Post on 25-Feb-2023
Argentinean Legal Education: Curriculum and Pedagogy
Silvina Pezzetta
UBA-CONICET-Argentina
Introduction
When I was suggested to apply1 to participate in this meeting
to speak about my research on a case study of Argentinean
public legal education I first thought of talking, mainly,
about some of its results. But soon after I realized that it
would be more fruitful, and important, to start by speaking
about the context in which legal education occurs. Legal
education concepts “do not travel well”, using the expression
of professor William Twinning2, thus it is a good idea to
describe the context provided by the mass university system
alongside with considerations about the national scientific
research system and its influence on the pervasive model of
legal research. Although many of the attendees will surely
have a general idea about Latin American legal system and
legal education I think the diversity among countries, but
also inside each country, must be explored in order to have a
better understanding of the results of this research
presentation. And by doing this I will be offering the
1 I am absolutely grateful to Elizabeth Mertz for suggesting me to applyand for her generous support to my presentation; I could not have done itwithout her. 2 TWINNING, William, General Jurisprudence. Understanding Law from a Global Perspective,New York, Cambridge University Press, 2009, p. 47.
1
context of legal research which is also important to
understand the deficiencies and flaws of my own work.
This work is divided into two sections. In the first one I
will describe the Argentinean university system and some of
its unique features, such us democratic elections of its
authorities, with the participation of some of the national
political parties, and joint governing bodies, which have an
impact on legal curriculums. Secondly I will depict the
research system since its short life and weaknesses determine
the possibilities of our work. Finally, this first section is
devoted to the pervasive model of legal research and its
relations with the pitfalls of our university and research
system. In particular, I will refer to lawyers’ notion of law
studies as science. In the second part I will show some of
the results of a research I conducted on how law is taught in
the Law School of the National University of Rosario
(U.N.R.). My work followed the previous research conducted in
the Law School of the Córdoba National University, (U.N.C.).
Because research on legal education in my country is scarce I
will start the section with a very brief state of the art of
this topic. To conclude, I will concentrate the attention on
some of the aspects of the research with special attention to
the curriculum and pedagogy analysis following the concepts
of Basil Bernstein’s sociological theory of education.
2
I- Argentinean public legal education in context: university
system, scientific research and the legal dogmatic science
paradigm
University system: collegiate self-government, autonomy and
national political parties
The very particular features of the Argentine university
system deserve special attention in order to provide my
research –that has a very local scope- with a context.
Argentine mass higher education system has some unique
features such as: the elections of its own authorities, which
includes the participation of the national political parties,
and self-governing bodies made up of faculty, students,
alumni and, in some cases, staff members. Moreover, public
university education is free and there are no entrance
examinations or any other barrier than the completion of the
previous educational level to become a university student.
Subsequently our Law Schools are crowed and Law
undergraduates are numerous. In fact, Law is one of the most
popular options in my country3. A typical Law lecture
involves an average of fifty students in a poorly equipped
3According to the statistics of the University Politics Office of theArgentinean National Board of Education,http://www.mcye.gov.ar/spu/guia_tematica/estadisticas_y_publicaciones/anuario.html, p. 48.
3
classroom with scarce capacity, with no heating or air
conditioning and no technological aids. But perhaps the most
relevant feature of Latin American universities is the one
pointed out by José Luis Romero, former chancellor of the
University of Buenos Aires (U.B.A.):
…the Latin American University is an institution which suffers an excessive demand
of different kinds and, because of this, is in a distinct situation from European or
American universities. The latters are exclusively dedicated to education and
research, and society does not expect from them nothing else than these functions
since there are other institutions to fulfill the other social needs. But Latin
American universities, especially after the First World War, have been compelled to
fulfill other goals”4 beyond education and scientific research.
The origin of Latin American universities was the unilateral
administrative acts of the Pope or the Queen to transplant
the institution from Europe. In fact, Latin American
universities were not the product of imitation or adaptation
of the European ones. Thus they did not respond to local
needs. The socio economic context of the colonial society was
so simple that its educational demands were far below the
4 Romero, José Luis, La experiencia argentina y otros ensayos, Ed.Belgrano, Bs. As., 1959, quoted by Krotsch, Pedro, Pensadores y forjadores deuna nueva Universidad: alternativas y retos a la Universidad decimonónica en Argentinahttp://www.riseu.unam.mx/documentos/acervo_documental/txtid0071.pdf. Theidea of the political activist university is also described by AugustoPerez Lindo by using the example of the University Reform but adding theexperiences of the sixties in Berkeley, Paris, Berlin and Brussels,Universities and the Naxalists revolutions in India in the same period.Perez Lindo, Augusto, Universidad, Política y Sociedad, Bs. As., Eudeba,1985, p. 26.
4
qualification provided by universities. Consequently, during
the colonization period the existence of universities was
precarious. The integration of universities into society as
an instrument to solve its problems starts only in the second
part of the 19th century.
The first university in Argentina was the Córdoba University
which was founded by the Jesuits Order in 16145. Its main
objective was to prepare theologians and priests. The first
Law School was part of this university and it was opened in
1791. In this period emerged the unbalance between the two
objectives of the university, to prepare liberal
professionals over to produce knowledge, with the
predominance of the former, which lasts until today.
From the early decades of the 19th century there were attempts
to modernize the university and to transform it into
scientific research centers. These efforts continued during
the century with little success. What is more, these efforts
had to compete with the incipient model called the
“University of Lawyers”6. This model was the product of the
independents movements of the 19th century in Latin American,
the development of economy and the growth of cities,
alongside with the imitation of the European way of life. The
role of the “University of Lawyers” was not only of preparing5 Krotsch, Pedro, Pensadores y forjadores de una nueva Universidad: alternativas y retos a laUniversidad decimonónica en Argentinahttp://www.riseu.unam.mx/documentos/acervo_documental/txtid0071.pdf . 6 Pérez Lindo, Augusto, Universidad, Conocimiento y Reconstrucción Nacional, Bs. As.,Biblos, 2003, pp.54-67.
5
the young generations for the political affairs of the new
republic, but also for the army, the liberal professions and
public administration as well. It was also accountable for
developing the educational system and, in some cases, for
fostering scientific research. Nevertheless, this last aim
was not fulfilled because the social conditions7 were not
suitable for it8.
In the next century, in 1918 to be more precise, the
University Reform took place at Córdoba National University,
Argentine. It was a students’ movement intended to change the
organization of Argentine university. This movement has
established some of the political basis that persists until
today in my country and in every Latin American university
which was influenced by it. One of its goals was to change
the “University of Lawyers” model. The reform established the
core principles and ideology that gives continuity to the period that started with
the First World War and finished in the seventies9 when the Reform cycle
reached an end.
The student’s leaders of the Reform advocated the European
modern ideas that had encountered a strong opponent in the
catholic traditionalism of professors in the Córdoba National
7 Off course that economic conditions are not the only cause of thecharacteristics that education has. This would be a very simplisticexplanation as Bourdieu and Bernstein, among others, have stressed. 8 Krotsch, Pedro, Pensadores y forjadores de una nueva Universidad: alternativas y retos a laUniversidad decimonónica en Argentina.http://www.riseu.unam.mx/documentos/acervo_documental/txtid0071.pdf9 Brunner, José, El desarrollo de la Educación Superior en América Latina, Flacso, Chile, 1990.
6
University. They wanted to renew the faculty -accused of
academic corruption and patronage- and to establish a
university self-co-government including the representation of
students. Furthermore, they promoted the modernization of
teaching methods aimed at highlighting the importance of
science, and struggled to gain the autonomy of the university
from government and powerful groups. This movement strongly
combined its academic goals and the commitment with the fight
for better social conditions and, consequently, stressed the
relations between the university and socio-political realms.
To reach this last objective the reformists consecrated the
“outreach”10 function which was declared one of the duties of
university members. “Outreach” entails providing services to
the community in order to help marginalized, needy social
sectors to improve their situation.
While the reform movement succeeded in accomplishing the
goals of autonomy and the participation of students in the
“self-co-government” body, it certainly failed to transform
the model of the “University of Lawyers”. The University
Reform principles were ambiguous enough to be the basis of
the long lasting student movement and the continuance of its
Manifesto11 as the spirit of the Argentinean Public University
without providing a recipe to change the previous model. The
10 “Extensión” is the Spanish word and the meaning could be translated asthe connection between university members and the society needs. 11 The “Manifiesto” can be seen at http://www.unc.edu.ar/institucional/historia/reforma/manifiesto
7
autonomy principle became a non-arguable condition for the
organization of the universities. However, this principle,
which had been born from the idea of the university as a sage
community that has to be self-organized, became a highly
controversial concept. In fact, legal disputes around it had
to be solved in the Supreme Court and the autonomy principle
was included in the last constitutional reform, in 1994, as a
way to protect universities from government intervention and
to avoid legal disputes. Moreover, the realization of the
self-co-government goal had the unintended consequence of the
participation of national political parties in the elections
of authorities. We will see that both aspects still have a
strong impact on the university organization despite having
been controversial, both to right wing sectors and to the
socialists and radical left movement.
The heroic period that developed under the influence of the
Reform principles ended in the seventies after several
changes, social and political, which transformed the
university once again. The radicalization of politics, the
new role of the university as an instrument of social change
that was proposed by left-wing groups12, the emergence of
private universities, and the exponential growth of the
students and the feminization of the university roll were
major challenges that could not be well encountered by the
Reform philosophical and political principles. But, above12 This was thought as a different model of university. Pérez Lindo, Augusto, Universidad, Política y Sociedad, Bs. As., Eudeba, 1985, p. 26.
8
all, the university was affected by the numerous coup d’état
that turned it in what was called a “degree industry” or an
“exam industry”.
With the return of democracy in the 80’s, the Argentine
university went under several transformations along with the
recovery of the autonomy and self-co-government that it had
lost with every coup d’état which meant the military
intervention of the institution. The neoliberal politics that
prevailed in my country during the nineties promoted a new
model of university, focused on a competence model, the
intervention by the national state, the limitation of the
budget and the new challenge of a new growth of private
universities. In addition, in the 90s decade had developed
the postgraduate education (LLM and Ph.D.) for the first time
in a regular and continuous manner which paved the way to
professionalize the research careers as it will be showed in
the next sub-section. The Reform movement had had a
resistance role in this neoliberal context but could not
offer a different model than the one focused on the education
of the future liberal professionals.
As can be seen, the students’ movement and the university
role have changed as a consequence of national politics
events despite its autonomy. From its origins, the Argentine
university has undergone many changes but has also some
persisting features such as a pervasive orientation to the
liberal professional training, which lasts until nowadays.9
But I would like to end this section by emphasizing one of
the other lasting features mentioned that appeared in the
last decades: the influence of the national political parties
on the self-co-government member elections. National
political parties have its own student’s and faculty’s
parties. They influence the university life in a direct,
strong way. And this participation has both pros and cons.
The ideals of self-co-government and its consequence,
democratic elections, have contributed to reinforcing the
public sphere in a context where democracy has been weak.
But, on the other hand, the Reformist movement, composed not
only of students, but also of former students and, in some
cases, professors, has failed in reaching the autonomy in
scientific terms and has acted in most ways as a status quo
guardian against the right wing and neoliberal politics and,
previously, to the radical left attempts to change university
role. Furthermore, the university has lost its energy and
power because of the giant force of the political parties
with which it has to negotiate13.
The concern about these influences was part of the
considerations of the scientists and intellectuals that
13 The research of Bryant Garth and Yves Dezalay support this position. Infact, they highlight that a very well repute group of law philosophershave chosen to work in a Private Law School to avoid the politicalinterferences they would find in the Public Law School of the BuenosAires University. Garth, Bryant and Dezalay, Yves, Argentina: Law at theperiphery and Law in dependencies: Political and economic crisis and the instrumentalization andfragmentation of Law, Chicago, American Bar Foundation working paper nº 9708,pp. 98-99.
10
created the actual research system. In fact, they have
discussed what kind of relationship between research centers
and the university was the most appropriate to develop the
scientific system and they chose the separation model which I
will refer to in the next sub-section.
Research system: The context of the professional legal
research (and of this work)
An explanation about research in my country is necessary
because the difficulties and deficiencies result in the lack
of a strong science system. This has a very negative impact
in the research results that can be seen very clearly in the
legal academic realm. As a start it must be said that
research is financed mainly by the national state through the
National Board of Scientific and Technical Research (CONICET
is the Spanish acronym) and public universities14. CONICET was
founded in 195815 inspired by the ideas of Bernardo Houssay,
one of our medicine Nobel Prize winners. The researcher
14 70% of the Budget for science research is provided by the nationalgovernment, 26% by private companies, and the rest by internationalorganizations. Educación Superior en Iberoamérica. Informe 2010, p. 123-125,http://www.cinda.cl/download/informe_educacion_superior_iberoamericana_2010.pdf15 Certainly, CONICET is not the origin of the scientific activities inArgentina but yet it is an outstanding fact that defines theinstitucionalization of science research. Authors agree that scienceprojects started in the last years of the ninenteen century. Weimberg,Gregorio, La ciencia y la idea de progreso en America latina. 1860-1930, Bs. As.,Fondo de Cultura Económica.
11
himself had suffered the consequence of the influence of
political parties in the university when he was forbidden to
teach in the Buenos Aires University under the accusation of
being an opponent to the national government during the
forties. According to one of his former disciples, Marcelino
Cereijido16, after Houssay was reestablished as a professor in
1955, having already won the Nobel Prize, he thought he would
be in charge of the organization of the university and
research systems. However, the political system of the
university was strong and Houssay took a position against
other researchers and intellectuals who defended a model of
university aimed at producing scientific knowledge directly
connected with the national needs17. This position has roots
in the University Reform principles that were intended to
connect the social change role of the university with its
goals of high academic performance. Thus, this group of
intellectuals and professors wanted to create a national
board dedicated to financing research that should work in
direct assembly with the universities. Nevertheless,
Houssay’s idea about the importance of the independence of
the National Board of Scientific and Technical Research
succeeded18.
16 Cereijido, Marcelino, La nuca de Houssay. La ciencia argentina entre Billiken y el exilio,México D.F., Fondo de Cultura Económica, p. 133. 17 This position was strongly criticized by the left as insufficientlyuseful to change our socio-economic problems. Varsavksy, Oscar, Ciencia,política y cientificismo, Bs. As., Capital Intelectual, 2010, p.25.18 Houssay, Bernardo, La investigación científica, Bs. As., Columbia, 1955.
12
CONICET was designed to be independent of the national
universities to avoid the university political influence of
which I mentioned previously. It also was set up to avoid
direct influence of the national government. The period that
went from 1955 to 1966 was called the “Golden Ages” of
science and universities in Argentina because of their
production and their growing importance and strength.
However, this short period was ended in 1966, with the
military government of Juan Carlos Onganía which provoked the
exile of the most prepared scientists and professors giving
birth to a dark period for science and education. In 1976 the
last and more violent military coup d’ètat took place and with
a short period of improvement in conditions in the first
years of democracy, in 1983, the neoliberal politics of the
90’s where a final stroke to the scientific and university
systems. It is important to say that since 2003 we have
enjoyed a continued and systematic national policy of
reorganization and financial aid to CONICET and to the public
universities. But the recovery will take several years to
render its fruits. In particular it must be stressed that for
some years there were no job post in the CONICET’s Scientific
Career and many young researchers decided to live abroad to
pursue their researchers.
Another factor of distortion in the research field is a
national financial program that started in the 90s aimed at
funding the research projects of its professors. In reality
13
many professors, in the legal academic realm, have neither
training nor time to do research and their projects usually
end up in one or two papers that were elaborated in the
solitude of their offices or homes but were declared to be
the result of a group research work. The consequence is the
generation of an illusion that hinders the possibilities of
an accurate account of research production. And this weakness
and lack of training and socialization in research activities
can be also found among CONICET researchers when they accept
to be Ph.D. thesis advisors19. These deficiencies have an
impact also in the training process of young professors and
force us to be self-learners and to adapt our objectives to
the actual possibilities. Thus, we suffer from a lack of
material resources and well trained researchers in all fields
and, specially, in social science. Indeed this has a
considerable impact in juridical research because of the
particular and extended beliefs among lawyers over the
quality of dogmatic science. I can say that, besides the
strong development of the Philosophy of Law and Political
Philosophy in some Law Schools, other kind of research
projects, such as socio-legal research, are recent and has to
deal with the deficiencies mentioned above. In Argentina only
19 As an example of this description it is important to say that duringthe last year CONICET conducted a survey among its postdoctoral membersto evaluate the general situation of young scholarship holders. We wereasked a very significant question: In reality, who acted as your advisor?The survey results are not available yet.
14
900 students, out of 12.000, per year obtain a Ph.D. degree20.
This has a very negative influence in the research system
since Ph.D. is the only formal level were students are
trained in research methods, especially if their university
diploma is one of a liberal professional school, like the Law
School. In fact, most of the legal curriculums of Law Schools
are intended to train lawyers to work as liberal
professionals. The academicians and law philosophers are
usually trained in an informal way by being professor
assistants and the value of the training depends entirely in
the personality, and qualification, of the chosen available
professor. This type of training leads to the pervasive model
of legal research, “legal dogmatism” and, with fortune, to
the philosophical approach that can be developed with no
group and almost no material resources.
Legal dogmatism as the model of legal studies
The description of the university and science systems
provides a general idea of the context of legal research. In
fact, it is important to add something else to understand the
features of this context. The distribution of resources,
researchers and students in Argentina is very unbalanced with
20 According to the information published by the University Policy Office,Argentine National Educative Department, Anuario 2009, p. 58.
15
a concentration in the Buenos Aires University, La Plata
National University and Córdoba National University. This
unequal distribution determines the differences among
research styles in the legal realm. Thus, it is important to
stress that the general depiction provided here has its
exceptions in some research groups of the universities
mentioned above and even in some of the new Private Law
Schools21. In fact, there are well identified groups in UBA,
UNL and UNC working on sociology of law problems. Others
groups are working on a highly developed and qualified method
in philosophy of law and political philosophy. Naturally, the
possibilities to do these kinds of works are given by the
concentration of researchers of different disciplines, the
cosmopolitism and international experiences of many of them
and the cultural traditions of their universities as well as
to the resources available.
Despite these considerations, I find it legitimate to
generalize about the pervasive features of legal research and
to do that I will follow the ideas of Genaro Carrió, an
analytical law philosopher who had a strong influence in
legal research two decades ago. Unfortunately, his diagnosis
is still valid, which enables me to use the ideas put forward
in his work22. Therefore, I would like to start by saying that
21 For example, the Di Tella University Law School is an atypical case.Spector, Horacio, The academic study of Law in Argentina, Caracas, CuadernosUnimetanos, N. 15, 2008, pp. 6-15. 22 CARRIÓ, Genero, Sobre las creencias de los juristas y la ciencia del Derecho, en RevistaAcademia, Buenos Aires, Año 1, Nro. 2, 2003, p. 117.
16
legal research in my country can be described as the
individual work of lawyers that concentrate on the black
letter law to propose its correct interpretations. This is
the omnipresent model of legal research and its product is
called “dogmatic science” or “doctrine”. Legal scholars who
conduct this kind of research believe that by studying the
law this way they are doing science, just as the physicians
and sociologists do. Also they claim that the science of law
is possible since there is an autonomous juridical world,
which has meaning in itself, and can be interpreted without
any reference to society. They divide the world in two. On
the one hand, there is the domain of the Law. On the other
hand, there is the domain of the facts. Law is reason,
coherence, organized concepts and solutions that are many
times considered just or, at least, well oriented to reach
justice. Sometimes facts put pressure to conquer the Law’s
domain and academicians have to deal with this problem. But
the solution is always handy. They sharply distinguish
between juridical answers and social/political ones.
This description may seem to have in common many aspects with
what the “Legal Realism” had depicted as the way law was
taught in Law schools, called “law in the books” as opposed
to the “law in action” proposal23. Despite the similarities
that can be found, the main difference is that in Argentina
lawyers believe that dogmatic doctrine is a scientific23 Macaulay, Stewart, The New versus The Old Legal Realism: “Things Ain´t What they Used toBe”, Wisonsin Law Review, Vol. 2005, N. 2, p. 365.
17
discipline as much as physics or medicine or, if not, as
social sciences are if they consider that the latter have
specific characteristics distinctive from the natural
sciences. In the USA the study of law is not usually
considered that way and, therefore, there is a better
understanding of the limits of doctrinarian’s works and the
importance of interdisciplinary researches. And, above all,
there is a deep understanding that law studies are very
useful to practitioners and judges although they are not a
scientific study of the law.
This kind of study of the law is made in the loneliness of
scholars’ offices and the only requirement to do it is to
have access to a law library. The solitary study of the law
derives in papers with recommendations about the correct
interpretation of some of its articles, or about the
necessity of certain legal reforms. These works, and the
ideas over its scientific character, have a strong connection
with the weaknesses of the research system described above.
The lack of professional training, material resources and
interdisciplinary connections reinforce the long tradition of
legal culture. And it is important to highlight that it is a
reinforcement24 process because law studies had found it
difficult to become a strong discipline in the social
24 Lawrence Friedman says that law and society studies is a luxury goodthat Third World countries cannot afford but and this is a goodexplanation that has to be integrated with the depiction of the legalculture. Coming of Age: Law and Society Enters an Exclusive Club, Annual Rev. Law Soc.Sci. 2005, p. 11.
18
sciences25 and this difficulty is more visible in a society
where science and universities are inherited systems. In
fact, Law Schools occurred earlier than the
institutionalization of other social sciences such as
sociology, economy and history and, therefore, the role of
Law Schools was clearly defined and was difficult to change
it. Moreover, social scientists are skeptical about the
possibilities to transform the studies of law, evaluated as
too normative or idiographic, in scientific approaches.
As it can be observed, the analysis of the features of the
university and research system and the model of legal studies
is the background against which the results of my research
can be better understood. And this context is what Basil
Bernstein conceptualizes as the knowledge production field as
opposed to the recontextualizing, and to the reproduction fields26. The
differentiation among them, ant the study of its relations,
allows a deeper study of legal education. In the next section
I will refer to the research about legal education in my
country, and to my work.
II. Legal education: a new topic in a very traditional
knowledge production field
25 Wallerstein, Inmanuel (ed.), Abrir las ciencias sociales. Comisión Gulbenkian para larestructuración de las ciencias sociales, Madrid, Siglo XXI, p. 32.26 Bernstein, Basil, Pedagogy, Symbolic Control and Identity, London, Taylor andFrancis, 1996, pp. 39-53.
19
State of the art
Legal education is a bright new topic in Argentina. Indeed,
there is only one specialized journal dedicated to it,
Academia, edited by the Buenos Aires University since 2003. A
rapid analysis of the content27 of this journal is a good
starting point for a very brief state of the art which shows
that national authors concentrate mainly in the instructional
aspects of the curriculum and in the pedagogy of Argentinean
legal education. When they focus on these aspects, they
generally present their ideas in essays rather than papers
based on empirical researches. These essays are usually a
compilation of critical reviews, especially focused on the
positivist legal philosophy and legal formalism, which are
usually considered the same theory. These theories are
accused of being the origin of all the flaws and deficiencies
of legal education. The most common goal of these works is to
set a lot of recommendations of curriculum reforms. Pedagogy
is another highly discussed topic and is also criticized
under the accusation of being old fashioned and failing to
incorporate new technologies and techniques as well as not to
train in practical skills. Many times the cause is also found
in the alleged influence of legal positivism. Finally, there
27 http://www.derecho.uba.ar/publicaciones/rev_academia/index.php20
is an additional interesting trait of this journal that is
the number of articles that do not refer to legal education.
It is common to find authors arguing about the new trends in
international public law or about philosophy of law problems,
for example, that have little or no connection with the topic
of the journal. Sometimes, the only reference to legal
education in this type of articles is a final recommendation
of renewal of the syllabus of a course connected with the
explored area.
Another sign of the recent interest in legal education, and
the first institutionalization of the law and society
movement -or sociology of law as it is more frequently called
in Argentina- is the Annual Meeting of Sociology of Law
organized by the Argentinean Association of Sociology of Law.
The first meeting was in 2000 and one of the sessions was
dedicated to legal education and juridical professions. The
number of papers presented in the sessions has been growing
since the first one, which is a clear indicator of the
interest for this topic28. However, 11 years is really a short
period of time for consolidating a movement establishing a
robust tradition in empirical approaches to the law and to
opening new institutional spaces where to work and publish.
In addition, the weaknesses and deficiencies described in the
first section of this work are strong difficulties in the
28 Gonzáles, Manuela; Marano, Ma. Gabriela et al, Estado del arte de la educaciónjurídica a diez años del Primer Congreso de Sociología Jurídica, Papers of the XISociology of Law Annual Meeting, 2010.
21
path to constitute interdisciplinary research groups. This
can be seen in the papers presented in the legal education
sessions where many participants offer papers about their
personal practices as professors with no other foundation
than their very own experience29.
Finally, there is another difficulty that arises in the study
of legal education and is the frequent doubt about the
juridical nature of the topic. It is not hard to understand
why the classic legal scholars hesitate about the
“juridicity” of the discipline involved in the study of legal
education, even though they have recognized its importance30.
While most part of their works are dedicated to produce
interpretations of the law, studying legal education seems to
have neither appeal nor an audience among practitioners and
judges who are, most of the times, the very lawyers that
teach at Law Schools. Moreover, traditional legal scholars29 Legal education is, doubtlessly, a political, controversial topic.Everybody can and should have an opinion on the matter and, above all,law professors and students should be entitled to share their points ofview. However, it would be important to have accurate information aboutit if the goal is to know more about the way legal education shape theidentity of future lawyers. Is always tempting to judge and criticize andlawyers are trained to do this. Legal education as a subject matter inArgentina is still a very new issue and researches over it have notspanned the map of it. 30 The most traditional legal field in Argentina is civil law and it isinteresting to notice that since 1999 in the Civil Law Meeting there is asession dedicated to legal education that is and indicator of theattention of civil doctrinaires to the topic. But the marginal importanceof it in the meeting and because the participants are mainly civildoctrinaires and, most important, because they only producerecommendations, I took as point of reference the Sociology of Law AnnualMeeting and Academia journal of legal education as more precisereferences. http://www.garridocordobera.com.ar/pagina_nueva_5.htm
22
and law philosophers do not find legal education
philosophically interesting. However, I think this last claim
is not completely valid. In effect, as I highlighted, one of
the traditional criticisms about legal education is that the
curriculum, and even the pedagogy, are deficient because of
the pervasive presence of the positivist legal theory or the
formalism, which are sometimes considered the same thing.
This statement about the importance of legal positivism was
one of the focuses of my research and I found that it is not
completely accurate31.
Although I worked on the bases of the distinction between
description and prescription32 I assume that empirical
research is relevant to philosophical discussions and vice
versa. Following the idea of Elizabeth Mertz, I would say that
some the aspects of my research, which I will present in the
next sub-section, can be seen as an attempt to study some
legal philosophical problems from an empirical point of
view33.
31 I will not refer to this aspect of my research here since I think itwould be better to depict dimensions that I believe are better tounderstand Argentinean legal education.32 The necessity of connection between analytical jurisprudence andempirical legal studies is being growingly considered after the attack ofWillard van Orman Quine to the distinction between analytical andsynthetic statements. Twinning, W., General Jurisprudence. Understanding Law from aGlobal Perspective, New York, Cambridge University Press, 2009, pp. 54-62. 33 Elizabeth Mertz highlights that her research about language in LawSchools is …an empirical way of approaching a question with which legal scholars andphilosophers have struggled mightily: Just what is “law”? Mertz, Elizabeth, The language ofLaw School. Learning to “think like a lawyer”, New York, Cambridge University Press,2007, p. 13.
23
A case study: Law School of the National University of
Rosario
The case study research of the U.N.R. Law School departs from
a prior sociological work conducted by a group which studied
the features of legal education in the Law School of the
National University of Córdoba. In that research Carlos Lista
and Ana María Brígido led an interdisciplinary group that
worked with Basil Bernstein sociology of education theory to
produce a detailed description of the institution34. This was
the first socio legal research about legal education in
Argentina that provided empirical data and theoretically
grounded analysis.
This antecedent research was an exploratory study since only
one Law School was analyzed with no claim of
representativeness. The research I conducted has the same
restrictions: it is a case study, the results are not
representatives and the class observations and students under
survey were not randomly selected. Indeed, I am a professor
of the U.N.R. Law School, which was in fact a distortion
factor but, also, provided the kind of proximity needed to
34 Lista, Carlos y Brígido, Ana María, La enseñanza del derecho y la formación de laconciencia jurídica, Córdoba, Sima Editora, 2002. Lista, C., Brígido, A.M. etal, La socialización de los estudiantes de abogacía. Crónica de una metamorfosis, Córdoba,Hispania Editora, 2009.
24
conduct a more in depth analysis. In addition, objectivity
level is different from the antecedent since I did not work
with a research group. It is very important, thus, to
highlight that I could not complete many necessary steps to
improve the neutrality of the analysis35. This, alongside with
the difficulties of doing everything by myself, has had a
negative impact on the research.
The objectives of the research were to establish the features
of the three messages that make up the educative code -
curriculum, pedagogy and evaluation- of the U.N.R. Law
School36. I was also concerned with the subjective dimension
of the theory and I explored the opinions of different groups
of students to gain an insight of it. In this paper I will
present two aspects of the research: the official curriculum
analysis and the class observation materials assessment.
35 The generous supervision of my thesis advisor was crucial to minimizethese problems and I am very grateful to her for this. 36 The Law School of the N.U.R. is a very young institution situated inthe third larger city of Argentina, Rosario. It was founded in 1959 aftersome demonstrations of Law middle class students that could not continuetheir studies in the capital city of the province where is an olderPublic Law School. It is interesting to remark here that the N.U.R. LawSchool is part of a city relatively small -1.036.286 inhabitants- wherelawyers still know each other and where some families of legalprofessionals and politically powerful groups has the possibility toinfluence in the public sphere. This is the context of the Law Schooland, although is not the purpose of this paper, is necessary to outlinethat professor jobs, and the dean job, are considered politicalstrategically positions. Thus I have to assume that this consideration isbased on my very own experience and there are no empirical researchesabout it. I would like to remember that this Law School is not part ofthe three more beneficed in the resources distribution. The history ofthe institution can be seen at the official web page:http://www.fder.unr.edu.ar/index.cgi?wid_seccion=1&wid_item=9
25
The Law School Curriculum
As I have outlined, the legal curriculum is one of the most
widely analyzed aspects37 of legal education in Argentina.
Legal positivism and formalism are accused of being the cause
of many of the deficiencies of Law Schools. These criticisms
are shared by authors and professors who are either right-
wing or left-wing. Naturally, the arguments against this
alleged pervasive legal philosophy vary depending on the
political position adopted. Conservative professors long for
a natural law philosophy in the curriculum while more left-
centered professors would prefer to introduce a critic
perspective on it. However, these professors are simply
translating the discussion about law philosophy issues, which
takes place in the knowledge production field, into the
reproduction of the knowledge field. Following Bernstein
theory of the three fields involved in education, production,37 In the beginnings I was also very attracted by the idea that differentlegal philosophy theories have a direct impact on the law curriculums. I wasinfluenced by the discussions about the concept of law that are stillvery important in my country. This idea is now more nuanced, or at leastI tried to make it more complex, on account of a richer theoreticalframework and of the empirical research that made me think about legaleducation in a different way. The supposition about the importance oflegal philosophy, and the law concept, in the curriculum orientation hasnow only a peripheral place among the consideration of external andinternal aspects that contribute to shape legal education. If law conceptis important it is because it helps to express an idea of the lawfunction in society and because it shapes the identity of future lawyers.
26
recontextualization and reproduction of knowledge fields, it
is necessary to highlight that fields have their own autonomy
and direct conversions from one´s problems field to another
would result in a non-precise description. Therefore, it is
necessary to consider that Law School cannot be understood by
merely studying the mainstream trends in legal philosophy.
This is true even though Argentinean Law schools have to
fulfill the functions of the three fields according to the
political features described in the first section.
In my research the curriculum is considered the result of a
social struggle to impose one vision about the world. The
theory, proposed by Bernstein, and supported by authors who
follow the same trend, helps to understand that a curriculum,
and every educational process, is a social product but, also,
has its own autonomy and this is what allows institutions to
resist changes and social pressure. Thus, the legal
curriculum can be described as a carrier, a relay for ideological messages
and for external power relations38.
Bernstein more technically defines the curriculum as the sum
of contents and time. The time dedicated to a specific
content is a sign of the importance of it. He classifies
curriculums in two categories depending on the classification
among content: a collection curriculum –strong
classification, clarity in the distinction among subjects or
38 BERNSTEIN, Basil, Pedagogy, Symbolic Control and Identity, London, Taylor andFrancis, 1996, p.39.
27
categories- or an integrated curriculum –weak classification,
non-clear distinction among subjects or categories-. Besides
the Bernstein’s concepts, I included other ideas in this
study. I followed some of the thoughts of Duncan Kennedy
about the structure, and political meaning, of the legal
curriculum. In fact, even when his goal in the article The
political significance of the structure of the Law School curriculum39 was to
describe the American typical curriculum, some of his
considerations are significant to my case. Especially
relevant are his reflections about the way professors
consider civil law doctrine the essence of law and therefore
the center of the curriculum, and how courses such as public
law are seen as being part of the periphery because is blamed
of intellectual inaccurate and politically oriented content,
rather than having a technical-juridical content. Based on
these concepts, I have analyzed the Law School curriculum in
order to determine the predominance of some contents over
others and to identify the curriculum type. The study
included the analysis of the eight out of the nine reforms40
to the original curriculum of 1960 and the special focus on
thirteen syllabuses of courses selected based on the content
39The paper can be found at: http://duncankennedy.net/documents/The%20Political%20Significance%20of%20the%20Structure%20of%20the%20Law%20School%20Curriculum.pdf40 Reforms were undertaken in 1970, 1974, 1976, 1977, 1985, 1992, 1999,2008 and 2011. The last could not be analyzed yet. Each reform isdocumented in a resolution that contains an argumentation. It wasimpossible to have access to the self-co-government sessions diary tohave a deeper approach. Law School authorities denied the permission.
28
and the year in which they are taught. I will offer here the
most relevant features of the research.
Civil Law and collection curriculum
The university system described in the first section, and the
university autonomy principle, establishes that each school
has the right to approve its own curriculum. Thus, the
curriculum, and its reforms, is the product of a voting
process that includes all members of the self-co-government,
faculty, students, alumni and staff members41. The syllabus of
each course is prepared by the tenured professors and must be
approved by the self-co-government as well. The program
consists of thirty three courses and is divided into two
phases. The first one, by the time this research was
conducted, included seven courses and is usually called first
year even though it is officially the Basic Phase. The second
face is made up of the rest of the courses and is the Upper
Phase. Except for one course over thirty three, the rest of
them are mandatory and, thus, the students have no freedom to
choose the orientation they prefer. Students can choose among41 The curriculum has then to be approved by the self-co-government bodyof each University. Perhaps one of the most outtstanding features of thisprocess is that staff members vote the curriculum. This is a highlycriticized characteristic of the U.N.R. that remains due to politicalreasons. Staff members have a relatively strong union and make electoralarrangements with professor and student´s movement which allow win deanand University president elections.
29
the professors in charge of each course reliant on a
competitive method of selection that depends on the student’s
marks. The rigidity of the curriculum is an extended feature
in all Argentinean Law Schools with a few exceptions such as,
for example, U.B.A. Law School42.
Through all the years the curriculum has maintained the six
Civil Law courses and one Procedural Civil Law course. The
eight changes analyzed can be differentiated into two
categories: the ones that added new courses, or eliminated
some of them, and the ones that modified the requirements to
take a course. The first types of changes were introduced
from 1960 to 1985. After that period the curriculum changes
were an effort to establish new requirements that students
had to fulfill to have access to the courses in order to deal
with the increasing growth of the student roll. Especially,
the 1999 reform caused a strong student reaction because it
relocated the first Civil Law course in the first year.
Student’s movement saw this as an arbitrary obstacle since
passing the first year Civil Law course would become a
requirement to have access to the second year courses. It is
important to highlight here that it is illegal to posse any
other requirement to a person who want to study at the Law
School that having finished high school. However, depending
on the different political orientation of the members of the
42 The flexible curriculum of the UBA Law School, similar to the Americanones, was approved in 1985 and was designed by professors that hadextensive international experience.
30
self-co-government body, some reforms are intended to prevent
the access in an indirect way.
In the period that goes from 1960 to 1985 there were changes
that affected what Kennedy calls the “periphery” according to
the way professors understand courses which do not refer to
private law doctrine. As a matter of fact two of the most
politically vivid periods had an influence in the curriculum
that can be seen in the addition of new courses. Sociology of
Law, Legal History and Introduction to Philosophy and Social Sciences were
added as mandatory courses in 197443. In 1985, with the
recovery of democracy, a renewed political interest arose
within the university community. The new democratic national
government started the normalization process of the
universities which derived in a new reform of the Law School
curriculum. This reform documentation has the most extensive
rationale, full of references to the social and political
context, and with the explicit goal to balance a curriculum
oriented to the private law doctrine point of view. This
meant the addition of new periphery courses such as
Constitutional Law II and new elective courses. This reform also
took pedagogy into account and tried to change it by
promoting a more humanistic method, but provided no
indications about how to reach this goal claiming the need
for change.
43 In this year assumed the wife of Peron as president. Political contextwas very violent.
31
To sum up, despite the several modifications that the
different self-co-government imposed to the curriculum there
is one thing, as I stressed, that has continued over the
years: the six mandatory Civil Law courses. Civil Law courses
are understood as the core or center of the curriculum and,
therefore, have remained unaffected over the years. The
claims by professors44 in each reform confirm this division
between center and periphery. In fact, despite the
significant transformation in the legal curriculum that
occurred after the last military government this feature
remained. The approval of new courses could not modify the
unbalance described.
In addition to this analysis, it is important to highlight
that the legal curriculum studied is a collection curriculum
according to the Bernstein’s theory. This means that there is
a strong classification among the categories. In this case,
the categories are private law, public law and what are
considered courses that broaden “general knowledge” or
provide a deeper understanding of law. The classification is
a function of the power, a concept that Bernstein did not
define precisely but which he relates to the macro social
conditions. Consequently, power here defines that these are
the categories, well-shaped and internally isolated.
Isolation can also have an external value meaning that has no
44 Of course not all professors but the ones that have the power toestablish the curriculum with the votes of a minority of the student’srepresentatives as it were in the 1999 reform.
32
connection with the world outside the Law School. If the role
of legal education, as it was stressed, is to teach students
to “think like a lawyer”, the process requires generating a
new language and a new approach to the world. Civil Law
courses, with its strength, coherence, tradition and
apparently political neutrality, are a highly efficient
instrument in the socialization process. In the next section
I will offer a description of the pedagogy and the
“curriculum in action”.
From the bench. Pedagogic discourse or “curriculum in action”
and pedagogy
The pedagogic device is a concept that Bernstein has
developed in the last years of his work and is related to the
educative code and the curriculum. He thought that …we have a
plethora of studies showing the function of education in the reproduction of
inequalities…In terms of my questions, whether there are any general principles
underlying the pedagogizing of knowledge and what makes pedagogic
communication possible, most studies have studied only what is carried or relayed,
they do not study the constitution of the relay itself45. He wanted to
explore the sociological nature of pedagogic knowledge and to
do that he constructed the pedagogic device theory. This
device is the internal grammar of pedagogic discourse and is
45 Bernstein, B., Pedagogy, Symbolic Control…, op. cit., p. 39.33
made of three interrelated rules: distributive rules,
recontextualizing rules and evaluative rules.
The pedagogic device is a continuity of his ideas about the
curriculum, pedagogy and evaluation messages that constitute
the educative code. With these concepts Bernstein provides
theoretical tools that show the double edge of the
educational process: the external influences that shape it
and its autonomy. These concepts are related to the three
fields of knowledge and the interaction among them and they
were my conceptual framework for the class observations.
Therefore, it is necessary to point out that during the class
observations, among all the dimensions that could have been
under analysis, I have chosen only the regulative rules and
the result of the recontextualizing rules, the pedagogic
discourse. This last aspect can be also seen as the
“curriculum in action”. I have also considered the pedagogy
as related to the regulative rules and during the analysis I
will show the connections between them.
Selection criteria and method
As for the selection of the classes I decided to use two
criteria. The first one was referred to the year in which the
course was taught; therefore, I observed two new courses in
34
first year and eleven courses in the Upper Phase years46. The
second criterion was the belonging of the courses to the
center or the periphery; therefore, I observed six center
courses from both phases and seven periphery courses from the
upper phase47. I observed three classes of each course and I
tried to attend each first class. I also attended an especial
general class for the first year course that was held in a
theatre that was the only place with the necessary capacity
to seat all the students.
The observation was done after being given permission by each
professor and I decided not to tape the classes since the
intromission would be very strong in a context in which I was
also part of the institution as a professor. I took notes
but, in some cases, I was so observed by the professor and
the professor assistants that I had to stop for some moments
not to interfere with the class. I think some of the
attitudes of the professors that gave me access to their
courses are remarkable. Two of them told me that “they were
honored to be chosen”. And all of them, except for two,
invited me to seat next to them as if I were their professor
assistant as a way of trying to show that we were colleagues,
“part of the same team” or to be respectful. Two others46 Although the curriculum is not organized by years the estimated time tofinish Law School is six years. The curriculum is structured around coursesconnected to each other. The curriculum is divided in two: first year,called “basic cycle”, and the rest of the courses named “superior cycle”.47 Actually, some courses that I considered as part of the periphery havefeatures of center courses. This is the case of crime law courses. I willrefer to this situation again in the corresponding section.
35
invited me publicly to correct them if I thought they were
committing some mistake. These episodes confirmed that not
taping was a good idea although I would miss important
information by only taking notes. These professors are not
used to being observed. Indeed, Law School authorities have
no control system of the classes and professors can be
described as “bosses” of their classes as I will describe in
the next sub section.
Regarding the objectivity of the research I should highlight
once again the limits of a lonely work and the absence of a
computer program to process the qualitative data or to
quantify some aspects, if it is possible to consider that
some of the data of class observation would be suitable for
such analysis. Thus, the data was processed on my own with
the obvious limitation that this implies. Also, I did not use
a computer program because it was out of the possibilities at
the time the research was conducted48.
I will divide the presentation of the results in two
subsections. In the first one I will show the regulative
rules, pedagogy and pedagogic discourse of the first year
courses. In the second subsection I will do the same with the
Upper Phase courses.
48 I am completely aware of the necessity of working with a group and withtechnological aids but the possibilities that our legal academic realmoffers are limited as I have stressed in the first section. Even theantecedent that I followed was done without a computer program support.
36
First year courses: Civil Law concepts and learning to be a
(responsible) university student
The first year courses that I chose for class observation,
Private and Public Law Institutions and Comparative Legal Systems Studies,
were taught for the first time by the time I made the
observations. They were added to replace the two mandatory
introductory courses that candidates had to pass to enter the
Law School. These introductory courses existed until 2007,
when the university authorities changed and a new president
was appointed and banned any kind of exams and entrance
courses. Thus, it is interesting to examine the decision of
the Law School to obey the university new rule by changing
the curriculum instead of simply eliminating the entrance
courses. Indeed, the change pursued the goal of transforming
the entrance course into two ordinary courses that would be
required to have access to the rest of the first year
courses.
It was a challenge to define if these two courses could be
considered part of the center or the periphery since they
have no tradition at all nor history in other national Law
Schools. For a start, they can be considered more oriented to
the Civil Law doctrine as can be seen by reading the
syllabuses. This is a very significant point because self-co-
37
government members, in spite of the argumentation about the
necessity to adequate the curriculum to the globalization
process and juridical pluralism paradigm, decided that the
introduction to law studies would be better done by a civil
law approach to the juridical world. Along these lines, the
Comparative Legal Systems Studies course was based on a book written
by a Spanish author that took the civil law categories to
establish comparisons49 among legal systems. The other course
was based on the book Practical Knowledge for the Liberal Practice of the
Law50, written by a Civil Law professor who offered an
introduction to the basic notions of the civil law dogmatic
science, such as the concept of person, free will and
contract. Therefore, the two courses were an introduction to
the center of the curriculum.
49 The book was Sistemas jurídicos comparados. José Castán Tobeñas was a Spanishcivil law academician who died in 1969. He was a judge during the Francodictatorship. His book referred to the Soviet Law because the USRR wasstill a country by the time he wrote his book. During the classes one ofthe professors repeated the classification among law systems and includedthe Soviet Law family without noticing it does not exist anymore. Theisolation from the reality, and the alleged neutrality of civil lawacademicians, can be seen in this example. 50 It is interesting to notice that the book is addressed to young lawyersbut it is offered for first year Law students.
38
The pedagogic discourse51 in these courses, what I called the
“curriculum in action”, was highly coherent with the official
curriculum. This harmony between both of them was not present
in the other courses and is an interesting feature that has
to be highlighted because it can be understood as the result
of the coherent way civil law is recontextualized in the Law
School. Another cause to this consistency could be found in
the fact that these were new courses52 and professors did not
have time to develop a parallel curriculum.
Even though the two courses had different contents it is
possible to summarize the main similarities among the classes
like this:
1- Law is described as a natural and highly positive feature
in all societies. Its goal is to order coexistence and to
accomplish justice. Indeed, four out of the five of the
professors observed said that they believed in the natural
law existence which shows a contradiction with the idea that
legal positivism theory is the pervasive point of view in Law
51 …the pedagogic device. This is 'a principle for appropriating other discourses and bringing theminto a special relation with each other for the purposes of their selective transmission andacquisition' (Bernstein, 1990,pp. 183-184). Pedagogic discourse, as a 'symbolic ruler ofconsciousness', has an underlying grammar that transforms other discourses and reorders them.In Bernstein's view, this is what creates space for the 'play of ideology'. Does Education HaveIndependent Power? Bernstein and the Question of Relative Autonomy, Michael W. Apple,British Journal of Sociology of Education, Vol. 23, No. 4, Basil Bernstein'sTheory of Social Class, Educational Codes and Social Control (Dec., 2002), Taylor &Francis, Ltd., p. 612.52 Parallel curriculums are very usual in Law School. Professors that do notagree with the curriculum but have no power to formally change it adopt thecurriculum they think is more suitable. Law School’s authorities havepassed new rules to avoid this situation.
39
Schools53. They offered different concepts of law but with no
depth and in the style that can be found in the introduction
of the most classic civil law doctrine books.
2- Law is divided into two strands: private law and public
law. The first one is the domain of freedom. The second one
is the domain of the mandatory regulation of the estate that
limits the freedom of citizens. Private law is preferred to
public law which is seen as the exception to citizens’
freedom to set their arrangements. Public law appears only
when individuals cannot solve their disputes in a pacific
way.
3- In the conceptualization of law there was no reference at
all to its legislative origin. Law appears as a natural
product with no relation to politics or to social struggles
that resulted in the legislative recognition of rights.
4- Civil codification is defined as the most perfect level
that law can reach. The Civil Code was described as highly
coherent, well-structured and clear. To study the Code is to
learn the law.
5- Two professors mentioned the Roman civil law as the basis
of our national law. And that the positive law is the result
of the adaptation of the Roman civil law to contemporary
53 Of course this cannot be stated only from these observations. Otherresults of this research and the ongoing one support the idea that legalpositivism is not pervasive and coexists with a legal worldview thatrelates strongly legal with moral rights.
40
times. Indeed, one of them said that “almost nothing has
changed since the Roman times” and that “it is a pity that
the Roman Civil Law course has been eliminated from the
curriculum”. Roman Civil Law reference has been mentioned in
all the classes and also in the Upper Phase courses. In this
way, law is considered as a natural and static instrument
rather than a historically changing social product.
6- In the first classes professors explained the subjective
right theory and students were asked for examples. Many
students offered human rights of the third generation
examples, which were rejected by professors. Instead,
professors accepted the examples of subjective rights, such
as private property rights that are ruled by the Civil Code.
7- Every time a student tried to relate their experience with
the legal topic the professor was explaining, they were asked
to stop the argumentation under the consideration that the
“legal field” is different from the “social reality field”.
The isolation of law definitions and prescriptions is
considered necessary to establish the boundaries of law and
lawyers’ work.
These characteristics of pedagogic discourse have to be
analyzed alongside with pedagogy features. Pedagogy in these
first year law courses was aimed to teach students to be
responsible university students. In fact, all of the
professors, except one, devoted almost half an hour of their
41
first class to talk about what it means to be a Law student.
And one of the professors that lectured the special class for
all courses’ students of the Legal Systems Comparative Studies
devoted it completely to this point with no reference to any
instructional content.
Professors defined the student role as a very significant
one, which required contradictory capacities: responsibility,
commitment, self-sacrifice and enjoyment. It was also
stressed that being a university student will “change their
identity forever”, will “confront them with solidarity issues
with their peers”, and that they “must enjoy both first year
courses, otherwise the Law School was not for them”. Another
remarkable feature was the rule about punctuality and the
prohibition to eat or drink during the classes. The last one
was based in the necessity to “give hierarchy to the
university environment” and was not followed by a professor,
who entered the classroom with a coffee, under the excuse of
being lecturing from early morning. As for punctuality, is
usual that professors arrive late at the class without
justification.
Interaction among professors and students was explicitly
controlled by professors, thus the pedagogy was visible
according to Bernstein theory. Indeed, students talked only
on call and to answer questions. Professors behaved with
vehemence, assertiveness and, in some cases, histrionics.
Moreover, two professors used an intimidating and pejorative42
tone to correct the students’ answers. In both cases the
answers required by professors referred to personal points of
view, though it is noticeable the force of authority even in
a context where different opinions should be allowed.
Students learn to please professors and not to confront.
Except for one of the professors observed, the use of
technical or theoretical vocabulary was important but it was
combined with a more horizontal discourse. As a general
conclusion, in the first year courses students were more
enthusiastic in their answers but were more corrected, and in
a more intimidating way, than in the Upper Phase courses.
Learning to behave like a lawyer in the Upper Phase courses
Once students start the second year, and especially, in the
fourth and sixth year courses, the pedagogic discourse and
pedagogy change considerably in comparison with the first
year courses. The change is due to the year the course is
taught but there is no difference in the pedagogy between
center and periphery courses in the Upper Phase courses. This
is a noticeable aspect because it could be inferred that
content shapes pedagogy. This is not the case, and pedagogy
is visible too as that the roles of professor and student are
clear-cut and students know what rules they have to obey.
43
Superficially, the courses selected can be divided into
center and periphery. Nevertheless, only Civil Law courses
have the most defined features of center subjects. Courses
like Criminal Law I and II, Criminal Procedural Law II share both
characteristics, since their pedagogic discourse is
constructed around the Criminal Law Codes. Sociology of Law,
Constitutional Law I and II, and Law and Political Theory are clearly
part of the periphery.
The way professors described the law and established
connections with the social context changed in these Upper
Phase courses in comparison with the first year professor’s
discourses. There was no reference to justice or pacific
coexistence as law goals. The legal system was presented as
self-sufficient, clear and complete. Actually, two professors
remarked that “politics and corruption are pathological
influences that disturbe the normal development of legal
solutions”. One of them rejected student´s suggestion of
“justice as the underlying principle of a judge’s decision”.
He said justice was a matter that “concerned only
legislators”.
Center courses’ professors used a decidedly technical
language that included the use of Latin and the memory
recitation of paragraphs from books and legal sections.
Precision, logic and conceptualism are the common features of
their classes. This vertical discourse gives the idea of
non-arguable issues and causes a strong isolation both44
internal and external. Having another point of view about
some of these explanations would require deeper knowledge of
legal theory54, something not possible for students in this
context.
Again, Roman Civil law was mentioned as the basis of “all
law”, including every legal system. When referring to
doctrinarians, professors never clarified the period they
belong to thus generating a sense of a-temporality in law
discussions and interpretations. Whether quoted doctrinarians
were foreign individuals or not was not clarified with the
consequence of de-contextualizing the explanation. Velez
Sarsfield, the author of the Civil Code, was profusely quoted
using the present tense as if he were still alive. Professors
referred to his Velez Sarsfield’s project as the result of
his very personal, original and brilliant ideas. The beliefs
over the scientific quality of civil law academicians was
remarked by one professor who explicitly attacked the
positivist legal theory because “legal positivists consider
that everything is clear in the juridical world while it is
not”.
These characteristics of the center Upper Phases courses are
different from the peripheral ones. But the most noticeable
difference is the isolation of these courses both from the
other courses and from reality beyond the Law School54 Gordon, Robert, Cómo “descongelar” la realidad legal: una aproximación crítica alderecho, Desde otra mirada. Textos de teoría crítica del Derecho, Bs. As., Eudeba, p.343.
45
building. While performing the observations two political
episodes occurred in Argentina which received extensive media
coverage. The first episode was taxation to grain exports.
The second one was the occupation by a large group of the
poorest inhabitants of Rosario of the square opposite to the
Law School claiming for their rights to have job and housing.
Neither of these social struggles, from two different social
classes and which clearly involved a legal dimension was
mentioned. Civil law, and criminal law courses considered
part of the center when they are strictly focused on the
Codes, was taught without any connection to these episodes.
Only in one occasion a Civil Law professor talked about the
outside events when the demonstration in the square caused
such a disturbing noise that interfered with the class: “Poor
students of mine, I´m talking to you about these issues going
on”55. After the class, this professor told me that she was
very concerned about the national politics and what she
thought would be the confrontation between political groups
like she had experienced in the past56.
Instead, peripheral courses showed a connection with these
issues. In two courses both political episodes were discussed
with students and one professor assumed an explicit political
standpoint. However, the way issues were connected seemed a
55 Notice the condescending way of talking to students and the strengthamong categories.56 She was referring to the confrontation between “Peronists” and “anti-Peronists” that divided the country causing several and deep politicalproblems.
46
non-juridical discussion because there was no relation
between periphery and center courses. Also, the lack of solid
concepts and theories tend to make argumentations weaker.
Although professors connected law with the social reality,
the political realm and the doctrine they could not establish
a strong linking with private law or any civil law issues.
When referring to authors, professors usually contextualized
them and even mentioned their political orientation. And even
in the courses based on the Criminal Law Code, professors
emphasized doctrinarians’ theories. Their constructions were
taught as essentials elements to understand, and apply, law
since the Code is not clear enough. The way one Criminal Law
professor explained this is worth mentioning: Dogmatic science is
the legal method and it was born with Ihering. There have been different
characterizations of it. The way it works is by decomposition and reconstruction of
the legal text. Law is not arguable since it is law and, as such, enforceable. To say
that law is arbitrary is to criticize it from a non-juridical point of view. This kind of
criticism is political. If it is law it cannot be questioned.
As can be observed, the way professors teach their periphery
courses has a double edge. On the one hand, they connect the
law with politics, reality and doctrine. On the other hand,
when referring to codes or legislation, they stress that law
is not arguable. Only social theories and political issues
can be discussed and if law was to be criticized it can only
be done under non-juridical considerations.
47
Pedagogy in the Upper Phase courses is visible, as was in
first year courses. The difference is that in the Upper Phase
of the program students are less willing to participate. Like
in first year, they only talk when called to do so, but their
answers are not spontaneous and they have already learnt suit
professors’ preferences. It is also interesting to highlight
that, except in one case, no one used a diminishing tone.
Nevertheless, authority and intimidation were usual. The
class is professors’ domain and they have enough power even
to decide whether the official syllabus is to be followed or
not57. This is one of the reasons why students attend classes:
they need to learn what each professor will evaluate.
Finally, in all classes professors provided tips of what
students should learn to become good lawyers. The attitudes
and capacities needed would be assertiveness, good oral
expression, self-confidence and punctuality and, of course,
knowing how to convince the judge thru legal argumentation.
The only possible role as lawyers would be to have their own
law office. Being judges, a legislator, working in a NGO, a
researcher or building an international career are not seen
as possible lawyer’s roles. This way, the future of students
is strongly defined before living university, with no other
possible role for a lawyer in the complex Argentine society.
57 In fact, this was explained by a first year course professor when heexplained that by attending classes students “would learn what the“whims” of professors are”.
48
Conclusion
Argentine public legal education can be better understood if
the history and actual conditions of the university and
research systems are taken under consideration. Indeed, the
Reform principles and the political influences over legal
education still have a strong influence on legal curriculums.
And the case study of the U.N.R. Law School shows how
political changes shaped the curriculum. However, Law Schools
are not a mere reflex of socio-political conditions. The
three fields’ theory of education that Bernstein constructed
gives a deeper understanding about the autonomy of Law
Schools that allow comprehending the differences among them.
Doubtless, the production field of legal knowledge is other
factor that has to be evaluated to better apprehend legal
education features. As it was stressed, Argentine academician
legal realm is still under the solid power of dogmatic
science which has its origins in civil law doctrine. These
kinds of legal studies, and the belief about its scientific
character doctrinarians maintain, determine a curriculum
divided into two strands: center and periphery. The division
does not respond exactly to Kennedy’s explanations but
effects are the same. Courses are thought to be more or less
important depending on how they are classified. The reforms
49
of the curriculum show, in the argumentations, that
professors believe that this separation is legitimate.
The dogmatic science model of legal study has an impact in
the legal education as a research topic. Indeed, very few
empirical studies are being conducted over it. Nevertheless,
efforts are being done to grow a new field of socio-legal
studies that includes legal education. The results of the
research I presented here, therefore, have a very limited,
and local, scope. However, I would be very pleased it they
could be interesting to think about the similarities and
differences with legal education in other countries.
50