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