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149comparative LEGAL STuDIES
TRAINING oF A LAwYER iN RuSSiA AND uSA:
about the universal basis
M. L. Davydova Doctor in Law, Professor, Head of Chair of Constitutional and
Municipal Law, Volgograd State University
Summary: In the article the author reflects on the distinctions between the
Russian and American traditions of professional juridical education, coming to conclusion that, in spite of specific forms, methods, technologies of training of a lawyer, the specific features of juridical profession always define the final purpose of this training - making of professional legal thinking.
Keywords: Legal profession, professional juridical education, training of a
lawyer, professional legal thinking
Me: - What do you mean saying “professional skills of a lawyer”? Give me a list: we must teach
students how to write, how to speak...
Arnold M. Weiner, attorney, Baltimore, Md:
- No. Only how to think.
(From personal conversation)
It is assumed that technologies for training of lawyers are completely different in various countries. There are plenty of formal criteria for comparing educational systems, including the term of education, total amount of academic hours, specialist area naming, list of educational subjects, forms and methods of pedagogical monitoring etc.1 Most such formal differences2 are generally indicative of the following substantive difference: West-European and Russian universities and colleges are focused on fundamental theoretical training of specialists, while American juridical education system is targeted at practical application of law3. The reasons for such divergence are undoubtedly rooted in the specificity of national system of law requiring a lawyer to implement certain specific job skills.
The matter of common, generic characteristics of legal profession and, therefore, professional training of a lawyer in the countries appertaining to various juridical families is still outstanding.
It is the understanding of legal profession itself that has methodological significance. It is a known fact that the lawyer's activities are irregular in respect of subject matter, areas of application and legal status of implementing, which sometimes gives reason for scientists to doubt in the appropriateness of existence of the very notion “legal profession” reflecting certain internally uniform phenomenon.
In academic literature the following attributes are specified as the attributes of this profession: (a) the essence that consists in providing the legal regulation mechanism; (b) the contents in the shape of professional actions, which generally result in legal effect; (c) the subject matter of the professional activities being the behavior of people; (d) the aim, which is to establish the legality mode and to secure the sustainable law order; (e) instruments of juridical labor being the regulatory and individual legal prescriptions and other instruments of legal technique; (f) specific methods of performing professional actions that form juridical technology; (g) forms of professional activities subdivided into external (documents issued by lawyers) and internal (procedure)4.
It can readily be noted that in such interpretation the notion of legal profession obtains descriptive nature and is reduced to citation of separate elements or qualities non-unified by certain systems attribute. Indeed, the differences in the activities of the lawyers in the spheres of law-making and law enforcement are substantial; most specialties of legal profession are deeply distinguished in respect of contents, targets and methods; the work areas of the lawyers operating in the private and public law spheres are completely different in terms of their goals and directions. For instance, the quality of special social responsibility of a lawyer for his activities5 or the statement that any legal activities are aimed at general establishing the legality mode can be regarded solely as the wishes
Comparative Legal studies
imparted to all the legal profession members, not least because it is the protection of private interest in the focal point of the private law sphere (this interest should obviously be protected by legal means, however it can fall apart from the public or governmental interests).
There are even more differences revealed when we address to the matter concerning the specific features of legal professions in the countries appertaining to various legal families. Thus, while in the USA the legal profession is unified, which establishes horizontal mobility between its branches6, in France there is no such notion of “legal profession” that would unite all the lawyers, each category of lawyers (attorneys, notaries, judges etc.) forming its own profession with the appropriate licensing procedure, system of training of new members, standards of ethics and disciplinary responsibility, so it would be more correct to speak of various legal professions7 in the context of French law.
The exact number of lines of the legal profession is a separate matter of argument as well. Thus, C. Osakwe relates about eight branches forming the structure of legal profession (including the specialist fields of scientific researcher and lecturer in law)8, while T V. Kashanina notes that the list of kinds of professions will never be exhaustive as the specialization of legal activities will increase due to complication of social life9.
Nevertheless, one can ascertain that the attributes being peculiar to any legal specialist field and tending to be system qualities of a legal profession still do exist. In our opinion, there are two of them.
The first and the most significant is the existence of professional legal thinking. The
1 Levitan K. M. Juridicheskaja pedagogika [Juridical pedagogics]. Moscow, 2011. P. 155.
2 C. Osakwe provides detailed comparative characteristics of the systems of legal education in Russia, the USA, France and Germany (Osakwe K. Sravnitelnoe Pravovedenie v Skhemakh: Obshchaja i Osobennaja Chasti [Comparative Law in Diagrams: General and Special Parts] Moscow, 2002. P. 113-124).
3 Levitan K. M. Sravnitelno-pedagogicheskij analiz soderzhanija professionalnoj podgotovki juristov v rossijskikh i zarubezhnykh vuzakh [Comparative and pedagogical analysis of training of lawyers in Russian and foreign higher educational institutions] // Rossijskoje juridicheskoje obrazovanije v uslovijakh integratsii v jevropejskoje i mirovoje obrazovatelnoje prostranstvo: Materialy Vserossijskoj uchebno-metodicheskoj konferentsii [Russian juridical education in terms of integration into the European and global educational space: Data for the Russian National Educational and Methodological Conference] (Jekaterinburg, 18-19 December 2003). Jekaterinburg, 2004. P. 37.
4 Sokolov N. Ya. Professionalnaja kultura juristov i zakonnost [Professional culture of the lawyers and legality]. - Moscow: Prospect, 2011. - P. 49-63.
5 Ibid. P. 56.
6 Osakwe K. Op. cit. P. 125.
7 Ibid. P. 128-129.
8 Ibid. P. 125.
9 Kashanina T V. Juridicheskaja tekhnika [Legal technique]. Moscow., 2007. P. 84.
essence of legal education seems to be, first and furthermost, producing a specific method of information perceiving for an agent, rather than transmitting of a certain amount of such information perceived by this agent. The main instrumentality of professional thinking of a lawyer is represented by legal construction, thanks to which each notion, category and legal phenomenon is regarded as a complicated structure unit composed by a set of legally significant elements or attributes10. As Mr. N. M. Korkunov precisely noticed, “the main hint of legal construction consists in objectifying the legal relations occurring between people and regarding them as separate essences, occurring and changing within the period of their existence and, finally, terminating”11. Constructions are the main category in specificity of professional legal thinking, yet not the only one.
Moreover, the thinking of lawyer is designated by existence of a certain paradigm, defining the basic presets of consciousness which are the legal axiomatic statements. It is the juridical training that provides for the assimilating of the most significant values recognized within the framework of the legal paradigm to be the absolute and unconditional truth and answering for the ideal platform for professional thinking. Most of these truths have been widely known since the period of Roman law: (Ius est ars boni et aequi - The law is the art of good and fair; Lex est quod populus iubet atque constituit - The law is what the people order and establish; Qui suo iure utitur, neminen laedit - He who exercises his legal rights, harms no one's interests; Audiatur et altera pars - Let the other side be heard, too; Cuius commodum, eius periculum - He who gains the profit, bears the risk; Ei incumbit probatio, qui dicit, non qui negat - The burden of proof lies with who declares, not who; Um nulla est obligatio - Nobody has any obligation to the impossible; Iura novit curia - The court knows the law; Manifestum non eget probatione - The obvious needs no proof). From viewpoint of commonplace sense, such statements by no means always appear unconditional, but for professional sense they compose the platform for the “frame of references”. The “paradigm effect” is activated: what is absolutely obvious for the protagonists of one paradigm can be concealed from the ones who support another12. The mental models rooted deeply inside us arrange our perception of reality in a certain way. It is something like filters built in our eyes and brain.13
So, it is the professional legal thinking that, in our opinion, would make the lawyer of a lawyer, and it is working out of such thinking in the process of legal training that determines the readiness of the graduate to the professional activities, which, however, does not imply his practical ability to perform it. In addition to internal platform of appertaining to the profession (legal thinking), the external platform is essential as well, which is to have practical skills and methods of professional activity (legal technique).
Comparative Legal studies
Legal technique, first and furthermost, is a set of professional instruments, skills and abilities, which allow one's applying practically legal knowledge14. Managing of this technic is assumed to be competence of a lawyer constituting the ground of his professionalism and ensuring his professional success. The skills of drafting, interpreting legal texts, providing arguments for one's legal position are essential for any lawyer, irrespective of his particular specialty and working sphere. These skills are exact the ones which should be primarily developed in the course of training.
It is widely known that the American system of legal training is much more focused on developing such professional competence than the Russian one. A range of courses studied by American students possesses of a complete juridical technic directional effect. Here are some examples of the textbooks, The Process of Legal Research15, Legal Research and Citation16, Legal Drafting in a nutshell17, Reading like a lawyer: time-saving strategies for reading law like an expert18, Writing and Analysis in the law19, Academic Legal Writing20, Where the Law is: an introduction to advanced legal research21. Irrespective of the fact whether such courses are general law oriented or focused on specific sectorial matters (e.g. Tax Research Techniques22), they represent practical guides, accompanied, as a general rule, with exercises and other materials assisting in mastering and developing the appropriate professional skills.
In Russia such practical guides and manuals are traditionally published with
10 Davydova M. L. Juridicheskaja tekhnika: problemy teorii i metodologii [Legal technique; theory and methodology issues]. Volgograd, 2009. - P. 153.
11 Korkunov N. M. Lektsii po obshchej teorii prava [Lectures for general theory of law]. 2nd edition, Saint-Petersburg, 2004. - P. 427.
12 Barker, Joel A. Paradigmy myshlenija: kak uvidet novoje i preuspet v menjajushchemsja mire [Paradigms: The Business of Discovering the Future] / Translated from English by T Gutman. Moscow, 2007. P. 74-75.
13 O’Connor, Joseph, McDermott, Yan. Iskusstvo sistemnogo myshlenija: Neobkhodimyje znanija o sistemakh i tvorcheskom podkhode k resheniju problem [The art of systems thinking: Essential Skills for Creativity and Problem Solving] / Translated from English, 2nd edition. Moscow, 2008. P. 82.
14 Davydova M. L. Op. cit. P. 127.
15 Schmedemann D. A., The Process of Legal Research / by Deborah A. Schmedemann, Matthew P. Downs, Ann I. Bateson, Susan L. Catterall, Christina L. Kunz. N.Y.: Aspen Publishers, 2005.
16 Teply L. L. Legal Research and Citation. St.Paul: West Group, 1999.
17 Haggard T R. Legal Drafting in a nutshell. St.Paul: West Publishing Co., 1996.
18 McKinney R. A. Reading like a lawyer: time-saving strategies for reading law like an expert. Durham: Carolina Academic Press. 2005.
19 Shapo H. S. е.а. Writing and Analysis in the law / by Helene S. Shapo, Marlin R. Walter, Elizabeth Fajans. N.Y.: Foundation Press, 2003.
20 Volokh E., Kozinski A. Academic Legal Writing: law review articles, student notes, seminar papers, and getting on law review / by Eugene Volokh with foreword by judge Alex Kozinski. N.Y.: Foundation Press, 2005.
21 Armstrong J.D.S., Knott C. A. Where the Law is: an introduction to advanced legal research. 2007.
relation to practical lawyers23, though more and more practical guides have appeared lately to support higher educational training courses24. The process of implementing the juridical technic element into the curriculum has been recently intensified due to adoption of the new Federal State Educational Standard designed to enhance the practical orientation of the professional education. In particular, it provides for the list of common cultural and professional competence and specific practical skills a graduate should possess of. The balance between the amount of time allocated for the lectures and the discussion sessions or seminars is to be changed in favor of the latter (60-70 per cent); the compulsory minimum of the time allocated for active and interactive sessions is to be set (20 per cent). The special emphasis is put on the links between the education process and legal practice: shaping educational profiles on the basis of the employers' requests, having the management of the corporate employers involved in teaching and monitoring the students' knowledge.
All these trends are in full harmony with the growth of interest to the legal technic that has occurred for the last decade. On one hand, it gains the attention of the researchers as the challenging and practically significant scientific field. On the other hand, its importance as a training course required for shaping the professional skills of a lawyer has been now recognized by most specialists25.
The issue is not about the trends or the effect of globalization introducing foreign experience to the legal system. The issue is about the objective impartial need for improving quality of professional training of the lawyers, which cannot be provided without enhancing of the juridical technic element. Generally speaking, shaping of practical skills for juridical activities is a path to professional thinking. Theoretical
22 Gardner R. L. е.а. Tax Research Techniques / by Robert L. Gardner, Dave N. Stewart, Ronald G. Worsham, Jr. N.Y.: American Institute of Certified Public Accountants, Inc., 2003.
23 Advokat: navyki professionalnogo masterstva [Attorney: professional skills] / Ed. by L. A. Voskobitova, I. N. Lukjanova, I. P. Mikhajlova. Moscow, 2006; Vasiljeva T. A. Kak napisat zakon [How to draft a law]. М., 2011; Vorobjova O. Sostavlenije dogovora: tekhnika i prijemy [Drafting a contract: technique and hints]. Moscow, 2011; Gongalo B. M. e.a. Nastolnaja kniga notariusa [Notary’s manual]. In 2 vols. Moscow, 2004; Koryakovtsev V. V. Pitulko K. V. Rukovodstvo advokata po ugolovnym delam [Attorney’s criminal cases manual]. Saint-Petersburg, 2006; Koryakovtsev V. V., Pitulko K. V., Fedorov K. P. Rukovodstvo advokata po grazhdanskim delam [Attorney’s civil cases manual] / Ed. by K. P. Fedorov. Saint-Petersburg, 2005; Kudryavtseva E., Prokudina L. Kak napisat sudebnoje reshenije [How to draft a court decision]. Mowcow, 2012; Nastolnaja kniga sudji po grazhdanskim delam [Civil cases manual for a judge] / Ed. by N. K. Tolcheyev. Moscow, 2008; Ponomareva N. G. Spravochnik kadrovika: rukovodstvo po oformleniju tipovykh dokumentov: prakticheskoje posobije [HR’s guide: sample documentation manual: practical guide]. Moscow, 2007.
24 Vakhnin I. G. Tekhnika dogovornoj raboty [Contractual technique]. Moscow, 2009; Davydova M. L. Juridicheskaya tekhnika (obshchaja chast): Uchebnoje posobije [Legal technic (general part): Teaching guide]. Volgograd: Izdatelstvo VolGu [VolGu publishing], 2009; Kashanina T. V. Op. cit.; Khazova O. A. Iskusstvo juridicheskogo pisma [Art of legal writing]. Moscow, 2011; Tsvetkov I. V. Dogovornaja rabota [Contractual work]. Moscow, 2010, etc.
з4
Comparative Legal studies
training isolated from practical skills appears to be too abstract to achieve this principal aim. It is no coincidence that legal constructions are regarded in the science as thinking structures and the means of legal technique at the same time. The doctrinal and practical sides of this phenomenon are inextricably intertwined. It is not enough to understand what the legal constructions are or to know the principal constructions contemplated in the existing laws. It is necessary to be able to reveal the construction in the legal text and to correlate the ideal model with a particular real-life situation. It is important that the mental operation should be implemented into the consciousness at the level of automatism, when, figuratively speaking, a man is looking out of the window and seeing legal constructions there yet. As soon as the constructions become the part of consciousness, they start working on each level where the law exists. Not until then they can be regarded as logical and mental methods for legal practice problem solving26. And only in this case we can speak of sufficient professional competence of a lawyer and that he to the full extent possesses of the tools of legal technique.
The Russian and American systems of legal education being considerably different in the context of forms and methods of implementation have factually one final goal to pursue which is to shape professional thinking of the students. However, the ways to this goal are inversed.
The American system comes to achieving this aim by means of induction: from particulars to generals, from developing specific professional skills to perception of the student of the sense of profession and adopting the essence of professional activities, while the Russian system uses deductive logic: from generals (systems theoretical study of law) to particulars (the issues of practical use of the theoretical knowledge gained). Thus, the need in the training courses of juridical technique matters occurs not until the final stage of training in the Russian higher educational
25 Please see, e.g.: Juridicheskaja tekhnika: Jezhegodnik [Legal technique: Annual]. 2009. No. 3: Spetsialnyj vypusk “Juridicheskaya tekhnika v sisteme vuzovskoy podgotovki pravovedov: nauchno-metodicheskoje obespechenije i didakticheskije puti yego sovershenstvovanija” [Special edition “Legal technique in the system of jurisprudent higher education: scientific-methods framework and didactical ways to improve it”].
26 Ponomarev D. E. Genezis i sushchnost juridicheskoj konstruktsii. Avtoref. dis. ... kand. yurid. nauk [Genesis and essence of legal construction. Synopsis of a thesis for Candidacy of Juridical Sciences]. Jekaterinburg, 2005. P. 18.
27 Concerning the importance of such courses in the system of professional legal training, please, see: Davydova M. L. Obshcheteoreticheskij i prikladnoj podkhody k prepodavaniju juridicheskoy tekhniki: preimushchestva i problemy sovmestimosti [Common theoretical and practically applicable approaches to training of legal technique: advantages and problems of compatibility] // Juridicheskaja tekhnika [Legal Technique]. No. 3. - Nizhny Novgorod, 2009. P. 155-160; Davydova M. L. Juridicheskaja tekhnika kak nauchnaja osnova formirovanija professionalnogo masterstva jurista [Legal technique as the scientific platform for developing professional skillfulness of a lawyer] // Pravo i obrazovanije [Law and Education]. No. 7. - Moscow, 2007. P. 42-50.
institutions27, while in the American system the technique is factually taught straight away.
It is not correct to pose question concerning the advantages or disadvantages of the approaches concerned. Each legal system develops its specific means of self-reproducing, including the particular system of training lawyers. However, it is important to discern that sometimes there are universal platforms behind the formal divergences and that completely different educational methods can pursue the similar goals - to teach the student to think as a lawyer.
