THE STRUCTURE OF LEGAL EDUCATION IN PERU: NOTES FOR A DIAGNOSTIC
INTRODUCTION. -
According to a 1997 survey, (ENNIV 97) there were in Peru at that moment 33,686 law students registered in one of the
33 universities that offered studies leading to a law degree. 60% of these
students attend a private university, the rest in one of the State
universities. 53% of the students
follow their studies in the Capital of the country, Lima, in a trend that,
although not exactly, follows the trend of the general population ( about one
third of the country’s population lives in the capital); another 20% in other
cities of the coast, and 25% in
cities of the Andes highlands. Most universities offer studies that lead to the
degrees of “Bachiller en Derecho” (Bachelor in Laws) and “Abogado” (Attorney);a
few offer also the degree of “Maestro” (Master) and only one offers the degree
of “Doctor en Derecho” (Doctor of Laws). Under normal circumstances, the
academic year goes from April to December, even though there have been
instances in the past in which different arrangements have been made to fit
particular situations.
THE SOCIAL FUNCTION
OF LAW SCHOOLS.- As anywhere else in the world, the primary function of legal
education and law schools is to educate in the knowledge of the Law. But in
Peru, as in the rest of Latin America, and differently from the Common Law
countries and from former socialist countries, Law Schools have an additional
and very important function ,that is, to determine who is qualified to practice
the profession. In Peru, like in the rest of Latin America, there are no Bar
exams like in the U.S. of UK, or licenses or permits like in the Russian
Federation, but is the University Professional Diploma of “Abogado”(Attorney)
the one that allows a student to begin practicing the profession. Of course
there are some formalities to follow like becoming a member of the local Bar
association -which you do by attending a series of general lectures and paying
a fee-,or registering in the rooster of a particular jurisdictional court, but
the real control and authority to admit someone to the legal profession is
exercised by the respective law school.
THE STUDENTS.- As
it has been mentioned above, the total number of law students in Peru in 1997
was 33,686. The present number must have increased slightly by the creation of
a new law school that is growing gradually each year. To be admitted at a
university it is necessary for a student to have graduated from high school and
pass an entrance examination at the university of his o her choice. The
examination has two parts. One is a test of intellectual aptitude and the other
a test of knowledge. The ratio between candidates and those admitted varies
greatly from university to university. Curiously, entrance is more difficult in
some private universities that are the most expensive, than in State
universities which are practically free. Students who have obtained during
their school years exceptionally high grades are exempted from entrance
examination. With the only exception of one private university, in order to be
admitted as a law student it is necessary to have completed satisfactorily at
least two years of studies at the university in the area of Humanities, or to
have obtained any other academic degree. In some universities there are certain
courses in the area of Humanities that are pre-requisites to study law, like
History or Sociology.
There is sometimes
a problem for students transferring from Peru to a U.S. university on account
that after finishing the two years of university studies in Humanities a
student is ready to study law, but does not have a degree to show, or a diploma
from a “College”. In this sense the distinction from “graduate” and
undergraduate” has a different meaning in Peru.. All law students ,for us in
Latin America, are “undergraduates” until they obtain their first degree which
is “Bachiller en Leyes “(Bachelor of Laws),although they have already finished
the required two years of Humanities studies. Usually a student is not allowed
to become a “Bachiller” until ,practically, the end of the required five years
of law studies. Thus, the typical duration of the time spent at a university to
obtain a law degree is seven years: two of general studies and five studying
law. Only then we would call a student a “graduate”.
So, the
overwhelming majority of law students are “undergraduates”. The requirement in
order to become a “Bachiller en Leyes” was to write a dissertation or thesis
and defend it in front of a panel of Professors. Nowadays, this has been
replaced by an end-of-career exam that if the student approves it, grants him
or her the degree of “Bachiller”. However, if a student wants to write a thesis
instead of the end-of-career exam, that is still also accepted. Before a
student is allowed to become a candidate for the title of “Abogado”(Attorney at
Law”) and be able to practice the profession, there is now another requirement,
that is, a legal community service known as “Secigra Derecho”, in which
candidates must work ,for a year, in places designed by the Ministry of Justice
in the public administration as acceptable for the purpose. After the
completion of the service the candidate has to defend, in front of a panel of
professors, two real life cases, usually one civil and the other criminal or
tax or administrative. Once the student has received the professional diploma
from the Law School, the student must attend a brief series of lectures at the
local Bar Association, and pay a modest registration fee before being given bar
membership. Bar membership is compulsory in order to be able to practice the
profession. Finally ,bar members must register at the Superior Court( Court of
Appeal) that has jurisdiction over the Judicial District or Province or Region
where the attorney is going to practice. The largest Bar Association is the one
in Lima, the capital city, with a membership of approximately of 20,000. The
number of practicing attorneys in Peru is around 35,000. Of this number, 44%
work independently. Of the remainder, 31% work in the private sector and 25% for the State( Apoyo 1999). Once
they graduate, there are two universities which offer courses for obtaining a
“Maestria”(Master in Laws) ,and only one which grants the degree of “Doctor en
Derecho” (Doctor in Laws, and equivalent of a Ph.D.) after two years of studies
and the writing of a thesis.
There are no
full-time law students in Peru, either undergraduate or graduate. Or ,at least,
no university or law school requires from its law students to be dedicated
full-time to their studies.
THE FACULTY.- There
is no full-time law faculty in Peru. The few ones that work full time are
involved in some type of administrative work. Most professors are part-time, or
what in the U.S. are called adjuncts. A few, also, have offices and are paid to
do a few hours a week of research or other academic work. Salaries ,in general,
are symbolic. Professors teach for the prestige that academic distinction
carries socially and professionally or for an authentic teaching vocation.
Universities do not encourage research except one or two universities that
publish the work of professors in their law journals, or print their books.
Among the professors are Congressmen, Cabinet Ministers, Justices of the
Supreme Court and other judges, Partners in important law firms, other private
practitioners, lawyers working for the government, etc. Professors are of three
classes: Auxiliary, Associate and Principal . A Principal Professor is the equivalent
to what in Europe is called a Full Professor. There is also the special class:
Visiting Professors, usually paid by their own foreign universities or by
institutions like AID or the British Council, as the salaries paid by local
universities, as has been said are rather reduced.
The appointment of
professors is ,according to the law that regulates universities, by public
competition and exam, in a rigorous process of selection. In practice, however,
in most universities,given the amount of the salaries , the large number of law
schools and the rather limited number of properly qualified professors the real
selection process is rather simple and varying greatly from university to
university. It is not uncommon ,at least in the larger cities, that many professors
teach at several universities at the same time. At the best law schools quite
significant number of teachers have post-graduate studies or degrees from
U.S.,U.K., French, Italian or Spanish universities. Also there are a few
professors who have been visiting professors abroad.
THE CURRICULUM AND
METHODOLOGY.- Apart from the studies in humanities during the first two years
at the university, the studies of law proper take five years. Some law schools
have experimented with flexible curricula by which if a student works hard
enough it is possible to conclude the proper law studies in less than five
years, but no less than four. The universities have the authority to make their
own curricula which is in many cases made of compulsory and elective courses.
The compulsory courses are generally: Constitutional Law, Civil Law( four
courses at least) , Criminal Law( two courses) Law of Civil Procedure, Law of
Criminal Procedure, Administrative Law, Commercial Law, Labor Law,
International Law, Law of Integration and Conflict of Laws or Private
International Law. The rest of the courses vary from a wide range in the best
universities to a more conventional one in the rest. At the master level there
are three fields of specialization offered by different universities: one in
International Economic Law, a second in Constitutional and Public Law and the
third in Private Law.
Traditionally,
the center of gravity for learning the law has been more the classroom than the
library, and even in the classroom prevailed more the lecture than the Socratic
discussion. And the end of the sixties and beginning of the seventies a very
ambitious reform project started at the leading law school in Peru, (the Law
School at the Catholic University of Peru) sponsored by the Ford Foundation and
with the cooperation of the Law School of the University of Wisconsin. The
program involved a new perspective to look at the law in order to save the gap
between law and reality, which affects so many of the legal systems in the
developing world; also a new approach to legal research, and, finally and
mainly, a more participatory and active way to teach the law promoting
discussion and debate instead of a passive acceptance of what the teacher says.
This project changed legal research and teaching in Peru, but only in one
university, and perhaps another followed the trend. But, there is still a wide
difference between one or two universities and the rest; between a group of
leading scholars and the rest.
As a result of
this, the vast majority of law graduates in the country get an acceptable legal
education in the traditional fields of Constitutional, Civil, Criminal and
Procedural Law. Not so much in Commercial Law, Banking Law, Securities,
Corporations, International Trade, Maritime or Air Law, which are still the
realm of an elite mainly from private law schools. Courses on legal ethics are
offered by no more than two or three law schools. Legal Education is still very
formalistic.
SOCIAL PERCEPTION
OF LAWYERS.- In a survey conducted for USAID (Apoyo ,1993) 68% of those
interviewed considered that attorneys made all legal procedures unnecessary
long. 75% thought that the quality of
Peruvian lawyers was either mediocre, bad or very bad. Only 20 or 25% thought they were good or very good.
The honesty of lawyers was also questioned by many of the interviewed.
THE PERUVIAN LEGAL
SYSTEM.- Peru’s legal system falls completely within the Roman-Civil Law
family. Whatever was the legal system before the Spaniards arrived in the 16th
century, very little if anything has been left. Until the 19th
century it was Spanish Law that ruled the country, and afterwards the laws were
modeled on the French Napoleon Code and the two or three Latin American
variations ( Velez Sarsfield, Bello, Freitas) Later, other influences were felt
under other more recent European models. The influence of U.S. has been
perceived in more recent years in commercial and corporations laws. And even in
the more recent Code of Civil Procedure it has been established the principle
of “Stare Decisis”, although has never been applied because it needs to be
established by the full Supreme Court “en banc”. The great challenge of the
legal system ,however, resides not in its academic credentials but in its
social efficiency. The informal economy and the low social prestige of the law
and lawyers defy all the efforts of academics. Without any partisan political
innuendoes from my part, the naked fact is that one of the. governments and
congresses that have committed the greatest number of Constitutional and Legal
violations, commands an unprecedented popularity after ten years in office.
Whatever other meanings this has what cannot be denied is that the majority of
the population thinks that the Law and the lawyers have not done a very good job.
And that is the main challenge for the 21st century