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Interview with CESL Visiting Professor Wolfgang Däubler
Last Modified:  2012-04-25 13:20:39
A Comparative Perspective on Chinese and German Legal Education

Dr Wolfgang Däubler is a German professor specialising in labour law. After teaching in Bremen Law School for nearly 30 years and at the Beijing Foreign Studies University, Däubler is now a visiting professor at CESL. Professor Däubler kindly agreed to an interview with CESL students on the differences between legal education in China and Germany.

Question: A law school’s teaching methodology and curriculum reflect the demands of the legal profession. What is the ideology of legal education in Germany?

A young lawyer should know our very complicated legal system, especially case law. This includes an ability to understand and interpret new laws and new court decisions. The most important quality is to apply the legal rules to concrete cases. During the 1970s, this was criticized as being too narrow-minded: Lawyers should include social consequences when applying the law. He or she should do it in the spirit of realizing the values of a democratic state and a civil society. Some universities followed this new approach. Professors advocated interpreting, for instance, labour and constitutional law in an alternative way, in the interest of the workers. Nowadays, under the influence of conservative predominance, which relates to political developments, legal education has returned more or less to the principles of the 1960s when the law as such defined the limit of thinking.

Question: According to your observations what do you think are the similarities and the differences in legal education in China and Germany?

Well, I do not think that in China there is so much concentration on the solution of cases. You learn more about society as such and the position of the law in it. I find it good, for example, that there is a course on "legal ethics”. But I would not be surprised if you had bigger difficulties in dealing with concrete cases. Of course, one does not and should not exclude the other. As far as I know there are no classes on drafting contracts in either China or Germany. This is a pity. Only judges have to concentrate on cases to be decided. But a good law firm does much more counselling, negotiating, and drafting contracts or agreements. Why not prepare this at university too? Education does not sufficiently reflect this practice yet.

Question: China uses the national university entrance examination to examine academic aptitude from the end of high school. Good grades mean admission to university to pursue, for example, a law degree. And if you want to obtain a further degree, you probably have to take a graduate admissions test. So exams play an important role in the Chinese system. What is the structure of legal education in Germany?

If somebody has passed an exam at the end of the high school, he or she is entitled to go to university and chose a subject. There are no “entrance” examinations. There are always vacancies for candidates who aim to pursue a career in the legal profession. Only in a few fields, such as medicine, is there a lack of university places.

Law students study four or five years, some of them even six or seven years. During the first three years, students foster a solid basis in subjects such as civil law, public law, and criminal law. The 7th and 8th semester are specialized in certain fields, for instance commercial law, administrative law or labour law. You need “credits” like in the CESL, but the main point is the so-called state exam at the end of your university studies. You have to solve eight cases, with five hours for each case. They are even more complicated than the judgements federal courts of the last instance have to write. You normally need some good ideas to come to a convincing solution; in most of the cases it is not sufficient just to know what the courts have decided.
After the exam, there are two years of internships – at different courts, at a law firm, at the administration. You learn how to act in practice and further develop your qualities – the university does not always teach what a lawyer needs. As I said, in a law firm you should be able to draft a contract and be perhaps a good mediator between two parties; knowing only case decisions you would not be able to perform such work. At the end of the internships, there is a second so-called state examination. It is concentrated on cases, too. If you pass it, you are entitled to be a lawyer in a law firm and you can be nominated to be a judge.

Question: I see that the state examinations play a vital role in the German legal education system. In China, students also have to take an examination organised by the Ministry of Justice to become a lawyer or a judge. Passing this examination is a compulsory prerequisite for obtaining a lawyer’s license. Please could you explain the process of becoming a lawyer or a judge in Germany?

Well it’s also compulsory to pass the state examinations if you want to be a lawyer in Germany. In each state, or "Land" (comparable to a Chinese province), there is a committee consisting of professors, judges and civil servants. The committee designs the cases and brings them into a coherent and well structured examination to test all of the desired areas. Students are normally allowed to sit the examination twice. Failure on the second attempt ends the student's legal career. A great majority of students will attend training courses by repetitors outside universities to prepare for the state exams. These courses may be very long, and last about two to three years. In general there’s no big difference between the first state examination and the second one. Although the second asks more practical questions of high complexity.

To obtain a high mark on the exam, a kind of creativity to solve certain cases is demanded from students. Can a contract be cancelled if one partner is neither threatened nor cheated, but put into a very disagreeable situation? Good memories and a stable psychological condition are additional unofficial qualifications to pass the exam. You can only use the text of the law to solve the problems in the case; no other book or database is permitted. And students are normally quite anxious and often have slept badly before going into each five hour examination. In the oral exam which follows the written part, you can hardly perform well without psychological stability.

Question: Another difference between legal education in China and Germany is law degrees. Can you give some introduction to the practice in Germany.

In Germany, LLM programmes are not really established for young German lawyers. Programmes of this kind exist and give students the chance to specialize in a certain matter. In Bremen, we have a programme taught in English and German about EU law. This programme attracts especially foreign students, for whom a German LLM may be very important in their home country and improve their chances of finding a good job. In Germany itself, the state exams are the essential points.

If you want an additional formal qualification as a German, you will write a doctoral thesis and acquire the degree of a Doctor of Laws (Doctor iuris). However, to be eligible you have to be among the top 15 % in one of the state examinations and find a professor who will supervise your thesis. The normal way is to participate in a seminar of the professor and show your qualification and your interest in research. But the relationship between the professor and the doctoral student is rather different from in China. As a rule you meet two or three times within two or three years to discuss your problems. The personal situation plays no role. After my retirement, I changed my behaviour in spending much more time with doctoral students. In some cases we became good friends and in all the cases the scientific result was good. Each year I supervise around three doctoral students, and am quite happy about this.

If one wants to become a professor, the doctorate is a kind of first phase. You should write a lot of interesting articles, afterwards, and normally a book which should be a “step forward” in your scientific field. But it takes a long time before you are nominated professor. If your opinions are too far from the mainstream you may have difficulty in becoming a professor.

Question: We live in a globalized world and legal education has become increasingly international and transnational. The popularity of obtaining a foreign LLM or JD degree for Chinese law students is a good illustration of this point. What do you think is the impact of globalisation on legal education?

Yes, the impact exists even in Germany. But it takes a long time before a law faculty changes its programmes. Take for instance private international law. To understand this subject, it is extremely useful to judge cross-border contracts or other cross-border legal relationships. But in the most German law faculties this type of exercise plays only a marginal role, if any, in the teaching programme.

Only since 2001 was some knowledge of English required of young lawyers, but in practice that is not taken very seriously. It can easily happen at a university that you offer a speech in English held by a foreign professor, but no students will come.

On the other hand, there are good programmes like “Erasmus” sponsored by the EU which permit students to spend a semester in another EU Member State. Some of the students do it because it gives an additional qualification that is useful when applying for a job at a firm, especially those with an export business. But I have some colleagues who have never left the German speaking territory –not even as tourists. To have a look into other legal systems and other cultures is always a matter of relatively small minorities. My impression is that in this field we could learn a lot from Chinese professors and students.

Question: You taught at Bremen Law School for many years. After retiring, you then taught Comparative Labour Law in China. In your opinion, what is the biggest difference between German and Chinese Law School students? Do Chinese students work harder than their German counterparts?

Yes, they do. This year, I had courses on Monday and Friday afternoon and everybody came. In Germany, on Friday afternoon, perhaps 10 to 15 percents of the students will come.

That does not mean that German students are lazy. Law students are not charged tuition fees. But renting a room or an apartment and buying food are quite expensive. That’s why many students have a job, for example as taxi drivers or at McDonald’s, which of course consumes a lot of time. Among law students, there is also a curious thing professors normally do not like to mention: a high percentage of students do not participate in many courses. They learn to solve cases in private courses with so-called repetitors having often higher didactical qualities than most of the university professors. The students pay for private courses, whereas university is free. My impression is that you take things more seriously if you have to pay for it. But this system makes it even more difficult to have a look behind the frontiers of law.

Another factor is that Chinese students live on the campus. If everybody around you is studying, you do not like to be the exception. In Germany, you normally live in town and you are integrated into normal life.

In my experience, the most important difference is that Chinese students are interested in a lot of things. I receive a big number of questions here, not only on law, but also on society and the future of China. Students have the “curiosity” that is the base for scientific progress.