Teaching Foreign Customary Law: Tips and Tricks

By Susan Gualtier

Researching foreign customary law can be a difficult process, so it is no surprise that many FCIL librarians struggle with how to teach this topic to law students.  Nonetheless, in my experience, it is a topic that students enjoy and that most have not previously encountered.  I was fortunate enough to experience the customary law research process as a student in the Georgetown University Law Center’s Women’s Human Rights Clinic in 2002, which included a fact-finding mission to Tanzania funded by a USAID grant.  My participation in the clinic was a life-changing experience that I was happy to revisit when I entered the law library profession in 2011.  However, teaching customary law in a classroom setting, without the opportunity to work with and speak to people who are subject to these laws, presents some challenges.  Having now taught this topic at both Louisiana State University, as part of my own FCIL research course, and at the University of Pennsylvania, as a guest lecturer, I offer the following thoughts on how to approach teaching this difficult topic.

  1. It is difficult for students to visualize customary law systems. Because most students will not have traveled to countries with customary law systems, and almost certainly will not have done legal work there even if they have visited, it can be difficult for them to visualize the customary law process, or even the people to whom customary law applies.  The wide variety of countries and regions practicing customary law, as well as the variability of customary law itself and of those who apply and enforce it, can also make it difficult to imagine and to explain.  I believe that it is important not to make customary law sound too “primitive” or to stereotype those to whom it applies.  I have found that photos (of courthouses, villages, or local attorneys, for example) can help illustrate the larger context in which customary law is applied.  If the course schedule provides enough time, a well-places documentary like Invoking Justice can help students to visualize customary and other unfamiliar legal systems.
  2. Some students will struggle to recognize customary law as a legitimate legal system. While the topic of customary law has generally been well-received by my students, I can remember two or three who struggled to accept that customary law is a fully formed type of legal system on par with common law, civil law, and religious law systems.  I believe that this stems from either the tendency to view customary law as primitive or outdated, or the objection to customary laws as necessarily discriminatory.  Both can be discussed in the classroom while at the same time emphasizing customary law’s depth and complexity as a legal system.  While customary laws can indeed be discriminatory, I have found that a thoughtful discussion of how they can be discriminatory and of why specific laws developed the way they did refocuses the students’ attention on the complexity of customary law systems and of the customary law research process.  It also helps to point out the history of customary law in Europe and how it affected and grew into the common law and the earliest civil codes.
  3. It helps to offer a case study. When I taught customary law at LSU, I had the luxury of giving the topic an entire class session, which allowed for a more in-depth discussion of customary law in practice in addition to an overview of the research process and resources.  As background reading, I asked my students to read a law review article, Tamar Erez, Inheritance Law in Tanzania: The Impoverishment of Widows and Daughters, 7 J. Gender & L. 599 (2006), describing the work of my women’s human rights clinic at Georgetown.  Articles offering case studies on customary law research are in abundance in databases like HeinOnline.  Though I have in the past assigned an article relating directly to my own experience, I did so because I could speak to it with first-hand knowledge.  More recent articles, and articles on a variety of different countries and regions, are certainly available.  Even without class time to discuss a case study in detail, offering one as background reading can help the students to approach the lecture with the beginning of an understanding of how customary law is practiced in real life.  As an alternative, a case study can be offered as suggested reading for any students who find the topic of customary law interesting or who wish to explore it in their final projects or in their writing seminars or clinics.

    GoT Meme

  4. It can help to include a pop culture reference. I like to use the Dothraki in Game of Thrones.  While we do not see a tremendous amount of their legal system in the books, and even less in the tv series, we do repeatedly hear reference to rules and laws of Dothraki life, followed by characters stating that “it is known.”  A simple meme has been enough to offer a visual for those of my students who have read the books or watched the show.
  5. The students will have to use their imaginations. Realistically, most research students will never encounter customary law in their doctrinal classes or in practice.  This does not mean that it is not worth teaching.  However, some allowance will need to be made for the fact that they are not going to have the experience of interviewing people about how the law is applied on the ground.  Nonetheless, I try not to limit my research problems or examples to the narrow topics that they might encounter as practitioners here in the United States, or that they can research in their entirely using secondary sources.  Asking them to imagine the questions they would ask or the obstacles that they anticipate in the research process can be as instructive as having them locate concrete sources.
  6. A solid in-class or take-home assignment can make or break the class. A good research assignment in customary law will encourage the students to imagine on-the-ground research, as well as to find useful sources from their own location, which helps them to see that customary law topics are approachable and able to be researched.  I generally revert to a human rights question, because I have the most experience there, and because it is generally interesting to most of my students.  For my first customary law lecture at Penn, I used the following problem as a post-class assignment, which combined elements of both customary and Islamic law:

Imagine that you are part of a small group of human rights attorneys and are just beginning a project involving intestate succession in Kenya.  Your project will focus primarily on the inheritance rights of women and of children deemed to be “illegitimate.”  You will eventually be traveling to Kenya on a grant-funded fact-finding mission, but for now, you must gather as much information as possible on the country’s legal system, the laws in force, and the application and enforcement of those laws.

Create a research plan that will allow you to begin drafting a report on which to base your fact-finding mission.  Which sources will you consult?  Which issues do you think will need to be fleshed out through interviews or other research when you arrive in Kenya?

If you have time, look at some of the websites that we have discussed and try to find some preliminary information on both the religious and customary laws in Kenya and how they treat questions of inheritance.  Identify, if possible, any issues that you think may arise from Kenya’s mixed legal system.

This problem allowed the students to explore all of the potential sources that I had covered in class, as well as to imagine real-life factors that might complicate the laws’ application, identify possible research difficulties, and begin brainstorming questions for interviews or for additional research based on what they found during their preliminary searches.  When putting together research problems, I often start with the U.S. State Department’s Human Rights Reports, which frequently identify human rights issues arising out of customary law.  I then build my problem from there to incorporate other resources, as well as any complicating real-life factors or relevant statutes or international issues, if I am going to include them in the problem.

  1. Much of your teaching can take place while giving feedback. The feedback phase is a chance to see what the students have absorbed and the sources to which they have gravitated, and to offer additional insight into the complex area of customary law, particularly when it comes to possible next steps beyond secondary source and internet research.  When I assigned the above research problem, I let the students know that it was complicated and asked them not to spend more than approximately one hour on it.  The students all did very well, and all identified a majority of the sources that I expected them to find.  However, the feedback phase was a valuable opportunity not only to highlight the easy-to-find sources that we covered in class, but to talk about some sources that were more difficult to find.  I also discussed how these sources could help the researcher to identify potential problems with application, enforcement, and choice of law, and to anticipate questions that would need to be explored during future stages of the research process.  (For a copy of my written feedback on this assignment, please feel free to contact me directly.)

Customary law may be a difficult topic to approach as a research instructor, but I believe that students enjoy it and that it should be included in any class that purports to cover foreign legal research.  I have had a surprising number of students choose customary law topics for their final projects in my research courses, always with great success.  I hope that this post will build upon recent AALL programming and existing guides on customary law research, and help my colleagues to approach this topic not only as researchers, but as instructors, as well.

If you are interested in customary law, please join the Customary and Religious Law Interest Group (CARLIG) on My Communities.  We look forward to hearing your thoughts and questions!

Sounds Good in Theory: An Initial Foray into Reading Primary Law in French and Spanish by Examining Constitutional Provisions

By Katherine Orth

In my previous post in the Acquiring Foreign Languages series, I provided a mid-semester progress report of my “French for Reading” and “Spanish for Reading classes.”  At times, I’ve found it difficult to balance the coursework for these classes with my self-designed FCIL supplemental practice tasks.  I decide to start reading primary law in small, manageable increments by focusing on a few specific constitutional provisions of Francophone and Hispanophone countries.

Exams are Looming

I work in an academic law library.  Every year without fail, more students fill our reading room as soon as the calendar page changes from October to November.  The students arrive earlier in the morning and stay later in the evening.  Over the course of the day, their laptops become increasingly surrounded by class notes, flash cards, and study aids (not to mention water bottles, coffee cups, and food wrappers).

After I graduated from law school, I thought I was finished with the grind of exam preparation.  Yet I now find myself preparing for the Foreign Language Proficiency exams in French and Spanish that await me later in November.  Like the law students, my desk has a teetering pile of class notes, assigned readings, and study aids on it.  Like the law students, I enter November with a bit of trepidation.

Cursed with Living in Interesting Times

I’ve already encountered some aspects of legal terminology in French and Spanish, first by reading children’s guides to lawmaking in foreign jurisdictions, and later by reading United Nations Security Council Resolutions.  I’m eager to start reading primary law in French and Spanish, but I’d like to take it in small, manageable pieces.

Julienne Grant’s recent thought-provoking post on DipLawMatic Dialogues provided the seeds of inspiration for my next FCIL research practice task.  In describing the Catalonian referendum and the subsequent forceful response by the Spanish government, Julienne highlighted the constitutional arguments emanating from both Madrid and Barcelona.

Article 155 of the Spanish Constitution authorizes (subject to legislative approval) “all measures necessary” against acts taken by an autonomous region that are “seriously prejudicial” to the national interest.  This Article – which has been described as the “nuclear option” – got me wondering about how many of the world’s constitutions have similar provisions, and what kind of language is utilized in these provisions.

Take it From the Top

ConstituteThere are over fifty countries that have either Spanish or French as the national language.  Some of these countries, such as Canada, have dealt with questions of secession in recent years.  For my “Article 155-type” search, I’m making use of the website Constitute, an initiative of the Comparative Constitutions Project.  Constitute is a platform that enables the researcher to conduct full-text searches across national constitutions through word and phrase, or subject matter searches.

Constitute provides annotated, unofficial English-language translations of the world’s constitutions.  In my previous tasks, I’ve gone straight to the original Spanish- and French-language documents.  This time, I conduct searches within Constitute — by terms and phrases, and by using the topic filters – in order to seek out the provisions in English.  Later, I’ll examine the provisions within the original French or Spanish constitutional texts, focusing on the language that different countries use to describe the rights and obligations of both governments and citizens.

For this task, I’m not concentrating on the substantive content of the constitutional provisions.  Instead, I’m searching for and parsing out subtle variations in word usage.  The task is so engrossing that I periodically find myself losing focus from exclusively French- and Spanish-language returned results.  For example, when a keyword search of “autonomous” returns results including the constitutions of China and Spain, I was very tempted to compare the pertinent provisions from those countries’ constitutions.

In Other News . . .Screenshot-2017-11-6 News in Slow French Learn French Online

Reading foreign languages can be tiring, particularly when my concentration (or motivation!) is at a low ebb.  When this happens, I try to ease the strain by visiting websites that combine listening and reading practice.  Every week or so, I check out the News in Slow Spanish and News in Slow French websites.  Listening to a news story or commentary on current events while reading the accompanying French- or Spanish-language transcript is both informative and relaxing.  Translations appear by hovering the cursor over the text, eliminating the need to rely on context or consult a dictionary.  These sites are primarily subscription-based, so free content is limited, but they are updated every week.

Regular study and practice is essential at this point in the semester.  Keep calm and carry on!

New FCIL Librarian Series: So Much to Learn and Do

By Jessica Pierucci

This is the first in a series of posts documenting my first year as a foreign, comparative, and international law (FCIL) librarian. I started in this newly-created role at the UCI Law Library in July 2017. The aim of this series is to document my year in the hope of inspiring aspiring FCIL librarians to join the field (and hopefully not scaring them away!) by discussing one librarian’s experience entering the field.

i_law_books_1I have officially been an FCIL librarian for nearly four months.  Diving in headfirst as a new FCIL librarian, and the first FCIL librarian at the UCI Law Library, I keep discovering how much more I want to learn and do in this position. This first post will cover some of the first major things I’ve done in this position as I become aware of everything I have to learn and start to bring my vision for the FCIL librarian role to life.

Before starting this position, I took advantage of opportunities to familiarize myself with FCIL research. In my prior role at the UCI Law Library, I took on a number of research projects requested by faculty on FCIL topics. I also joined groups where FCIL librarians congregate, such as FCIL-SIS and Int-Law, to start hearing the buzz from librarians worldwide. As time permitted, I also spent some time with background resources such as GlobaLex, Foreign Law Guide, ASIL ERG, law school created FCIL research guides, and books on FCIL research. All of this helped me prepare for my new role, but I knew I was only scratching the surface.

Just after my appointment as an FCIL librarian, I attended the 2017 AALL Annual Meeting in Austin, Texas. I attended every FCIL-related meeting or session I could find to kick start my entry into the field. Meeting FCIL librarians across the country, hearing about their work, and attending FCIL-focused sessions was a fantastic, whirlwind orientation. I learned about their experience teaching FCIL research, creating guides and reviews of FCIL resources, selecting resources, promoting the FCIL librarian community, and other endeavors. I left the conference further inspired to implement my vision for FCIL librarianship at the UCI Law Library. i_law_books_2

As soon as I returned from the conference, I put my inspiration to work. This fall semester, UCI Law welcomed the inaugural class of its L.L.M program. The program focuses on American Law and is designed primarily for lawyers trained outside United States. In anticipation of their arrival, I created a new research guide for international L.L.M. students. Along with a primer on legal research tools, the research guide provides an outline of key library services for students and information on materials developed specifically for international L.L.M. students. I then used this guide as part of a library orientation for the new students, which included discussion of the use and culture of law libraries at law schools in the United States.

I also started working with the law school’s Jessup International Law Moot Court team. My first step over the summer was to work with the team’s faculty advisor and the library’s head of collection development to ensure Jessup students would have access to foundational international law treatises and texts. At the beginning of the fall semester, the Jessup team requested a training on relevant legal research techniques. This was an exciting opportunity for me to dive into teaching public international law research. Preparing for this training afforded me time to become more familiar with a variety of print and online resources. This work informed my updates to the Jessup research guide. I very much enjoyed meeting with the Jessup team and look forward to working with Jessup students more this year and in the years to come.

I’m excited by the opportunities that already arose to use and grow the library’s FCIL services and for the future opportunities to develop this position. By the time this post is published, I’ll be in the midst of my first IALL Annual Course hosted this year in Atlanta, Georgia. I can’t wait to see what new inspiration this conference will bring!

Organizing and Participating in the “Open Access to Legal Knowledge in Africa” Workshop in Uganda

By Heather Casey

uganda2This past December, I had the privilege of traveling to Kampala, Uganda and assisting with a workshop on Open Access to legal knowledge in Africa. It was for law librarians in Anglophone Africa. The workshop was organized through the International Federation of Library Associations (IFLA), in cooperation with the International Association of Law Libraries (IALL). It was sponsored by IFLA, IALL, and HeinOnline.

I was one of several organizers – with me were Mark Engsberg (Emory University), Joe Hinger (St. John’s University), Caroline Ilako (Markerere University), Sonia Poulin (Alberta Law Libraries), and Bård Tuseth (University of Oslo). Over the course of several months, we worked to bring together a group of African law librarians that came from the following countries: Uganda, Ghana, Kenya, Cote d’Ivoire, Nigeria, Zimbabwe, Tanzania, and South Africa.

Our goals for the workshop were to empower participants to utilize the potential of open access legal sources in legal research. The workshop offered a method to build a network of law librarians across Africa in order to share knowledge and assist each other in solving practical legal research questions. Participation provided an overview of open access legal sources worldwide, the practical skills required to benefit from them, and an opportunity to establish contact with colleagues from different countries.

uganda1One essential component of the workshop was for every participant to give a presentation. Most were 5 minutes long and organizers spoke from 15 minutes to 45 minutes on various topics with Q&A sessions afterward. Our reasons behind having every participant give a presentation were several; first, it encouraged each participant to plan for the workshop and guaranteed active participation. Second, each participant shared information on the legal research environment in their jurisdiction, which allowed for other participants to learn more about jurisdictions outside their own. It also assisted with networking, as each presentation allowed participants to better acquaint themselves with one another. Getting up in front of their peers gave each participant a chance to exercise skills in public speaking that they may not have otherwise used over the course of the two-day workshop.

We also had three breakout sessions where participants were gathered into small groups to foster discussion. Organizers joined in at each group table to act as facilitators for the small group discussions. After 45 minutes to an hour of discussion, the entire workshop group would come together and people from each group would relay their group’s findings.

As organizers, we wanted to ensure that participants would continue to contribute to a network for African Law Librarians. To that end, we established several online forums after the workshop for participants and organizers to engage in virtual and practical collaboration with international colleagues. The forums included:

So far the email chain and WhatsApp groups have been very vibrant. Participants continue to reach out to one another to discuss resources and let one another know what is happening in their jurisdictions. The website has been good for exchanging slides from the workshop and members have discussed what they would like to further do with the website.

We are excited to see this group continue in its efforts to further the goals of the workshop and look forward to further collaboration with members of the workshop. The experience was unforgettable and one I personally was truly honored and humbled to take part in. It was also very enjoyable to visit Uganda and learn more about the vibrant culture there. I look forward to visiting again.

Antiquarian/Rare Books Vendors and Dealers: Foreign and International Law

By Lyonette Louis-Jacques

domesday-book-1804x972For those building special collections of rare law books, here is a list I compiled recently after a call for suggestions to the AALL FCIL-SIS (Foreign, Comparative, and International Law) and LHRB-SIS (Legal History & Rare Books) e-Communities, and the INT-LAW (International Law Librarians) listserv. Thanks especially to Mike Widener, Andreas Knobelsdorf, and Jonathan Pratter for suggesting names of antiquarian vendors/dealers/publishers, etc. of foreign, comparative, and international law rare books. Please send any other suggestions or updates to me at llou@uchicago.edu).

Here is the list:

Sometimes FCIL rare books are sold through auctions via Bonhams or Doyle.

Mega-catalogs or rare book search pages for identifying rare FCIL titles include AbeBooks.com, viaLibri, ZVAB (Zentrales Verzeichnis Antiquarischer Bücher), WorldCat, and KVK – Karlsruher Virtueller Katalog (you can limit your search to the Buchhandel = Book Trade section). You can use these sources to check if a law title is unique or owned by few law libraries.  You can check these sources or digital libraries or commercial databases directly to see if a rare law book you own has already been digitized (if you’re thinking of special digitization projects).

For tracking the literature related to FCIL history, it’s useful to regularly review the Bulletin of Medieval Canon Law which includes an annual bibliography of essays and books) and “Orientamenti Bibliografici”, a bibliography coordinated by Rosalba Sorice with contributions from Manlio Bellomo, etc. published  in the Rivista Internazionale di Diritto Comune.

You can enroll in Mike Widener’s course for training in law rare book collecting. It’s a Rare Book School class called Law Books: History & Connoisseurship. He teaches it every two years or so. A reading list is available. Mike’s most recent law rare books class was in June 2016 and covered Roman, canon & civil law in addition to Anglo-American law. Bill Schwesig reported on this year’s class in the summer 2016 issue of the CALL Bulletin. Susan Gualtier, Teresa Miguel-Stearns, Sarah Ryan, and Fang Wang reported on the summer 2014 class in the March 2015 issue of AALL Spectrum.

It might be also useful for FCIL rare book collection development to check the catalogs and new acquisitions lists of research center libraries such as the Library of the Max Planck Institute for European Legal History (which, BTW, has a great digital library!).

Some of the libraries that have strong collection of rare FCIL book include Yale (including the Library of the Stephan Kuttner Institute of Medieval Canon Law), Berkeley (Robbins Collection on Religious and Civil Law), Law Library of Congress (The Rare Book Collection), and the Peace Palace Library (Grotius Collection). Sharing knowledge with them, generalist rare book librarians, or EXLIBRIS-L subscribers, on FCIL rare book collecting would be important for others new to selecting materials in this area. What are some strong FCIL rare book collections or specialized vendors?

Recap: Asian Legal Information in English: Availability, Accessibility, and Quality Control

By Amy Flick

Because I frequently need to help students find primary authority of other countries, yet have no hope of finding materials published in Chinese, Korean, or Japanese, I was pleased to see a program on Asian Legal Information in English in the AALL Annual Meeting program. I was even more pleased to find the program interesting, useful, and supplemented with handouts.

Alex ZhangAlex Zhang was the coordinator, moderator, and introductory speaker. She started by stressing the importance of good, reliable translations, but noted that even “official” translations by government entities are still for informational purposes only. In presenting the portion of the program on finding primary law of China, she included:

  • The official site NPC (National People’s Congress) Database of Laws and Regulations. The search box is unreliable, so Alex recommended browsing by category, requiring some knowledge of the structure of Chinese law to find the appropriate category. She cautioned that the laws retrieved may not include the dates of coverage, making it unclear for the user if they have the most current version.
  • State Council Laws & Regulations
  • Commercial sources including Lawinfochina, Westlaw China, and Lexis China, all comparable, and expensive, but Alex is most familiar with Lawinfochina. She recommends it for comprehensive coverage and inclusion of the most recent laws, and for a citator link to amendments to laws.
  • Although case law is not considered primary authority in China, a Stanford Law School project is translating Chinese Guiding Cases.

Alex wrapped up by noting that good translation is hard: “the question in legal translation isn’t which one is right, but which one is less wrong.” She suggests comparing and contrasting multiple translations and asking experts for help.

 

Anne Cathrine Mostad-JensenAnne Mostad-Jensen presented on law of Hong Kong and Macau. For these jurisdictions, she stressed that it is particularly important to understand their histories. Because of Hong Kong’s history as a British colony, it has a hybrid system of common and civil law, and English is one of its official languages for legal publication. Sources for Hong Kong legal information in English include:

Macao as a former Portuguese colony has a civil law system. English translation is available for only select legislation and some indexes, not for caselaw, and the translations are not official. Sources include:

 

Juice LeeJootaek “Juice” Lee demonstrated resources on law of the Republic of Korea in English. Although South Korea has a civil law system, it has been influenced by U.S. common law. English translations are not official, but English is widely used, and there are English language versions of most government websites. However, terminology can be an issue because of differences in civil and common law. Most primary sources are available in English, and government publishers try to provide accurate translations. Juice warned that Korean law changes rapidly, and English translations may not keep up. There are also issues with understanding the differences between public, private, and social law. He recommended sources including:

 

Mike McArthurMike McArthur had the final presentation in the program on finding Japanese law in English. Japanese efforts to be more international led to a 2004 Japanese law requiring translation of Japanese laws. Laws are first made available in tentative translation before an “official” version is available. Of course, translations are still unofficial. Mike warned that the Japanese calendar has a different date system, so he provided a “cheat sheet” for Japanese dates.  Sources for Japanese law in English include:

  • The Ministry of Justice’s Japanese Law Translation The database of laws and regulations is searchable with multiple options (title, number, category), and it has a dictionary for finding Japanese legal terms.
  • The Supreme Court of Japan. Although Japan has a civil law system, Supreme Court decisions are relevant, and some are translated into English.
  • An additional resource for Japanese legal research is ministry reports and white papers, which are translated into English, and which include detailed statistics.

Mike reminded the audience, as did the other speakers, that a legal researcher working with foreign languages and translations can get in over their head quickly, and that they should reach out to a specialist for help.

 

All of the presentations in the program were outstanding, and I appreciate the hard work by the speakers in putting them together!

Recap: FCIL-SIS Teaching Foreign & International Legal Research Interest Group Meeting

By Loren Turner

This year, Catherine Deane led and coordinated the Teaching Foreign & International Legal Research Interest Group meeting at the AALL Annual Conference in Chicago, Illinois.  She invited three speakers to present on their teaching experiences:

  • Marylin Raisch shared a screencast, a MindMap, and a visual presentation, as examples of how she and her colleague, Charles Bjork, answer research questions in innovative ways.
  • Alexis Fetzer explained how she, as a librarian without the FCIL title, successfully proposed and taught an FCIL research course at the University of Richmond School of Law. You can read more about Alexis’s experience in the May 2016 issue of the FCIL newsletter.
  • Nina E. Scholtz spoke about her experience in creating an experiential learning course for LLM students. She shared her syllabus for that course and recommended implementing interactive discussion during class to overcome cultural differences.