Clinical Legal Education in Argentina: Challenges and
Opportunities
Pepe Clarke, Education Coordinator, Environmental
Defender’s Office (NSW)
The author is currently employed as Education Coordinator for the Environmental Defender’s Office (NSW), a community legal centre specialising in public interest environmental law. He was previously employed as an intern by the Centre for Human Rights and the Environment (CEDHA) in Cordoba, Argentina. This paper was prepared largely based on a contribution by Mariela Puga and presented on her behalf on 10 July 2003 at the 7th Australian Legal Education Conference in Caloundra, Queensland. Mariela Puga contributed to the launch of the Human Rights and Environment Legal Clinic, run by the Center for Human Rights and Environment and INECIP.v
1. Introduction
Clinical legal education in developing and newly democratic countries poses many challenges, yet also provides exciting opportunities to contribute to ongoing processes of legal reform, including the promotion of democracy, human rights, social justice and ecological sustainability.
This paper seeks to identify key challenges and
opportunities for the ongoing development of clinical education programs in
Argentina. First, the paper examines a number of key objectives and functions
of clinical legal education in the light of prevailing political and
socioeconomic conditions in Argentina.
Second, the paper briefly examines three well-established
clinical legal education programs in Argentina, setting the context for
discussion of obstacles to expansion of clinical legal education in Argentina.
Key obstacles explored in the third section of the paper include: inflexible
and highly regulated curricula; lack of resources and capacity for practical
training; social and political conservatism; institutional obstacles; and,
resistance from the profession.
Fourth, the paper describes the key features of a recently
established clinical education program established by the Centre for Human
Rights and Environment (CEDHA) in Cordoba, Argentina. This case study is used
to explore opportunities and strategies for overcoming obstacles to the
expansion of clinical legal education in Argentina, including fostering
international links with existing clinical legal education programs to enhance
legitimacy and increase leverage.
2. Objectives of
Clinical Legal Education in Argentina
Traditionally, law schools in Argentina have concentrated on
teaching law and legal education in isolation from legal practice, ignoring
almost completely the potential of practice as a source of education for the
law student. The way a lawyer learns on the job is not generally discussed
systematically, nor is it used in the law faculty. The practical skills and
ethical dimensions of legal practice are largely ignored in scholarly works and
widely absent from the legal curriculum.
The failure of Argentina’s law schools to prepare students
for professional practice produces a vicious circle in which lawyers’ practice
is uninformed by political and social understanding and thus falls back on
legal formalism. Clinical legal education presents an opportunity to challenge
traditional dogma, link academic agendas to social needs and better prepare
students for professional practice.
The history of clinical education in different parts of the world illustrates the importance of social service objectives in providing an impetus for development and expansion of clinical education. By offering free legal services to disadvantaged and vulnerable sections of the community, clinical legal education has gained acceptance in many countries, not solely or even primarily on the basis of its pedagogical objectives, but as a result of students’ and academics’ aspirations to social activism.
In many parts of the world, clinical education, as well as being connected with reformist pedagogical movements within universities, has been strongly linked to political processes of democratisation, to the development of anti-poverty agendas and to the promotion of social justice.
It is clear that the social and pedagogical functions of
clinical education are strongly intertwined, and support each other.
The development of practical skills for legal practice are widely neglected in the curricula of Argentine law schools. The pedagogical input of clinical programs signifies a radical innovation in the national legal education context.
Current economic conditions in Argentina have placed a large proportion of the population in a position where they are unable to afford to pay for legal services. The impact of the national financial crisis on government services has further exacerbated the conditions of vulnerable sectors of the community. Legal clinics provide an important opportunity to address this genuine social need.
Developing a Philosophy of the Function of the Lawyer
Involving students in the provision of legal services enables them to discern the social importance of law and the needs of marginal and oppressed communities, rendering them conscious of the role of the legal profession in respect of those demands. In emerging democracies such as Argentina, still facing enormous constitutional and legal changes, clinics have a responsibility to instill lawyers with a strong sense of responsibility and professional ethics. Clinical programs naturally function as a forum in which professional ethical dilemmas are explored and resolved and more fundamentally political questions, such as the role of lawyers, students and professors in the construction and consolidation of a legal system may also be considered.
The role of clinical education in promoting reflection on the discrepancies between the theory and practice of the law is particularly significant in the very traditional context of the Argentine academy, with its dogmatic adherence to formalistic models of legal theory and education.
The extent to which clinical programs may take an active
role in progressive social change is in part dependent on the socio-legal
context in each country. In young democracies such as Argentina, legal clinics
are able to play an important role as agents of constitutional and legal
reform. Freed from the commercial imperatives of private practice and guided by
the theoretical insights of academia, legal clinics in Argentina have been able
to undertake strategic cases with a great deal of success, drawing on new
democratic institutions to drive an ongoing process of progressive social
change.
An interesting feature of clinical education in Argentina has been the involvement of politically active non-governmental organisations in the genesis and development of key clinical programs. This has influenced the development of the educational experience, placing students in a context in which the social and political objectives of their work are explicitly enunciated, playing an important role in the selection of cases and the nature of their clinical experience. For the organisations themselves, access to motivated volunteers with specialist skills is an invaluable asset, particularly in complex and time-intensive strategic cases.
3. Existing
Clinical Legal Education Programs in Argentina
In Argentina, apprenticeship programs provide a decentralised
form of practical legal training. While these programs provide opportunities
for observational and experiential learning, lack of strategic planning and
inadequate academic supervision limit the effectiveness of these programs in
terms of key pedagogical outcomes, such as critical reflection on legal
practice. Other practical training programs do not generally provide practical
skills training and students receive neither supervision nor evaluation to
clinical standards.
A notable exception to this general description is the
‘Inter-University Public Interest Action Program’, a network of
university-based clinical programs, including the University of Buenos Aires,
the University of Palermo and the University of Comahue.
·
Established in 1994.
·
Six month course -
Public Interest Clinic.
·
Hosted by independent
institute - Centre for Social and Legal Studies (CELS).
·
Supervision and
evaluation of students undertaken by CELS to university standards.
·
Effective integration
of educational aims with CELS’ social and political objectives.
University of
Palermo Public Interest Clinic
·
Established by
Association for Civil Liberties.
·
Now a case-based
clinic inside the University, independent of the Association.
·
Public interest focus
with emphasis on legal innovation and theoretical development.
·
Influence on legal
study and theoretical development within the University.
·
Established important
precedents and jurisprudential innovations.
University of
Comahue Penal Rights Clinic
·
Case-based clinic
within the University.
·
Thematic clinic
linked to academic course.
·
Only clinical program
outside Buenos Aires to gain institutional endorsement of a university.
4. Obstacles to
Expansion of Clinical Legal Education in Argentina
Despite the individual successes of the clinical programs
mentioned above, clinical legal education has failed to expand into other
universities in Argentina. The failure of clinical legal education to develop
further in Argentina appears to be largely attributable to obstacles and
resistance presented by conservative attitudes to legal education within
universities and the legal profession.
In 2002, the University of Palermo concluded a major
research project on public interest law that had among its objectives the
design of strategies for the further development of clinical legal education in
Argentina. This research revealed high levels of resistance within universities
and the legal profession. The main impediments to the expansion of clinical
legal education were found to be:
a. Inflexible and
Highly Regulated Curricula
The organisation and structure of law faculties in Argentina is regulated by legislation and accredited by government agencies. Curricula are generally rigid, with compulsory subjects often remaining set within a fixed program for many years without significant change. Curricular reform requires complex bureaucratic and political negotiations within the university, creating substantial barriers for internal reform of law faculty curricula. The difficulties associated with the development and implementation of new projects present a significant disincentive for faculty members seeking to develop clinical programs, prompting them to abandon their efforts or to develop initiatives external to the university.
b. Lack of
Capacity for Practical Legal Training
Legal academics in Argentina have traditionally failed to turn their attention to any systematic study of the practical skills and ethical challenges arising in legal practice. As a result, universities lack the literary resources and specialist teaching skills necessary for the effective delivery of clinical education.
c. Political
Conservatism
Many legal practitioners and academics see the activities of
legal clinics as interference by universities in political matters in which
they should not be involved. Clinics explicitly oriented towards social change
are perceived as particularly problematic. This opposition is based on a
formalistic conception of law and a conservative conception of the role of
lawyer in society, conceptions that are challenged by clinical programs
oriented towards progressive social change. Political conservatism within
university management structures presents a significant obstacle to the further
development of socially engaged clinical programs.
d. Institutional
Obstacles
Organisational challenges associated with the integration of a clinical practice within university administrative structures, including financial matters and professional responsibilities to clients, are presented as a bar to the development of clinical programs. However, experience has demonstrated that these issues are easily resolved in the absence of institutional resistance.
e. Resistance
from the Profession
The legal profession is both represented and regulated by
professional associations in each jurisdiction in Argentina. These associations
exercise their control of the profession with a strong tendency towards
conservatism and protection of the economic interests of the profession. This
tendency is manifested in their opposition to the provision of free legal
services, which are regarded as undermining the position of the profession.
5. Case Study:
CEDHA Human Rights and Environment Clinic
The Centre for Human Rights and Environment (CEDHA) is a non-governmental organisation based in Cordoba, Argentina that aims to explore the relationship between human rights and the environment, promoting positive social and environmental outcomes through law and policy at the local, national and international level.
The CEDHA Human Rights and Environment Clinic was established in May 2003. The clinic provides an opportunity for law students and graduates to provide legal advice and representation in relation to human rights and environmental matters. Initially drawing on case studies based on previous litigation, the clinic is now engaged in live-client delivery of legal services.
In the first case undertaken by
the clinic, students are representing a poor rural community affected by water
contamination from urban sewerage in legal action against the municipal
government. The municipal government has undertaken significant public works to
improve urban sewerage services at the expense of the health of the rural poor.
The long-standing nature of the problem provides a clear demonstration of the
challenges faced by poor rural communities seeking access to justice in
Argentina.
The CEDHA clinical program has
been developed in partnership with INECIP, a prestigous academic NGO, which is
currently hosting the clinic and providing assistance with program development
and supervision. CEDHA and INECIP are now seeking formal inclusion of the
clinical program in the curriculum of Cordoba National University, thus
allowing students to gain academic credit for their clinical experience and
providing access to the institutional resources of the university.
As discussed above, political
conservatism and inflexible curricula present significant challenges for
externally initiated clinical programs seeking integration with the university
system. Cordoba National University adopts a particularly conservative approach
to legal education and has expressed strong reservations regarding the
integration of clinical teaching methods within the law faculty.
International links with existing clinical programs present
an important opportunity to enhance the legitimacy of clinical education.
Regional cooperation between clinical programs in Chile and Argentina has
generated positive results, illustrating the potential benefits of broader
engagement with the international clinical legal education movement.
In spite of the significant challenges faced by clinical
practitioners in Argentina, these are interesting times for the development of
clinical legal education in Argentina. The successes of existing clinical
programs in Argentina, combined with an undeniable social need for free legal
assistance, provide a fertile setting for growth and innovation.
Pepe Clarke
Education Coordinator
Environmental Defender’s Office (NSW)
Telephone: 02 9262 6989
Email: pepe.clarke@edo.org.au
v This presentation is based on an unpublished translation of
a paper prepared by Mariela Puga entitled ‘Clinical Legal Education in
Argentina’ and personal communications from her regarding the development of
the CEDHA Human Rights and Environment Clinical Program.