CHARACTERISTICS AND CHALLENGES OF LATIN AMERICAN LEGAL EDUCATION

Carlos Peña González[1], Universidad Diego Portales, Chile

 

 

 

 

In this essay I seek to provide a broad overview of the situation of legal systems and legal education in Latin America.  I first identify some of the historical process that must be kept in mind in order to understand the main features of legal culture (Part I). I then try to characterize some aspects of legal culture and I present general information on the primary legal actors (Part II).

 

I

 

1.         Some historic background on Latin American legal culture.  Spanish and Portuguese America are among the civil law countries. The region's legal systems--laws and institutions--took shape during the second half of the nineteenth century.  The main codes were issued around 1870. First came the civil codes--under the Napoleonic model--followed by codes of civil procedure and criminal procedure.  Latin American legal systems are generally heirs of the ideology of codification which, starting with its emergence in the late eighteenth century, came to prevail in European culture and then, albeit with some Baroque components,[2] in Latin America as well.[3] It is a characteristic feature of this ideology that it grants legislation monopoly over the creation of law, to the detriment of custom and precedent.[4] The ideology of codification also gives rise to legal dogmatics, which is the non-contextual analysis of legal systems and their internal relationships in order to reach decisions.  In the continental tradition--to which Latin American legal culture is heir--legal dogmatics was organized under the model of Euclidean geometry.[5] This explains why Latin American treatises on law seek to present the law in the form of deductive systems; even though the result in most cases is nothing more than a commentary on a legal text, usually for professional reasons.  This also explains why Latin American legal culture is reluctant to make use of inductive methods, such as the case method.  This feature of the region's legal culture is, as we will see, especially important in examining the teaching of law.

 

2.         In the continental tradition, the creation of law is entrusted to the legislature.  The doctrine of stare decisis and precedent have no formal standing. As a rule, Latin American legal systems accept judicial review of the law, following the North American model  (e.g. Argentina) or the Austrian model of constitutional courts (as is the case in Colombia). In addition, there is a Supreme Court or Tribunal which oversees interpretation of the law through appeal to a higher court. Civil procedure is predominantly in writing.  Criminal procedure has a strong inquisitorial tradition, although starting in the 1990s the region is undergoing a broad process of reforming its systems of criminal sentencing in order to make them more adversarial. All these features are generally part of a social and political context in which judicial bodies are not very independent and may be corrupt, negotiate allegiances, and have serious problems with independence.  The creation of law--through the work of lawmakers and courts--is generally very exposed to the shortcomings of the political market.

 

3.         Characteristics of the political system.  These features of Latin American legal culture must be understood in the light of how the region has unfolded politically. Most Latin American states took shape toward the end of the nineteenth century, although in some well-known exceptions, such as Chile and Uruguay, the state took hold earlier.  Latin American political systems have been highly unstable.  In most Latin American states, the existence of a constitutional state has been more the exception than the rule,[6] although since the late 1980s most regimes have been democratic.  The region tends to favor charismatic leaders, pressure by organized sectors, and military intervention.  Nevertheless, today stable democratic processes are in evidence in most countries in the region.  Even so, it can be said that state centralism, the existence of corporatist interests within the state, and very weak social capital are broadly characteristic of the region.

 

4.         Characteristics of the region's economic evolution. Economically speaking, Latin America has undergone major changes starting in the 1980s as a result of the fiscal crisis that it underwent.  The process may be described as a transition from a state-led development pattern to one centered on the market and open trade. Until the 1980s--with the exception of Chile--the region granted the state a major role in the economic system.  Today, by contrast, the state's assigned role is more to regulate the market than to intervene directly or act as a producer.  The most obvious manifestation of this process is privatization, by which ownership of companies or resources historically held by the state are transferred to the private sector.  The result of this process is that many bodies of law in the region have become significantly outdated; free trade and globalization have become increasingly important; the free market exerts a strong demonstration effect and is pressing toward democratization through consumption; and as a result of economic  privatization, litigation is increasingly significantly.  There is evidence that a greater amount of litigation is occurring in Latin American societies and in a more diverse manner than was the case twenty years ago.  It is likely that this litigation explosion is being affected by the privatization of the economy, the deterioration of primary groups (family and communities) and other forms of spontaneous social control, and the demonstration effect of the market.

 

II

 

5.         The legal professions in the region. The legal professions in Latin America now tend to be differentiated into different roles depending on the complexity of the legal system.  There are lawyers (ranging from the self-employed professional to the member of a large law firm); judges (who in some countries have specialized training beyond that of lawyers[7]); prosecutors or staff members of the public ministry;[8] defense lawyers; notaries; and registrars of real estate.[9] Women are increasingly found in the profession, and in relatively greater numbers in the judiciary and administration.[10]

 

6.         All these functions entail prior studies in the practice of law generally equivalent to a university degree in law, which is not that of a doctor,[11] but of a licenciado or sometimes that of a bachelorate [bachillerato].[12]   Law students usually begin their studies at around age eighteen.  When they begin to study law, they have completed approximately twelve years of study in primary and secondary school and their social experience is not very diversified.[13]  Primary and secondary teaching vary considerably, depending on whether they are private or public.  Nevertheless, a first-year law student has a general background in the humanities (history and literature) and an elementary training in mathematics, but not in the sciences.  Latin American university students are generally from higher income brackets, and hence there is an informal selection system for the university.  The students from higher income brackets are the ones entering the university in the largest numbers and are most likely to do well there.  In Latin America, the route to social mobility offered by the university is no more than relative.[14]  Hence, some doubts have been raised about whether it is a good idea to maintain free universities.[15]  Today, the main problem of universities in the region--including law schools--is that coverage (the number of students[16] and professors) has grown but the amount of funding for the entire system generally declined during the 1980s and early 1990s: the result is that spending per pupil in higher education (particularly public education)  is generally inadequate.  The huge and expanding numbers of people will make innovation ever more expensive.

 

7.         Characteristics of the course for a law degree. The law course lasts five or six years in Latin America and is available in public and private universities.[17] As a general rule, public university systems in the region do not screen entrants.[18] The private higher education system sometimes has admission tests.  The result is that the dropout rates in law studies are generally high during the first year, and so in practice it operates as a screening method.  To obtain the academic degree qualifying one to practice as a lawyer, one needs--besides five or six years of study--to prepare a thesis and a degree examination. Moreover, in some countries in order to obtain qualification and to work as a lawyer, one must provide services free to low-income people (this is the case in Chile, for example).  In addition to these requirements, there are sometimes further barriers to entering the market: in a number of countries one must be a member of the bar association to practice the profession, and hence this organization is accorded ethical control over this activity.  Chile is an exception and does not have such a barrier to entering the market.  In 1998 the number of lawyers per one hundred thousand inhabitants, which continues to rise, was as follows:[19]

 

Country	No. of Lawyers		Lawyers / 100,000 inhabitants
Argentina	50,000		14.76
Barbados	270		10.38
Bolivia	5,900		8.15
Brazil	168,245		10.58
Chile	9.926		7.08
Colombia	68,000		19.68
Costa Rica	6,300		18.82
Dominican Rep.	35.924		46.24
Ecuador	9,350		8.33
El Salvador	4,200		7.45
Guatemala	4,682		4.54
Guyana	243		2.95
Haiti	6,339		9.01
Honduras	4,447		8.09
Jamaica	1,500		5.95
Mexico	336,568		28.08
Nicaragua	1,200		2.81
Panama	2,000		7.74
Paraguay	3,800		7.97
Peru	32,000		13.69
Trinidad & Tobago	1,500		11.61
Uruguay	5,193		16.4
Venezuela	31,350		14.89
AVERAGE	12.38
STANDARD DEVIATION		9.5

 

The number of lawyers is generally increasing (in Chile, the figure in the early 1980s was 5 per 100,000). Among the possible reasons are the rising coverage of higher education system (although available funding is not increasing, as has been noted) and the growth of litigation (resulting from the decline of primary groups and the privatization of the economy).

 

8.  Characteristics of legal education.

   8.1 Content.  The law curriculum in the region is generally oriented towards systematically delivering information.  This information is related to the laws formally in effect and it centers on disciplines and the main codes more than on institutions. [20]

   8.2 Evaluation. Evaluation of the learning process is highly ritualistic and formalistic and a degree of authoritarianism is evident in the teacher-student relationship.  Above all, it emphasizes memorization and retention of information previously imparted by the professor. Skill in library research or in writing papers is generally not valued.

  8.3 Teaching methods. The prevailing method in teaching in the region is the "lecture class" in which the professor systematically presents information.  Case study and analysis or jurisprudence is not given prominence. The case method is virtually nonexistent. What is paramount is the expository, central, and authoritarian role of the teacher.  Instead of classroom discussion and debate, students ask questions about what the professor has presented.  These features of the teaching method are no doubt related to the origins of the Latin American legal system (see above I 1,2), whose centralism reflects the culture of the region (cf. above I.3), and the weakness of the academic profession, which is in turn a result of the lack of funding for the education system.

8.4 The academic legal profession. One of the most common features in the region is the absence of a community of professional academics devoted to researching and teaching the law on a full-time basis.[21]   This is characteristic of the entire university system but it is obviously more accentuated in law schools.  The region's universities do not offer enough incentives for being exclusively devoted to academic life, and do not have a strictly meritocratic academic track.  To this may be added the absence of a paradigm favoring research.[22]  The upshot is that academics in Latin American law schools are primarily recruited, with no competitive procedure, from among the most prestigious lawyers who are intensely involved in pursuing their profession.  Consequently, they are playing incompatible roles: a lawyer's commitments to being active in the legal system keeps him from critiquing the legal system as a whole.[23]  This situation is likely to worsen, given the continual expansion of this sector and fact that funding is not increasing. There are, however, some factors that could correct the situation: the reform of the justice sector in Latin America (promoted by international agencies based on diagnoses made by neoinstitutional economics) is offering some opportunities for research in the legal realm.

 

9.         The legal profession and the challenges of teaching.  Several phenomena pose urgent challenges to the teaching of law in Latin America.  The rising number of lawyers will exert pressure to produce greater stratification within the profession and greater competition in the pursuit of revenues.[24]  This is likely to simulate the rise of large legal firms, a trend already underway in the region.[25]  The changes that the region is undergoing--the privatization of the economy, the globalization of life, the rise in the medium term of complex markets--will demand of the legal profession knowledge and capabilities that Latin American law schools are not providing today.  At the same time, the rising number of lawyers will increase competition in the pursuit of revenues and will make advanced studies and specialization ever more necessary.[26]  The speed of the changes that the region is undergoing in its economic, administrative, and judicial structures--a result of the reform of the economy and of the state, cf. above I,4--will make lawyers press for ongoing education and, again, will make further training in the area of skills more urgent; in developing abilities in searching for information; in the use of alternative means for conflict resolution; and in oral litigation techniques.  In short, the displacement of functions that the Latin American state is undergoing today [27] will spur the emergence of public interest litigation, which is thus far almost nonexistent in Latin America. It is likely that in the future Latin American law schools will tend to differentiate themselves from one another by their ability to respond to this set of challenges.  The ability of law schools to adapt to these new realities will depend on their degree of internationalization, their academic communities, the degree of flexibility of their curricular structure, and how well-funded they are.