek, while his beloved Heloise apparently taught herself Greek, it is likely that the key to Medieval Man was a woman.
 See Ditlev Tamm, Roman Law and European Legal History (1997), especially 24-25 and 62-63.
 This “Aristotelian rediscovery” was largely based on the superb scholarly work of Arabic and Jewish scholars in Spain, whose commentaries — including legal commentaries — were of enormous significance to early Western scholarship. Talmudic commentaries were quite advanced in many ways, by this time, but they focused on the details of religious observances; they did not address issues of “general law” and governance, apparently.
 The TSL focused (and still focuses) on “interior” and “exterior” functions. The interior functions include the state budget, focused on enhancing the economic development of the country; the reduction of unemployment; the social protection of citizens; the improvement of public health and public infrastructures (transportation, water, sewage, electricity, gas, etc.); and law enforcement, especially the “struggle against infringement of laws” (but without discussion of whether the government is itself governed by law). The exterior functions include “maintaining mutually beneficial relations with foreign countries” and “defending the country against aggreession.”
 Indeed, insufficient attention has been given to post-Soviet higher education generally. A recent World Bank report states that this “sector” is the most corrupt throughout the region. Arguably, based on the current author’s anecdotal evidence, post-Soviet legal education is the most corrupt segment of that sector. While that subject is beyond the scope of this Report, candid acknowledgement of the corruption suffusing legal education in this region can hardly be divorced from consideration of the legal landscapes and mindscapes which this “needs assessment” process must address.
 This issue goes far beyond the observation that when this 1958 Constitution was urged upon the people its main champion, Debre — speaking for President de Gaulle, essentially its author — asserted that the 1958 Preamble was not part of the Constitution, and, hence, the documents there mentioned, including the Preamble to the 1946 Constitution and documents there mentioned, were also not part of the 1958 Constitution. And this issue goes far beyond the fact that Debre also said the Conseil constitutionelle (Constitutional Council) was not a constitutional court, yet — starting around 1971 — it increasingly acted like a constitutional court, commencing with its decision that the 1958 Preamble is indeed part of the Constitution, and hence the 1946 Preamble allows the Conseil to invalidate current parliamentary enactments as inconsistent with whatever prior parliamentary enactments it considers more “fundamental” within the constitutional scheme. The reasoning the Conseil uses in order to do something that the U.S. Supreme Court could never imagine doing — using old legislation to invalidate new legislation — is astonishing! And welcome, in its own strange way. But this issue goes far beyond all that. And it is instructive for all countries that say they follow the French model.
 This is not to suggest that the United States and France treat “precedents” the same way; even England and the United States have historically differed considerably in their understanding of what “case law” means, and still differ; in general, the courts of the world are converging in this regard, developing a “hybrid conception” of case law to which our students are introduced. Needless to say, this is a huge and vitally-important subject, a good example of coevolving ideas and institutions.
 Arguably, “course of dealing” can come in through the back door, via the Code of Civil Procedure, as an evidentiary question rather than a rule of substantive law — except that commercial matters are (arguably) best resolved in the new Commercial Court according to the (apparently planned) Code of Commercial Procedure. As obvious from the discussion, above, important elements of “commercial law” are contained in the Civil Code. It is unclear whether “commercial procedure” or “civil procedure” applies to them.
 This is the highest “appellate court” in Armenia and, for example, France, except that cassation courts are not “appellate courts” as this concept is understood in the United States. See generally, Sofie M.F. Geeroms, Comparative Law and Legal Translation: Why the Terms Cassation, Revision, and Appeal Should Not Be Translated, 50 American Journal of Comparative Law 201 (2002).
 This document is available for inspection at the AUA Department of Law.
 See, generally, John Henry Merryman, The French Deviation, 44 American Journal of Comparative Law 109 (1996).
 We are partial to John Honnold’s treatment, which accompanies each element of CISG with discussions, examples, case summaries, and problems for further inquiry, etc.
 While “the map is not the territory” is a phrase attributed to Korzybski, the basic idea originated with Aristotle and was greatly advanced by Abelard and the Nominalists.
 This assumes that they and their law-reform allies can succeed, incrementally, in improving law-based governance in this region.
2005 Note on the Idea of Progress: The deeper one searches for “origins” the further back into the mists of time they seem rooted. This is the case with the Idea of Progress. A superb work on this subject is Robert A. Nisbet’s book, The Idea of Progress, which is available here. Consider the following passage from the subsection entitled “Roman Philosophers on Progress”:
“Perhaps the greatest description (in the sense of a systematic and developed awareness) of human progress to be found in all of ancient thought is the Roman Lucretius’ On the Nature of Things written in the first century B.C. It is an Epicurean account of complete sciences — astronomy, physics, chemistry, anthropology, psychology. In very modern fashion, Lucretius explains the beginnings of the world through atoms in the void forming clusters which then become tangible matter, and the eventual development of the world with all that grows and lives on it. Book V of this general evolutionary treatise is concerned solely with mankind’s social and cultural progress. It commences with primitive man living naked and shelterless, dependent upon his cunning and ability to join forces with other men in order to find safety from larger and more predatory beasts, in constant fear of the elements. To assuage this fear mankind generally formed religions for mental protection, and step by step (pedetemtim progredientes) advanced to huts, then to houses and ships, diverse languages, the arts and sciences, medicine, navigation, improvements in technology, making for an ever richer existence. And, Lucretius is careful to tell us, despite the grandeur of all that man has achieved on earth through his own efforts, the human race is still in its infancy, and even greater wonders may be expected.” (Go back)
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