Selected Aspects of Contemporary Legal Education at The University of Silesia: A Case Study In Polish Legal Education

Barbara Mikołajczyk

and

Zygmunt Tobor

Faculty of Law and Administration
University of Silesia
Katowice, Poland

<mikolaj@us.edu.pl>

Summary

This article uses a case-study of the Faculty of Law in the University of Silesia to illustrate how modern university law schools are responding to global pressures.

Contents

Bibliography

Introduction

The purpose of this article is to answer the questions “who teaches law, where law is taught and how the law is taught” in contemporary Poland by means of a case-study of the University of Silesia.  We first need to identify the group of people who are taught and only then what it is that is taught. Nowadays not only the teachers have an influence on their students, the level of teaching and the shape of studies but also the students and even potential students have an influence on the programmes and on the manner of teaching. The social and political reality in a given country or a region is another factor influencing the programmes and the way of teaching. To some extent, this relationship is similar to the economic relationship of “supply and demand”. However, our “product” is very specific because its nature may be compared only with, for example, the nature of colours, feelings, love, friendship and other similar phenomena. This issue will be discussed in the second part of this article. First, our students and teachers will be described, then our “product” will be discussed. 

Students and Staff

Currently there are about 6,000 students at the Faculty of Law and Administration of the University of Silesia. However, the Faculty of Law and Administration is older than the University of Silesia and was set up as a branch of the Jagiellonian University (University of Silesia, nd).  Since 1968 more than 21,500 people have graduated from the Faculty.  To date, however, there have been no sociological, economic or demographic reports or analyses of this large  group of people Painting  a portrait of them is  difficult because of a number of  reasons. First, there are two specialisations (lines) in studies; “law” and “administration”. Students in these two specialisations make up two different groups. Secondly, there are students, who  are in the majority, who study in the extramural system Law subjects are taught not only in  the “law line” but also in  the “administrative line”. The students in the administrative line have a similar number of lectures on legal subjects but they have more lectures on administrative law, administrative procedure, administrative execution, etc. and fewer lectures on, for example, criminal law or civil law. Law graduates are allowed to become judges, prosecutors, legal advisers or advocates in future, whereas administration graduates have a chance to take jobs in local or governmental administration, in banks, various kinds of companies, etc.

The decision to take the “law line” or the “administrative line” seems to be closely connected with the age and sex of the student. Administrative studies are only available in the extramural system. That is why the average age of students of administration is higher than students of law. Nowadays all the part-time students are much younger than twenty or thirty years ago. In earlier days an employer used to second a person to part-time studies. Now they may take up part-time studies just after a secondary education like full-time students. Students of law in the part-time system are usually older than full-time students but not so much as it is in the case of students in the administrative line. Many of them work and they are connected with the legal professions; for example they work at offices of legal advisors or barristers, or in legal divisions of companies. Reasons of taking up this kind of study are different to reasons for taking the law line. Usually people who decide on starting  administrative studies intend to improve their professional position. Usually they need an M.A. or a B.A. to be promoted or, more commonly in recent times, they need such degrees to save their current jobs. Sometimes they start their studies after a long time of unemployment.  Administrative studies are their chance to find a job, because they may be employed in all sectors, not only in the public sector but also the private one, in industry or in services.  Such students are rather more interested in the teacher–practitioners than in lectures given by the teacher–researchers although the notion of someone being both an academic and a practitioner. It is very significant that more than 70 per cent of the students in the administrative line are women. The proportions between men and women in the law line are more or less equal. This “demographical situation” at the Faculty of Silesia reflects the general tendency in Poland; Polish women are better educated than men and many more women take up studies at universities and other types of higher education institutions (Central Statistical Office (Główny Urząd Statystyczny), nd). People in their thirties prefer to take up studies in the administrative line because they are afraid of unified studies. Most higher education in Poland is divided into two stages; the first stage taking three years and the second two years.  Approximately half of students in the administrative line have graduated from the various types of 3-year schools offering courses in the administrative line. They usually come to the University to continue their education. However, there are some disadvantages to the two stage system, because sometimes there are some differences in the level of teaching at the first stage of education. Students who graduated from schools other than the University are worse prepared for the university style of teaching. There is also another danger. Due to the Bologna process, students of similar scientific disciplines after the first stage of studies will be able to continue their education in another similar discipline (Kraśniewski , 2004).  However it would be difficult to provide lectures on legal subjects to students without an appropriate background for further legal education. That is why the idea of unified five year period of study in law is  accepted in Poland. According to a new Act,  the Law on Higher Education Act of 2005 (Ustawa – prawo o szkolnictwie wyższym Dziennik Ustaw [Journal of Law] 2005, No. 164, item 1365), only medical and legal studies are to have this  unified system. Other kinds of studies will continue to be split into two stages. Five year studies can seem to be too long for people who are over thirty years old. They prefer to obtain a B.A. degree and then, if possible, (the financial possibilities playing a very important role) take up the next stage of studies. Moreover, they don’t have any illusions that they will become judges or barristers because these professions require further education and a period of apprenticeship.

A few years ago Bradney posed the question “elite education or mass education?” in relation to legal education (Bradney, 2000). The question referred to the English legal education but it would be interesting to think about the answer in the case of the  current reality in Poland. The answer seems to be quite easy if we take into consideration the number of students, and the 45 years of the socialist/communist system when elites were not popular. Maybe now it is not politically correct to say that this previous, not very “human”, system enabled the masses to reach the university legal education. But there was (and probably there is still) also the other side of the issue; the motive for taking up studies (mainly law studies). Thirty or forty years ago obtaining an M.A. in law was, in itself, of huge significance  for people coming from workers’ and peasants’ families who received extra points to facilitate their admission to university. Today the study of law is, instead, treated  as merely the first step in entry  to the political or intellectual elites. In this context the creation of the Faculty of Law and Administration in Katowice, the capital of Upper Silesia, in the early sixties, acquires an enormous significance. The region of Silesia was traditionally an area of heavy industry with most employment being in manual labour.  There was no Silesian tradition of studying disciplines like law and administration. The ethos of simple hard work was glorified. That is why, after more than 40 years, it is possible to say that the University and the Faculty (which was the first) has significantly contributed to the restructuring of the society in Upper Silesia. However, it should also be noted that, apart from the University, there are 13 higher education colleges of various status (public and non-public) in Katowice and another 10 in neighbouring towns. It seems that this process is continuing in the new reality. It is easy to notice that nowadays young people intend to obtain higher education to avoid unemployment and to break with the tradition of manual labour in the coal mines or in engineering which, in any event, suffer from large-scale unemployment. In this aspect, the legal education in Silesia plays an exceptional role in the creation of the new “post – heavy industrial” local society.

In comparison with universities from other European countries, like Great Britain, France, the Netherlands, or Belgium, students at the University of Silesia do not come from around the world.  They are usually people with Polish citizenship who are connected with the region. However, this does not mean that there are no foreign students. However, because they are obliged to pass exams in Polish law, these foreign students usually have strong ties with Poland. First, there are persons with double citizenship, Polish and German, who belong to the German minority in Poland and who live partly in Germany and partly in Poland. Sometimes students with Czech, Slovak and Ukrainian passports who have Polish nationality because they are members of Polish minorities in these countries study law. People of Armenian origin will probably make up another group in the near future. They or their parents arrived in Poland in the early nineties and now they are Polish citizens or they enjoy the permission to settle in Poland. Traditionally there are also a few students from Palestine, Nigeria or Morocco in the Faculty. Students arriving on the basis of the European educational programs (Socrates/Erasmus) make up the other group of foreign students. They are not bound with the Faculty for 5 years, coming for one or two semesters. This group is not big and the Faculty still sends more students abroad than it receives, but every year there are more and more foreign students coming to the Faculty.

Taking into consideration Poland’s accession to the EU, the implementation of the principle of free movement of people, the changing migratory situation in Poland and, on the other hand, the requirements of the educational market, the Faculty at the University of Silesia faces a really big challenge.  It needs to “think global, focus local”, enabling the student to find them out about the European context without cutting off the local particulars (Twining, 2002).

The Study of Law in Silesia

There are three dominant paradigms that have emerged in skills-based legal education; the outcome, capability and holistic models.   The value of each model depends, in part, on the nature of the subject taught.  It is thus necessary to address the question of what law faculties in Poland teach.

Legal education in Poland is run in two stages: at universities and then in legal apprenticeships. The appropriate division between what is taught in these two stages of legal education is particularly important.  However, we would argue that both stages of legal education in Poland make the same mistake.. To put the matter simply, using the classical distinction between law in books and law in action, one can say that legal education in Poland is excessively focussed on teaching law in books. As Łętowska has aptly noted aptly, the sin of legal studies is the advocacy of the widespread myth  that the outcome of an interpretation of law (the professors’ truth) should be seen as the law itself (Łętowska, 2005, 250). It is widely believed that whilst there are disputes in law there is no dispute over the interpretation of law. This is reflected in the style of legal justifications practise in Poland where the outcome of the court’s reasoning is presented as the only possible one and the question of selection of interpretation methods is seen as being completely determined by the law. Similar is the case of legal education within professional apprenticeships. The teaching staff are usually experienced practitioners. They have developed views on what interpretation should look like in the scope of the branches of law they teach. They are convinced of the correctness of their views. They are interested in passing on the knowledge of the way of understanding concrete provisions which they subscribe to, not in providing the apprentices with interpretative independence by means of teaching them methods and techniques of interpretation (Łętowska, 2005, 254). However, law functions in social life only as an outcome of interpretation. Therefore much more attention during academic studies and while acquiring purely professional skills should be given to teaching the complicated problems of legal interpretation. Studying reasons for decisions made both by courts and administrative authorities clearly shows the mistakes made in legal education. There are still false beliefs concerning the principle clara non sunt interpretanda; it is still commonly accepted that there is one correct reading of the law or one method of interpretation which prevails over others. Teaching, instead, the principle omnia sunt interprentanda, showing the necessity of using in every concrete case all possible methods of interpretation in order to formulate various interpretative hypotheses and then teaching selection between them from the perspective of conflicting values will have a direct transposition into the practice of applying the law. Similar is the case of the models of applying the law as taught. Still prevailing is the syllogistic way of applying the law and justifying decisions of applying the law. The development of legal systems, the practice of applying the law, are heading a the direction which has been termed the argumentative model. It poses quite new challenges for legal education as there is a difference between how we apply "ready-made" law and how we "search for law" for a concrete, historical case. One of the basic characteristics of the practice of applying the law is a rapid increase of evaluative elements. Lawyers face problems of resolving conflicts of various values. Law "comes to be" in a discourse. The effectiveness of such a discourse is conditioned by the implementation of certain ethical requirements, a considerable part of which is defined by legal ethics. Norms regulating such issues as a possibility of raising certain arguments, restrictions because of professional confidence, showing respect and deference to the court, professional competence, yielding to clients’ demands and so forth formulate ethical norms which need to be fulfilled in a legal discourse so that its outcome can be accepted. Some authors propose a far-reaching thesis that only an honest lawyer can learn (understand) the law (Zirk–Sadowski , 1998, 80). Hence, the role of the ethical dimension of legal education is rising rapidly; especially if we take into consideration the roles of lawyers in such financial enterprises as Enron, GlobalCrossing, or World-Com.

Conclusion

The process of legal education should reflect any changes happening in the social environment. Such a new challenge in many countries like Poland has been the accession to the EU. Another fast growing challenge is the increase in alternative dispute resolution (ADR) which demands of lawyers  new skills in the  negotiation, mediation and business awareness and thus demands of the faculties of law new changes in their curricula. Bearing in mind the issues above, the Faculty of Silesia (like many others) needs to rebuild its  way of teaching. The result of legal education should be the creation of instruments enabling a student to understand “the spirit of law”, to interpret legal norms and to apply them properly.  It means that we should offer a “tool” not a “ready made product”. However it is much easier to provide a “ready made product” in the case of “mass education” because the creation of the ability to interpret law requires close, personal contact between a teacher and a student. Moreover, unfortunately students prefer to receive a “ready made product” because law in books does not require a lot of thinking. Thus what law teachers must teach students is challenging in terms of the resources used and runs counter to the students’ perception of their needs.

Bibliography

Bradney, A (2000) “English University Legal Education: Elite Education or Mass Education” in P Torremans (ed) “Legal Convergence in the Enlarged Europe of the New Millennium” Kluwer.

Central Statistical Office (Główny Urząd Statystyczny)  www.stat.gov.pl.

Kraśniewski, A (2004) „Dokąd zmierza europejskie szkolnictwo wyższe?. (What the Higher Education Driving At?) Warszawa.

Łętowska, E (2005) “O nauczaniu opisowej wykładni prawa (Teaching of the descriptive interpretation of law) in P.Winczorek (ed) “Teoria i praktyka wykładni prawa (Theory and Practice of Interpretation of Law) Warszawa.

Twining, W (2002) “Cosmopolitan studies” 9 International Journal of the Legal Profession 104.

University of Silesia www.us.edu.pl.

Zirk–Sadowski, M (1998) „Prawo a uczestniczenie w kulturze” (Law and Participation  in Culture) Łódź..