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Legal education in Argentina: from ideals of justice to a value-free conception of the law

Carlos A. Lista

Professor of Law
Universidad Nacional de Córdoba

[email protected]

Copyright © 2011 Carlos A Lister
First published in the Web Journal of Current Legal Issues.

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Summary

This paper deals with the dominant pedagogical model adopted by law schools in Argentina, where an instrumental/formal conception of law and justice prevails. It analyses the very marginal presence of value-based content and the weak development of the reflective and critical skills of future lawyers. Results from previous research work are used, especially focused on the law schools of the Universidad Nacional de Córdoba. The paper argues that the dominant legal education model hinders, or rather prevents, the development of the skills required for moral and ethical reasoning. The discussion centres around the possibility and implications of a value-free legal education, focusing particularly on its socialising effects on the professional attitudes, awareness and identity of lawyers. 

A first draft of this paper was presented and discussed at the Workshop One world, different cultures, clashing values: legal education in a global context, held at the International Institute for the Sociology of Law, Oñati, on April 23-24, 2009.  I want to acknowledge the Institute for all the support given to the organisation of the event and thank Fiona Cownie for her support and cooperation as a co-organiser, her extraordinary managerial skills as well as for the time and effort put in before, during and after the meeting. I also would like to thank Silvana Begala, Anthony Bradney, Fiona Cownie, Paul Maharg, Luis Fernando Pérez Hurtado, Annie Rochette and Julian Webb for their participation in the workshop and their insightful comments and ideas which made me think about new interesting aspects of legal education and the legal profession.

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Contents

Introduction
Methodology

1. The dominant legal-pedagogical discourse
2. Legal education and ethical inculcation

Conclusions and implications

Bibliography

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Introduction

This article deals with the dominant teaching model adopted by law schools in Argentina, where an instrumental/formal conception of law and justice prevails.  Attention is focused on the tension between formal legal thinking and substantive or material legal thinking expressed in values, as manifested in the pedagogical discourse employed at the Law School of the Universidad Nacional de Córdoba. Such concepts have been taken from the distinction made by Max Weber when he elaborates on social action (rational according to purposes or values, affective and traditional) (Weber 1998, p 20-23) and on legal thinking (he combines the rational-irrational and the formal-substantive or material categories) typologies (Weber 1998, especially p 588-621, 648 and following). The first typology has been used here to understand the typical connection of meaning (dominant/peripheral) made by those who participate in the pedagogical relationship (professors and students) and the graduates who practice the profession. The typology related to different forms of thinking has been used to analyse the legal and the pedagogical legal discourses (dominant/peripheral). This last distinction helps to incorporate a power perspective that the empirical evidence itself claims.

Given the hegemony of the formal-rational legal model and the instrumental orientation of law degrees, our interest focuses on describing the poor development of value orientation in legal education and the weak presence of ethical and moral knowledge, as well as the scarce attention paid to the development of critical thinking and reflective skills. This aim becomes particularly noteworthy when we recall that justice is the value by definition associated with law, the legal professions and legal education. This last argument and the consistency of the emphasis on a value-free conception of law and legal education render it relevant and meaningful to explore what is learnt when such a model prevails and what type of value and ethical orientation is acquired by students. It is argued that the dominant legal education model hinders, or rather prevents, the development of the skills required for moral and ethical reasoning, which is later reinforced by legal practice.

In this article ‘values’ are defined as ‘enduring and overriding notions about how the world ought to be and what is judged valuable or important in life’ (Boon 2005, p 229). Along with attitudes and beliefs, they comprise the highest level of abstraction of personality organisation (idem). Socialisation is taken to mean any process of cultural learning which develops by the mere participation of the individual in social structures and processes. It implies intended and unintended consequences and develops in stages or phases which are not necessarily linear. The socialisation of lawyers comprises at least two main stages. The first one starts with the entry into the educational context and evolves until graduation. During this process, the student becomes a member of the educational agency and is exposed to its particular organisational culture and practices. The second stage begins with access to the professional field and takes place within the different workplaces in which lawyers operate during their careers.

This article is divided in two main sections. The first describes the dominant pedagogical discourse based on the review of the literature and our own findings; the second explores the place of values and the ethical inculcation of these educational contents.

Methodology

The description and reflections on legal pedagogical discourse are primarily based on the empirical results of our own research experience. Data were gathered between 1998-2008 using different techniques, both quantitative and qualitative, applied to different samples with students and teachers from the Law School of the Universidad Nacional de Córdoba: a teacher survey (283 from all teaching positions); a student survey (998 from all the stages of the undergraduate programme (first to sixth year); ethnographic observation of thirteen courses on ‘legal dogmatism’ (three successive classes per course, with a total length of forty-five hours of observation); nineteen interviews with the teachers observed; one focus group with students from all the different stages of the undergraduate law programme; documentary analysis of the syllabuses of thirty-one subjects; texts produced by students in an experiment related to social conflicts in Brazil and Córdoba, about land property and housing rights (70 texts drafted by 140 students); forty-eight short academic autobiographies written by students from the fifth stage of the programme and finally; forty-three texts produced by students from the fifth stage, analysing an article by Duncan Kennedy (2001) on legal education in the USA.

1. The dominant legal-pedagogical discourse

A number of studies and pieces of research provide, from different theoretical perspectives, consistent evidence and conclusions regarding two aspects of legal education. On the one hand, they reveal the existence of a hegemonic legal education model characterised by a high degree of stability and homogeneity; and on the other, in western countries, they indicate that, despite differences between legal cultures and social and political systems, similarities prevail and countries share a wide range of dominant features in legal education (Agulla 1990, Avila Fegundez 2000, Berisso et al 2004, Bianco et al 2004, Bourdieu 2000, Cardinaux y González 2003, Demarche et al 2004, Fucito 1995 and 2000, González y Cardinaux 2004 and 2010, González Mantilla 2008, Jacques Parraguez 2004, Kipper 2000, Kennedy 2001, UNC, 1998, Rodrigues 2000, Rodrigues de Oliveira 2000, Vanossi 1989 and 2000, Webb 1998).

The findings of our own research programme are coincident with the data, analyses and principal conclusions of these studies, which emphasise the coherence, consistency and continuity of the dominant legal education discourse and consequently, the strong reproductive potential of legal education at both the macro-institutional (agency, curriculum and syllabuses) and micro-relational (classes and assessment) levels (Brigido, Lista, Begala y Tessio Conca 2009; Brigido et al 2005; Lista 2006, 2005a and b, Lista y Begala 2005; Lista y Brigido 2004; Lista y Begala 2003a and b; Tessio Conca 2003; Brigido y Tessio Conca 2004; Lista y Brigido 2002a and b; Brigido y Tessio Conca 2004; Brigido 2002)(1).

These similarities can be found in both the instructional and regulatory discourses, the two main components of any pedagogical discourse according to Basil Bernstein’s terminology. Bernstein (1990, p 106; 1997, p 189 and 1998, p 62) states that all educational institutions use a pedagogical discourse by means of which other discourses are appropriated and placed in a special relation to one another with the aim of selective transmission and acquisition. The pedagogical discourse is a discourse without content of its own; it is used to circulate and re-contextualise other discourses, the legal discourse, in this case. Its stability would explain its efficacy in the reproduction of the order that both kinds of discourse (legal and pedagogical) contribute to create and maintain.

The instructional and the regulatory discourses are the two components, at least analytically, of the pedagogical discourse. The instructional discourse creates special abilities and skills and determines the knowledge to be transmitted and the abilities the students are expected to develop which are deemed necessary and pertinent for graduates’ performance in a particular area of professional practice (legal, in this case). The regulatory discourse generates order, professional relations and identity; it is a moral discourse with rules that establish the criteria concerning the proper nature of the subject, his/her expected behavioural attitudes and proper postures. Therefore, it is clearly socialising, with rules which set and instil some kind of morality, control and discipline. Both discourses raise awareness and are the basis for the educational process undergone by a lawyer, not only as regards the instruction received, but also as part of the socialisation process.

The analytical distinction between the instructional and regulatory discourses is essential to any understanding of their reciprocal relations and influences. The regulatory discourse prevails over the instructional discourse because the latter is embedded in and subordinated to the former. This implies that, although the instructional discourse establishes, for instance, the teaching contents and objectives (contents and skills) and the sequential rules and rhythm (what must be learned in a given period and the time allowed for it), it is the regulatory discourse that lays down the internal rules of the instructional discourse (Bernstein 1990, p 106). Why is the regulatory discourse dominant? Quite simply because there is no instruction without order. The regulatory discourse is, in appearance anyway, the more ‘silent’ of the two because the instructional discourse tends to be the object of greater formalisation. While the instructional pedagogical discourse appears as the visible curriculum, the regulatory discourse is not explicit and operates as a concealed curriculum.

It may be interesting to note that in debates and discussions about professional education and the educational structures and processes of such education, quite often attention and criticism is focused on the instructional components of pedagogical discourse, its’ most visible side. When, for example, educational efficiency and quality are discussed, there are arguments both in favour and against different policies and actions centred around curricular reforms which propose, for instance, a change of objectives, contents and/or teaching system. Although we by no means wish to belittle the relevance of these changes, what is not often discussed are the aspects related to the regulatory components of the pedagogical discourse, which include the instructional components, and therefore operate at a more ‘profound level’. Notwithstanding the frequent criticism related to the deficits and exaggerations of the instructive contents, it is difficult to deny the socialising impact of legal education on the development of the legal awareness and identity of law students.

Because of its socialising influence, its relative ‘invisibility’ and ‘silent’ existence, the regulative discourse is particularly interesting in relation to the analysis of the values and ethical contents of legal education and the socialisation of law students and lawyers. Rational legal formalism, as a privileged model of the instructional discourse, has a very strong self-reproductive force which legitimises the pedagogical ‘action’ and ‘authority’ (Bourdieu and Passeron 1981) and the ‘pedagogical discourse’ (Bernstein 1997, p 188 and following) formal in its contents, as well as dogmatic and doctrinaire in its teaching (Lista y Brigido 2002). The quoted authors remark on the reproductive efficacy of the teaching (in this case, legal) in terms of its capacity to operate silently and without being noticed, transmitting not only the ‘cultural arbitrary’ ‘as if it were objective and inevitable’ but, moreover, also imposing an equally arbitrary way of inculcating it (Bourdieu and Passeron 1981).

Legal teaching constitutes a field in which the ‘symbolic violence’ Bourdieu and Passeron (1981, p 46ff) talk about is very clearly and powerfully manifested. On the one hand, with a high degree of efficacy, it conceals the force relations between social classes and groups in which it is rooted and at which its regulation is targeted (Bourdieu and Passeron 1981; Kipper 2000, p 66); and on the other, its own arbitrariness prevents the underlying force relations being noticed by both the dominated (the so-called lay people) and the future reproducers of the model (lawyers and teachers).  Coinciding with Bourdieu and Passeron, Bernstein (1997, p 139) reaffirms the close relationship between power distribution and the dominant cultural categories and the symbolic control wielded by education, stating that ‘the symbolic control translates power relations to discourse and discourse to power relations’.

If coherence, consistency and permanence are pre-conditions for an efficient process of socialisation (Durkheim 1992), it can be argued that the efficacy of the hegemonic pedagogical discourse and the practices it generates are projected well beyond the education law students receive, to influence their future professional performance. This potential of education is what Bourdieu and Passeron (1981, p 72 and following) call ‘pedagogic work’, whose inculcating effects are prolonged beyond the pedagogical action even after it ceases to be, and which brings about a long-lasting education (the habitus), which results from the internalisation of cultural arbitrary principles (Rodrigues de Oliveira 2000, p 77). The internalised arbitrary practices are perpetuated because the habitus generates reproductive practices of objective structures. The relevance of the pedagogic work is the fact that it generates the ‘legitimacy of the product’ and consequently, the need and inclination to consume this product which has been legitimised by the pedagogic authority (Rodrigues de Oliveira 2000, p 77).

1.1 Instructional contents: knowing and knowing how

An analysis of the contents and structuring of several law programmes, of the syllabuses and the bibliography used and of the practices implemented in the classroom helps to detect the privileged contents of the instructional discourse; in other words, the contents which are given priority, are legitimised to be transmitted within a given context and which are privilege-granting in the sense that they bestow discursive power and status onto the individual transmitting them (Bernstein, see Lista and Brigido 2002, p 107-108). This analysis helps to identify the key aspects in the construction of the ‘legal arbitrary’.

Above all, one may observe that the transmission of knowledge prevails over the development of skills. Three aspects are combined: centrality of the law and  monodisciplinarity; fragmentation, strong classification and hierarchisation of knowledge and reproduction of the legal positivist and formalist approach as a hegemonic model.

Teaching is predominantly based on the transmission of legal texts with a formal legal discourse being strongly present at all pedagogical levels (curriculum, course syllabuses, classes and assessment). Educational contents are classified and assigned a hierarchical status as juridical (private law, penal law, public law, procedural law, etc) and extra-juridical, such as ethics, as well as the historical, social, economic and political foundations of law. Hence, from the very same structure of the programme two sub-fields of knowledge can be distinguished, an ‘internal’ or ‘central’ kind of knowledge and a ‘peripheral’, ‘auxiliary’ knowledge, ‘external’ to the former and, in any case, ‘subsidiary’ to it (Lista y Brigido 2002, p 123 and 330). This separation is consistent with the kind of ‘collection curriculum’ (Bernstein, 1977) which characterises traditional law school syllabuses. The curriculum, as a set of messages to be transmitted (Bernstein 1977, p 75-80), implies principles by which, from among all possible contents, some are granted a special status which renders them valid for transmission, and principles by which the contents establish an open or closed relationship between themselves. This relationship between contents allows Bernstein to distinguish between two types of curriculum: if contents show a closed relation, it is a ‘collection’ curriculum in which the high status contents have a closed relationship and are strongly isolated. At the opposite end of the scale is the ‘integrated’ curriculum, in which the contents have an open relationship and the limits distinguishing one from the other are not clear.

The assumptions of legal formalism and positivism are introduced by the teaching agents as the only (and as such, irreplaceable) discourse, which can and must be improved by means of its own legal techniques. Therefore, the possibility of concealing its social and political origin, historical nature and, consequently, its contingency, demonstrates the power of this model to perpetrate symbolic violence. When strengthening the idea of the abstraction and universality of law, teachers and doctrinaires distance law and theory from their cultural and socio-political roots, thus fostering the reproduction and reinforcement of the postulate that prescribes that the hegemonic legal model is irreplaceable. The belief that holds that legal normativity is in itself an order or a system, established as unitary, coherent, complete (see Bobbio 1993, p 202ff) and, therefore, autonomous and self-sufficient, acts in much the same way. Early on, students learn the postulate proclaiming the centrality of law; they learn to identify it with the state norms currently in force and to conceive such norms as an autonomous, self-referenced system.

The instructional contents also involve skills and abilities (knowing how to) that teachers knowingly or unknowingly develop or aspire to develop in their students. Three main trends can be observed which are represented by three divisions: the first one is between the instrumental and the critical, the second between the cognitive and the expressive and the third between theoretical teaching and practice.

Firstly, the skills teachers grant privileged development are the instrumental cognitive skills linked to the study of legal texts (Lista y Brigido 2002, table 4, p 144). Memorising is preferred to reflection. A critical approach to the norms and other legal texts is not favoured, except when the goal consists of improving the legal system, strengthening its plenitude, consistency, autonomy and self-sufficiency. The legal engineering oriented by the instrumental aim of improving the normative system appears as the main and, to some extent, only source of internal criticism of the law.

Secondly, the legalist exegesis with little theoretical foundation is a methodological expository technique observed frequently in teachers’ pedagogical practices. This favours a passive a-critical reception of knowledge by students and does not encourage the development of complex skills, thus giving rise to learning conditions closer to indoctrination than to reflection, the content of which is the legal ‘cultural arbitrary’.

In general, teachers who introduce cognitive-instrumental skills as teaching objectives do not introduce expressive skills, a predictable result of the hegemonic pedagogical legal model (Lista y Brigido 2002, p 154)(2).

In specific terms, in relation to value-related teaching objectives, the development of the skills required to differentiate and select values, to generate a value system of one’s own and to adopt a value-based attitude which may influence the way behaviour is oriented are generally referred to only by those few teachers who are interested in the development of expressive skills. In a coherent manner, these objectives also appear to be linked to those of being aware of the consequences of legal decisions in people’s lives, of being interested in listening to different opinions and of paying attention to the philosophical and political points of view of teachers, judges and dogmatists (Lista y Brigido 2002, p 153).

Finally, it can be observed that one of the most consistent complaints that law students make in relation to the academic education they receive is the virtual absence of any focus on developing skills oriented at professional work.

The concept of ‘practical teaching’ and the contents corresponding to such teaching are very diverse and ambiguous. As Ziegert states (1998, p 194), they consist of ‘what the lawyer needs in professional exercise’; in other words, the ‘handling of the knowhow of the profession, a knowledge markedly technical and instrumental’ guided by exclusively  professional purposes, which is restricted to the achievement of favourable results, or, at least, as favourable as possible, to meet clients’ interests (Lista 2005, p 12-13).

The need is centred around ‘learning to “translate” the reality of practice into the legal’ (idem p 14); i.e., learning to translate the facts or data into the legal language by means of a process of interpretation, and providing said facts and data with a framework within the discourse of law. Students complain about the abstract education received, which does not train them ‘to build bridges between the theoretical and the practical’. In other words, ‘practical’ learning would mean developing the skills which may provide the new professional with access to the ‘secrets’ of professional exercise: an art and a technique rather than a science or a theory. The absence of such knowledge ‘frightens’, ‘scares’, provokes feelings of ‘insecurity’, ‘disappoints’ and does nothing to help students feel  ‘trained’; the image new professionals have of themselves is that of not possessing ‘expertise’. These are the feelings conveyed at present by students and recalled by graduates.

In addition to the legitimacy of the aforementioned complaints, the intensity, consistency and unanimity conveyed through them deserve two general considerations. Firstly, the effect of the high value placed on knowhow in law, in relation to the instructional discourse in general and the theoretical one in particular. It should be borne in mind that, in accordance with the Roman-Continental legal model, contents and skills in legal teaching are defined by the ‘theoreticians’. They are the guardians of law, it is they who impose the dogmatic-formal model of understanding legal matters and legal teaching, which occurs not behind, but face-to-face with professional practice. Teaching practice remains an unmet demand because the skills and knowledge demanded can only be acquired and developed during professional practice, not during the study phase. At any rate, as stated by Ziegert (1988 p 184), the core of the socialisation of legal teaching involves the reduction of any theory to the ‘theory of legal practice’. No wonder, then, that legal teaching tends to focus on legal exegesis, with little or no theoretical development, in which all cases revolve around  argumentative interpretation and  grounding (Lista 2006, p 9).

The other consideration involves the consequences of the aforementioned complaint or demand, used as justification to devalue and even exclude from legal teaching any kind of knowledge not strictly legal, and all skills not recognised as readily useful for the exercise of the profession. This realm of exclusion is identified as the factual, the theoretical and the critical. Accordingly, the demand for ‘more and better practical teaching’ represents not only a vacuum, absence or gap to be filled, but also an ideological instrument through which, within the legal field, practitioners confront theoreticians and both use the demand to control the limits of this field and maintain their monopoly over it. The extra-juridical field, i.e. that which is legally irrelevant, refers, then, to all other knowledge and skills not encompassed by the model currently in effect. What is legally ‘thinkable’ is distinguished from the ‘unthinkable’: a breach is clearly maintained between them. Control is maintained over the intrusion of other kinds of knowledge and other ways of understanding what is legal, by considering said elements as foreign to the ‘dominant legal arbitrary’, and capable of revealing the ‘mystery’ through which  it is imposed through the exercise of symbolic violence.

Consequently, it is hardly surprising that value-based reflection targeted at the external criticism of law and legal actions, recognition of the social, political and historical nature of all legal phenomena and of the ideological function of law, as well as its close link to power, either is very scarce or totally excluded from traditional legal education or is marginalised in the curriculum of law schools (Lista 2006, p 10).

1.2 The regulative discourse: being and relating

The breach between what the discourse guardians select and legitimate as the content lawyers should know and know how to, and what is irrelevant, unnecessary and secondary is preserved successfully by the concealed curriculum of the degree: the regulative discourse.

The application of the rules of this discourse always generates some kind of control and discipline (Lista y Brigido 2002, p 24-25) by means of a teaching-learning process which is more unaware and spontaneous than the instructional discourse, and which has a less explicit presence. The regulative discourse establishes the behaviour deemed appropriate within the different relational contexts. Although learning will be completed during the course of professional practice, students gradually incorporate basic rules that define their professional identity and awareness, as part of the long initiation and metamorphosis process which is built (and based) on and developed from the student’s own personal identity

What are some of the most relevant characteristics of the legal pedagogical discourse? I would like to emphasise four main related features: the centrality and authority of teachers, the passivity and indifference of students, the dogmatic and ritualistic style of teaching and finally, the arbitrariness and antagonism of assessment.

In traditional legal teaching, management of the pedagogic discourse is teacher-centred; typically, the teacher wields pedagogical authority and imposes hierarchy and authority. It is the teacher who has the ‘voice’ in Bernsteinian terms; a voice whose legitimacy as a ‘pedagogical authority’ is based on its performance as a connoisseur and specialist of the law. The teacher’s quality as expert and the academic recognition received are generated when knowledge and management of the complex legal norms are manifested and when the teacher can quote the law virtually in literal form. A typical sequence of classes constitutes a prolonged monologue of the exegetic type, predominantly dogmatic (Lista y Brigido 2002b, p 9).

Teachers try to reproduce the expository model of the great speakers; two of the typical features in such oratory are the magisterial tone and argumentative logic. Some communicative skills must be added: rhetoric, the appropriate use of the voice, gestures and postures, accompanied by some degree of histrionics. This model of pedagogical authority, which prevails in legal teaching, finds its most appropriate communicational framework in the practice of lecturing (Rodrigues 2000, Lista y Brigido 2000, Fucito 2000).

Complementary to the magisterial teaching model is the figure of the passive student, a student who, when confronted by the centrality of the professor, adopts a total immersion-in-listening attitude (Lista y Brigido 2002a, p 195). The kind of teacher described above is a functional component of a pedagogical relationship whose counterpart is the student-audience, the typical ‘pedagogic recipient’ of legal teaching. In such a context, students stick to their audience role, recognising the legitimacy of the contents and internalising them.

Our observations indicate that in a relational system where verticality is characterised by distance and separation between teachers and students and between students themselves, the typical psychological control mechanisms are isolation, embarrassment about mistakes, fear of being exposed before peers and teachers and fear of retaliation by teachers (Lista y Brigido 2002a, p 201). Also, individualism and competitiveness among the students.

Distancing, impersonality and hierarchy in pedagogical communication at law schools vary in intensity according to the personal characteristics of the teachers and the number of students in the classroom. Larger numbers magnify disengagement and hinder horizontal relationships between students by reducing the chances of meeting and interacting.

The monoparadigmatic study of law is accompanied by a unimethodological approach: legal dogmatism, which re-affirms the teacher’s authority and expert role and diminishes the possibility of open critical reflection. This is, also, a successful strategy for ensuring certitude, offering more or less stable interpretations of multi-vocal legal texts by means of recourse to authority.

Although all educational relationships are structured according to some power asymmetry, dogmatic teaching is, by definition, manifestly hierarchical and, as a counterpart, generates the corresponding attitudes by those who receive the message. Law students may be (and generally are) compelled not to choose or are discouraged from doing so, a circumstance which fosters their inclination to a-critical reception and apathy. When dogmatic components prevail in pedagogical communication, students very quickly find out that legitimate communication is achieved by adapting their own discourse to the speech of their teachers. A usual strategy in response to the dogmatic authoritarian message of many teachers is generally to adopt an attitude of silent acquiescence which simulates acceptance of the teacher’s discourse in order to avoid unfavourable opinions that might endanger the main objective of most students: passing their exams.

In the specialist hierarchical transmission of legal discourse, in particular through the regulative discourse which imposes order and hierarchy, the teacher initiates the students into a way of ‘being a lawyer’ and of ‘thinking legally’, an identity and awareness which last well beyond the pedagogical action, when the graduate joins the labour force.

Bourdieu (1985, p 202) points out that during pedagogical transmission, the student’s understanding of what is communicated by the teacher does not count as much as the teacher’s ‘authority’ through the use of stereotyped language. The context of a master class imposed, to some extent, by the traditional institution, severely influences the behaviour of both teachers and students and hinders any effort to establish dialogue between them.

The teaching techniques used are predominantly oral and argumentative, and learning is individual. Students’ participation is very limited and in most cases managed and controlled by the teacher. One of the most usual resources used by teachers consists of managing students’ access to discourse and setting a quick pace in class, thus leaving little time for anything else (Lista y Brigido, p 2002); the teacher not only regulates and decides what is said, but also establishes who says it, how it is said and for how long.

Adopting a dogmatic teaching strategy is functionally linked to the ritualism of pedagogic communication. Ritualism, in turn, objectifies the formalism in relations and communication. Dogmatism in legal teaching strengthens the control that the teacher exercises over discourse; taken to an extreme, it arbitrarily fixes the limits of correct (and incorrect) knowledge and prevents any possibility of reflection.

This pedagogical style additionally strengthens the centrality of the norms and reinforces the assumption that legal knowledge is not built during the teaching-learning process, but is rather something objective, which is simply transmitted. Students have incorporated such assumptions and accept a priori the teacher’s dominant discourse, before which they sit as a mere audience. Consequently, they tend to look unfavourably on any attempts by their classmates at participation or communication.

It is during the assessment process(3) that the dominant features of the pedagogical communication are more clearly manifested. In fact, exams constitute the ultimate instance in the social construction of the pedagogical discourse, materialised in the curriculum, the syllabuses and the teaching-learning practices.

For law students at traditional law schools, examinations constitute a climatic moment towards which all efforts are oriented because, in general, for the average student, passing exams is more important than actually learning. In this sense, exams represent the end of a process in which the dominant pedagogical discourse is clearly evident; particularly as regards its regulative components. This is why exams represent the most ‘dramatic’ moment of the students’ ‘initiation’ process. Additionally, exams are the true rituals of the hierarchical exercise: teachers make use of a considerable amount of concealment, discretion and arbitrariness. Students are given no margin for prediction as regards the examination contents, criteria, process or results, all of which causes a great deal of anxiety and insecurity. In class, students may chose not to participate actively, or may remain anonymous, but exams are mandatory and if conducted orally, the link is direct. Furthermore, a highly valued issue is at stake: passing on to the next level. It is the moment in which students acquire temporary visibility and cannot remain passive; they must demonstrate and show what they know and their know-how, who they are and how they relate to others.

Exams are momentous. The problem students must face (and solve) is that they often do not know what is expected of them, or find that what is expected of them varies, is uncertain, ambiguous or contingent on facts and details of which they are unaware. In such a context, it is difficult for them to adopt postures which allow them to establish a communication which may be ‘deemed legitimate’, because the definition of what is legitimate varies. A pivotal issue brought up most frequently and spontaneously by students is the arbitrariness manifested by teachers during exams. This feature seems to go hand-in-hand with the dogmatism and the authoritarian attitude they exhibit in class. Arbitrariness does not result only from criteria disparity, but also from teachers’ personal conditions and characteristics, which influence their evaluative judgement (non-academic personal commitments, their ‘mood’ on any given day, exam schedules, etc.)

Law teachers tend to use criteria rules ambiguously, display a high degree of scatterbrained behaviour, discretionality or lack of explicitness concerning the rules they deem to govern legitimate or illegitimate communication, and are notoriously unreliable as regards sticking to them, concealing them or contradicting themselves. Such communicational strategies, whether conscious or unconscious, deliberate or spontaneous, generate the kind of insecurity and unpredictability which baffles, frightens and causes anxiety, uncertainty and discomfort. Additionally, more than at any other time, they demonstrate the extreme asymmetry of the pedagogical relationship, its verticality, dogmatism, power concentration and inclination to authoritarianism.

The important socialising effect of examination activities and processes cannot be denied; students confirm, amplify and dramatise the rules and regulatory practices they learn in class. If learning proves successful, then through the many interaction processes, students acquire and consolidate beliefs, values and attitudes which they will continue to incorporate and articulate as they develop the professional identity and awareness that later on, after they have graduated, they will need in their professional activities.

2. Legal education and ethical inculcation

 In light of the results of our research and the conclusions drawn by numerous studies, it is worth exploring the consequences of the aforementioned pedagogical discourse on the development of ethical attitudes and values among law students and lawyers. At this point it is worth noting that, in the interests of clarity and a better understanding, the socialisation process of lawyers should be viewed as a sequence of interrelated stages. According to Boon (2005, 236), ‘The education and training of lawyers has four stages: the initial, vocational and training stages and the post-qualification compulsory continuing professional development (CPD) phase’, all of which are relevant to motivation and values. The first two refer more strictly to the legal education, the third could be placed in an intermediate position in which the student starts learning the rules of professional performance and the forth stage is developed in the occupational field. Drawing conclusions from our own findings (Lista y Brigido 2002a; Brigido, Lista, Begala y Tessio Conca 2009), we shall start by focusing briefly on the first two stages.

2.1 Initially . . .  (weak and diffused value orientation)

In her analysis of the pre-entry stage, Tessio Conca (2008, 2009) groups the reasons given by students regarding their decision to study law into four categories: to provide a service to society, based on a social and humanitarian ideal; the influence of family or friends; a particular inclination for social sciences; and social prestige and employment concerns. A fifth category, which is not infrequent, refers to a choice made by ‘discarding other careers’. In these cases, a career in law is neither a first choice nor the result of a clear motivation or interest. Different combinations of motivations are usual.

When students and graduates reflect upon the reasons behind their decision to study law, their answers vary widely. They often refer to a general inclination for the humanities and social sciences, family influence expressed through their parents’ desires or by a lawyer relative, or an early calling which has remained strong over the years. When the time comes to choose a career, considerations related to meeting value expectations(4), usually combined with other reasons, often hold sway. However, when analysing the most compelling reasons, preference is given to those related to instrumental purposes, such as the search for prestige, power and employment opportunities. Our results coincide with Boon (2005 p 236), in that when choices are ‘more purposive, they are explicitly linked to employment concerns’. Economic reasons are mentioned only exceptionally; although perhaps this may be because this answer may not be deemed ‘socially acceptable’ or ‘elegant’, whereas ‘employment opportunity’ is.

Doubts and confusion are not infrequent, as are other preferences which may not have been met before. A common belief influencing the decision to study law is often the idea of obtaining a ‘broad educational background’. Cases of students who mention ‘providing a service’ are less frequent that expected, i.e. those who have a vocation to meet the needs of ‘the other’; even –in a very few cases- the inclination to contribute to seeing justice done. In any case, this motivation is expressed in very general terms.

Tessio Conca’s findings are coincident with Boon’s. ‘There is little expression of motivation to offer public services, or helping people, in the explanation of any of the participants of why they choose law’ (Boon 2005 p 238).

Also quite remarkable is the coincident definition of what is meant by ‘service’ and ‘public service’ given by law students from different social and legal cultures. When they refer to this concept, they generally mean ‘helping people’, ‘usually poor or otherwise disadvantaged members of society’ (Boon 2005, note 39, p 257). Boon asserts that this meaning is also explicitly found in Schleef’s study (1997) and implicitly in Sherr and Webb’s study (1989).

2.2 Further on . . . (indifference and value dismantling)

Now, the question is to what extent a career in law and professional practice helps students obtain the value orientations present initially. This stage corresponds to Boon’s ‘vocational and training stages’.

It is worth recalling two related salient features of the legal pedagogical discourse which permeates the institutional environment of law school. On the one hand, the marked presence of an explicit positively-valued instrumental legal discourse, and, on the other, the absence, weakness, latency, weak legitimacy and silencing of the value-oriented legal discourse.

As important as the overemphasis on some areas are the silences surrounding others, i.e. what is absent or invisible. In our study, we found no reflection upon: a) the law as a conveyor of values; b) which values are encompassed by the law; c) the social, economic and cultural origin of such values and d) the consequences of incorporating values into norms and of the application of values by those responsible for serving justice and lawyers (Lista y Begala 2005, p 9-10).

After having been immersed for several years in the cultural atmosphere of law school, those who went on with their studies(5) showed a certain degree of discontent or disappointment, although they seemed to have adapted, putting behind them or renouncing their initial motivation and giving it relative weight.

When the students talk about their expectations for the future or about what they plan to do after graduating, most refer either to continuing their studies at a higher level or to practicing their profession. They mention areas such as justice administration, ‘free’ practice as lawyers, or the idea of becoming a ‘litigation attorney’. Interests associated with meeting their early value expectations in the choice of a law degree were absent.

With a view to the future, students who said they had maintained their value expectations were thinking of engaging in professional practice as an alternative or sideline to that of ‘litigation attorney’, or even of working for the justice administration. It is interesting to note that, when describing the weak points in their education, those with expectations related to values did not particularly stress the absence of practice, as the majority of their classmates did (Lista 2005a), but rather highlighted the absence of reflection, critical thinking, and a more thorough or ‘moral’ education as an important weakness.

Conclusions and implications

In his critical review of the literature, Boon (2005, p 232) asserts, on the one hand, that ‘there is little evidence that socialisation has much impact on values’ and that most of the research from the USA ‘suggests that legal education has a negative or neutral affect (sic) on students’ moral reasoning’ and, on the other, that these findings are indicative of ‘a progressive homogenisation of attitudes and values towards a conservative view of legal role, away from idealism towards instrumentalism and against legal aid, public service or government work’ (6). Boon’s advice to exercise caution when transferring conclusions to other jurisdictions that could have significant differences in legal education and training is sound and should be taken into account. Nevertheless, he provides evidence from other studies carried out in the United Kingdom which is consistent with that provided by American studies ‘in finding the progressive marginalisation of altruistic motivation towards the socially disadvantaged.’(7).

The same conclusions can be drawn from the findings of the study carried out in Argentina (Tessio Conca 2009, Lista y Begala 2005, Lista y Begala 2010a and b), although the assertion that a ‘negative’ impact is no impact and that such a socialising effect is ‘neutral’ is arguable. In fact, the lack of concern regarding values and ethical issues, attitudinal homogeneity, conservatism and instrumentalism are, among other characteristics, evidence of the impact of this type of socialisation process. Ethical emptiness is neither neutral nor evidence of a lack of consequences.

Suspending judgement vis-à-vis law contents and its application favours the a-critical and implicit acceptance of the values consecrated by the laws currently in force. On the other hand, the same attitudes, behaviours and relationships would be reproduced due to the continuity, consistency and durability of those practices in which relations are markedly asymmetric and impersonal, authoritarian, arbitrary, individualistic and competitive.

As Kennedy (2001) states, hierarchy and the adoption of power positions are also learned, and law schools seem to be efficient at this, whichever juridical tradition they belong to. It could be said that the same occurs with formalist ritualistic postures and with instrumental, individualistic, competitive attitudes, particularly when the professional field exerts pressure in the same direction. Although it cannot be said with empirical validity that the ethical emptiness of the pedagogical discourse and the moral indifference of most law students will necessarily be reproduced by professional practitioners, attention should be drawn to the pedagogical work and its influence on the professional field.

The analysis of instructional discourse provides convincing evidence regarding the various consensuses existing in relation to the knowledge and skills meant to be developed and transmitted to students. The dominant consensus offers an instructional discourse which stresses and virtually reduces legal education to teaching legal texts, preferably laws, and prioritises the development of simple cognitive-instrumental skills. This consensus is hegemonic, since it is strongly legitimised both academically and professionally, and defines what is legally relevant and irrelevant. Legal education reproduces and re-contextualises it efficiently, consolidating among students a defined instrumental awareness (see Lista y Begala 2003) while at the same time strengthening a professional identity rationally oriented to goal achievement, rather than values.

Opposed to this is the peripheral consensus – peripheral both from a quantitative perspective and in light of its legitimacy level. It is a discourse which incorporates the teaching of contextual aspects of legal practices and texts, philosophical contents and values and intends to develop cognitive-critical and practical skills which help strengthen students' reflective capacity.

The instructional discourse, inspired by formal-rational legal thinking, aimed predominantly at developing cognitive-instrumental skills, occupies a great deal of space in the pedagogical areas of law school and accounts for a huge amount of the time dedicated to teaching-learning relationships. Consequently, legal rational-substantive or material  thinking (and with it value-oriented thinking) and the development of cognitive-critical and expressive skills are not only quantitatively reduced, but also devalued because they are placed in the field of what is juridically ‘unthinkable’. The contextualisation of law in its social and political framework, the critical valuation of the political-sociological function it performs and of the social consequences it brings about, of the justice/injustice of legal texts and judicial and professional practices are considered deviations both in legal teaching and in professional practice, being knowledge and skills foreign to the valid legal and pedagogical discourses.

The curriculum and the pedagogical practices of law school and its target profile are professional and technical, more in accordance with the maintenance of order and the promotion of political and legal engineering than with generating social change and achieving some form of substantive or material justice.

At the service of instrumental and technical rationality, the pedagogical model which prevails in legal education fulfils an important political function, that of reproducing a legal ideology functional to the exercise of state power and of the interests of socially hegemonic actors. It is the very capacity of formal instrumentality and its potential to generate order and beliefs about the authority’s legitimacy which makes law and the teaching of law tools potentially fit to consolidate new changes. This is the reason for the strength of the dominant model and its capacity to adapt to modifications.

Behind the hardly-convincing appearance of value-related neutrality, formal-legal law and teaching conceal value-related and moral contents which they convey and implicitly legitimate, not by emptying the values from the norms, but rather exactly the opposite -  by ignoring them and refusing to recognise their presence. The value neutrality postulate and instrumental ethics upon which it is based are not ideologically neutral.

By taking the values inherent in the norms as given, and not subject to revision; by relegating socially contextualised critical knowledge and reflective and expressive skills to the field of the legally non pertinent and ‘unthinkable’; by reducing the values of law to instrumental ethics and judgements limited to stating whether ‘this is legal or illegal’ (Kelsen 1993, p 126-127); the concept of values is reduced to validity, legal knowledge to technical knowledge, legal awareness to exclusively instrumental aspects and the resulting identity to that of a professional guided by pragmatic interests and objectives.

At a personal level, different degrees of disillusionment and concern are observed among both advanced law students and the lawyers interviewed(8). Most students agreed that their educational experiences at Law School have distanced them from value reflections and commitment to others. Legal training contributed to dismantling and emptying their views on law and legal practices from ethical considerations and to weakening any interest they may have had at the early stages of their training in social legal services. Individualistic aspirations are prioritised, along with the development of skills and practical knowledge for legal practice. We can agree with Sherr and Webb, cited by Bloon (2005, p 238), that ‘interest in public service, and private client work, was subordinated to intellectual, financial and status motivations.’

That stated above is not intended to demonise legal-technical knowledge. Rather, it is meant as a warning about its limitations. The rational-formalist model that modern law has adopted, which serves to identify it with science, could be subject to the same critical observations that Habermas (1971 and 1973) makes on the naturalist model in science, from which legal positivism takes its guise. The criticism levelled by this author begins by recognising, on the one hand, that scientific knowledge has abandoned the classical concept of theoria, which is aimed at emancipating human beings from the slavery of doxa; and on the other, has overvalued technical control, techne, based on the mastery or dominance of the expert who performs objectified jobs, while forgetting praxis, understood as conscious transforming action, as social and political practice. Thus, Habermas remarks on the insufficient condition of technical knowledge, which reduces these practices to technological practice (in our case, legal practice), and all issues to the technical issue, whose solution depends on the opinion of experts, far removed from value considerations and the participation of those affected by it.

Habermas’ criticism is aimed at the pretentions to supremacy of technical-instrumental knowledge and the de-politicisation involved in the division between theory and transforming action, aimed at improving human existence, the ultimate aspiration of the old theoria.

Legal thinking and the pedagogical activity that reproduces it may subject to the same critical observations, given their pretentions to emerge as the best –and, when taken to extremes, the only- form of valid knowledge regarding juridical phenomena, reducing cognitive interest to just one of its possibilities, i.e. that of providing technical solutions. Ultimately, it guarantees the power of legal experts and eliminates the possibility human beings have of gaining independence from the knowledge to which they are submitted, doxa.

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