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9 Using institutional theory in
legal education
Peter C
ˇuroš
The institutional approach utilises Pierre Bourdieu’s conception of habitus and
contends that the legal profession does not operate solely on formal rules but also
on informal knowledge. This chapter demonstrates how students can be famil-
iarised with this knowledge through the lens of institutional analysis, which is
holistic; using historical, organisational, and structural features to understand
social phenomena. In the case of the institution of the legal profession, it uses its
overlapping methods of jurisprudence, legal history, and sociology as it perceives
institutions as social facts created by human action to explore and understand
how they relate to individuals. Providing students with this contextual under-
standing aims to help them become aware of their autonomy and to develop
personal and professional independence of mind.
The chapter will conclude with some practical suggestions for how this
approach could be included in a legal ethics programme, including example
materials, exercises, and case law, which will allow students to apply the institu-
tional approach to the concept of the legal profession’s independence.
Introduction
This chapter argues that the institutional approach can provide a way of helping
students to identify the influences, normative systems, and biases that are present
in the legal profession. Developing an awareness of the legal profession as a
socially constructed institution will help students develop and maintain their per-
sonal and professional autonomy and independence. It aims to encourage stu-
dents to identify and become aware of how broader social forces can determine
their profession’s values and norms. This approach draws on the work of Pierre
Bourdieu and seeks to analyse the legal profession as an institution in a dia-
chronic
1
and synchronic
2
way.
1 A method, which focuses on the change –becoming, of the meaning and position of a
phenomena in social system in the past. The reader may observe this approach later
in the chapter, as pointing on the evolution of the concept of political independence
in the past.
2 A method, in which we consider the meaning of a phenomenon in no connection to
the past. We focus strictly on the placement of this phenomenon and relations to
DOI: 10.4324/9780429299247-10
This chapter builds on the author’s experience of teaching legal ethics in
Slovakia. It draws on examples of legal education and the legal system in the
related context of Central and Eastern Europe. It aims to help promote an
approach to legal education which will support the development of socially
responsible lawyers who are accountable for their actions and have a nuanced
understanding of their position in society. Although this discussion does not
address Clinical Legal Education directly, partly due to the limited use of this
pedagogy in Slovakia, nevertheless it is anticipated that readers will find the
insights developed in relation to legal ethics are relevant to Clinical Legal
Education.
Part I will provide an overview of the legal education system in Slovakia and
Part II will summarise the institutional approach, before showing how this can be
applied to legal education in Part III. Part IV will explore how these insights can
be applied to legal ethics education.
Part I. Legal education in Slovakia
Slovakia has a civil law legal system and lawyers can serve as judges, prosecutors
and procurators, advocates, in-house lawyers, or notaries, and they may serve in
legislative or administrative bodies. There are two key threads connecting all of
them: they are all required to ensure the proper functioning of the legal system
and they are required to act with the independence necessary to maintain fairness
and the rule of law.
3
Understanding the institutions of the Slovakian legal system
needs to be put in the context of its recent political history following the Velvet
Revolution.
4
While the transition of the economy in a country that experienced a
half-century of an authoritarian political regime
5
happened quickly, the transition
of the legal system remains an ongoing process. It has become evident that
changing the formal rules of institutions is not sufficient to ensure the rule of law.
There remains a lack of confidence in legal institutions and a concern over
other phenomena in the social system. The reader may observe this approach in
chapter on the conceptual analysis of the political independence of the lawyer and
relation to other kinds of independence of the lawyer. This method is typical for lin-
guistic analysis. See Ferdinand de Saussure, Course in General Linguistics (Philosophical
Library 1959) 96.
3 What all legal systems have in common, including the civil and common law tradi-
tions, is that ‘fundamental to any study of lawyer ethics is an appreciation of the
lawyer’s role with respect to clients, the profession itself, the state and the public
interest generally’, James Moliterno and Paul Paton, Global Issues in Legal Ethics 2d
(2nd edition, West Academic Publishing 2014) 181.
4 Velvet Revolution was a non-violent transition of political power from the rule of the
Communist Party of Czechoslovakia to the parliamentary republic in Czechoslovakia
in 1989.
5 We may talk about period 1939–1989, as the area was under influence of Nazi
Germany form 1939–1945 and the Communist Party came to power in 1948. The
period between 1945–1948 was also a time of the rise of the authoritative policies due
to the post-war conditions.
152 Peter C
ˇuroš
corruption.
6
According to the results of a 2020 Eurobarometer survey, 64 per
cent of the general public ranked the justice system’s independence as bad, while
26 per cent ranked it as good.
7
In the spring of 2020, 13 judges were arrested by
thepoliceunderaccusationsofcorruption. In the summer and autumn, six
others joined them. The ongoing investigation has uncovered the inappropriate
relations that these judges held with business leaders, politicians, and advocates;
sometimes delivering judicial decisions on request. These investigations have
caused the Slovak judiciary to experience a voluntary exodus of judges, which
has not been seen since 1989.
8
In sum, nearly 20 judges were accused of cor-
ruption, and several advocates are facing charges for corruption and obstruction
of justice.
9
The thesis of this chapter is that these issues are made worse by a narrow
conception of law being limited to formal regulation, a conception which is cur-
rently being perpetuated by the current Slovak legal education system.
10
The
institutional approach to legal education can challenge a narrow and formalistic
approach to law, an approach which emphasises textualism and limited gram-
matical interpretation, rather than the socially nuanced and critically aware
understanding that is necessary for the independence of the profession and the
operation of the rule of law.
6 See more James E Moliterno and others, ‘Independence Without Accountability: The
Harmful Consequences of EU Policy Toward Central and Eastern European
Entrants (Regulation of Legal and Judicial Services: Comparative and International
Perspectives)’(2018) 42 Fordham International Law Journal 551.
7‘PublicOpinion-EuropeanCommission’<https://ec.europa.eu/commfrontoffice/p
ublicopinion/index.cfm/survey/getsurveydetail/instruments/flash/surveyky/2258>
accessed 6 December 2020.
According to Eurobarometer results in 2017, only 25 per cent of people in Slovakia
tend to trust, and 66 per cent tend not to trust, the judicial system. According to
Eurobarometer results in 2013, while in the EU an average of 53 per cent tend to
trust the national justice system, and 43 per cent tend not to trust, in Slovakia 25 per
cent tend to trust and 66 per cent distrust, there is still 9 per cent of those who did not
know whether they trust or not. Overall, Slovakia ended up last but one. In 2009 it
was not much different; trust in the Slovak judicial system was on 28 per cent, and the
judicial system ended up as least trustworthy among the national parliament and
government. In the same issue, it cannot be said that inhabitants of Slovakia would
consider this phenomenon to be natural, when 58 per cent considered the situation to
be worse than in other systems, while 25 per cent considered it to be similar, and only
6 per cent considered it to be better than in other systems of the EU, ‘Flash Euro-
barometer 461: Perceived Independence of the National Justice Systems in the EU
among the General Public –Ecodp.Common.Ckan.Site_title’<https://data.europa.
eu/euodp/en/data/dataset/S2168_461_ENG> accessed 5 May 2020.
8‘Dissimilar Similarities’(Verfassungsblog, 26 November 2020) <https://verfassungsblog.
de/dissimilar-similarities/> accessed 7 December 2020.
9 <https://spectator.sme.sk/c/22355425/kocners-judges-charged-and-detained.html?
ref=av-left>.
10 For more on critique of the textualist approach see Michal Bobek, ‘The Fortress of
Judicial Independence and the Mental Transitions of the Central European Judici-
aries’(2008) 14 European Public Law 99.
Using institutional theory in legal education 153
Part II. The institutional approach to social phenomena
The institutional approach seeks to understand the historical, organisational, and
structural features of social phenomena. This approach is used in legal theory,
11
history, and sociology and
12
is also used in economics,
13
psychology,
14
and orga-
nisational analysis.
15
The origins of the institutional approach can be traced to a
range of thinkers, but for reasons of space, this chapter will focus on the con-
tribution made by Pierre Bourdieu, which will be discussed further below.
Institution has been defined in various ways; by content ‘they are made up of
norms and knowledge, which can be formal or informal and which can persist
over time’
16
or by its role in society, ‘Institutions are the rules of the game in a
society, or, more formally, are the humanly devised constraints that shape human
interaction’.
17
Our social life is conducted within social institutions, which are
stable structures within society and which shape our understanding of social rea-
lity. Institutions provide a map for the individual to communicate and achieve
their goals through socially recognised forms of action. As an individual is born
and raised within a structure of social institutions, it can be difficult for her to
identify them, leading to the assumption that these institutions are natural and
eternal, not constructed and temporary.
18
This chapter proposes the institutional approach can be used as an instrument in
legal education to promote a critical understanding of the habitus of the legal profes-
sion, which will be discussed further below in relation to the work of Pierre Bourdieu.
II.I Bourdieu’s conception of habitus
Pierre Bourdieu’s
19
theory of habitus made an essential contribution to the insti-
tutional approach and explained the motivation for an individual’s action in their
11 See Ota Weinberger, Law, Institution and Legal Politics: Fundamental Problems of Legal
Theory and Social Philosophy, vol. 14 (Kluwer Academic Publishers 1991). N MacCor-
mick and Ota Weinberger, An Institutional Theory of Law: New Approaches to Legal Positi-
vism, vol. 3 (1st ed., Springer Netherlands 1986).
12 As Emile Durkheim calls sociology to be the science of institutions.
13 See Douglass Cecil North, Understanding the Process of Economic Change (Prince-
ton University Press 2005).
14 See Serge Moscovici, ‘The Origin of Social Representations: A Response to Michael’
(1990) 8 New Ideas in Psychology 383.
15 Ronald L Jepperson ‘Institutions, Institutional Effects and Institutionalism’. In Paul J
DiMaggio and Walter W Powell, The New Institutionalism in Organizational Analysis
(University of Chicago Press 1991) 143.
16 Hans Petter Graver, ‘Judicial Independence Under Authoritarian Rule: An Institu-
tional Approach to the Legal Tradition of the West’(2018) 10 Hague Journal on the
Rule of Law 317, 323.
17 Douglass C North, Institutions, Institutional Change and Economic Performance (University
Press 1990) 3.
18 John Searle, Making the Social World: The Structure of Human Civilization (Oxford Uni-
versity Press 2010).
19 Pierre Bourdieu (1930–2002) –French sociologist, anthropologist, philosopher, and
public intellectual.
154 Peter C
ˇuroš
social framework. His approach is helpful in explaining the structure of the legal
profession and professional ethics. In his relational approach, the role of elites,
such as legal professionals, is studied as part of ‘making’law and the legal field
through their competing strategies and practices. As Bourdieu explains, habitus is
the underlying structure of social life, the way that we enter the range of objective
possibilities
20
with knowledge about ourselves:
The structures constitutive of a particular type of environment (e.g. the
material conditions of existence characteristic of a class condition) pro-
duce habitus, systems of durable, transposable dispositions/structured
structures predisposed to function as structuring structures that is, as
principles of the generation and structuring of practices and representa-
tions which can be objectively ‘regulated’and ‘regular’without in any
way being the product of obedience to rules, objectively adapted to their
goals without presupposing a conscious aiming at ends or an express
mastery of the operations necessary to attain them and, being all this,
collectively orchestrated without being the product of the orchestrating
action of a conductor.
21
The habitus builds on shared values and the responses to these values. Our sur-
roundings inform our thoughts, preferences, and values, meaning that we are not
as autonomous as we might feel that we are. This structuralist insight of Bourdieu
tells us that the aspect of how we look at the world is limited by our habitus or
the underlying structure of our social group. A person is usually not aware of the
habitus. It is a socially ingrained disposition internalised through our life, pri-
marily in childhood, especially at school and in the family and secondarily at
university and in practice. It shapes the individual’s perception of social reality
and her reaction to it. It is a result of both past events that an individual experi-
enced and of objective social facts characteristic of the individual’s position in
society. As Bourdieu claims:
in each of us, in varying proportions, there is part of yesterday’s man, it is
yesterday’s man who inevitably predominates in us since the present amounts
to little compared with the long past in the course of which we were formed
and from which we result.
22
The habitus is therefore a socially acquired predisposition to perceive, think, and
act in a particular way, and this predisposition results from exposure to the par-
ticular events a person encounters. When the individual’s position within the
group becomes stable, the habitus becomes unconscious: ‘Yet we do not sense this
20 This range of objective possibilities is called a field in Bourdieu’s theory. A field a is
social and professional context in which agents act subject to a hierarchy.
21 Pierre Bourdieu, Outline of a Theory of Practice, vol. 16 (University Press 1977) 72.
22 Ibid., 79.
Using institutional theory in legal education 155
man of the past, because he is inveterate in us; he makes up the unconscious part
of ourselves’.
23
While a habit is the particular mechanical action of an individual, habitus is
the way of action in the context of the social conditions and individual experi-
ences. Habitus works on the practical level as a way of categorising perceptions,
assessments, and principles of action.
24
It resides in an unconscious adherence to
the tastes and distastes, sympathies and aversions, fantasies and phobias, which
forge the unconscious unity of a class.
25
All these preferences grow in the indivi-
dual throughout her life and form attitudes for decision-making. Habitus exists in
doxa: while habitus is a system of durable, transposable dispositions among indi-
viduals, doxa presents underlying opinions commonly held in a field. It is a
socially constructed state, yet often accepted as the natural order.
26
The habitus works on the principle of regularities and patterns, and it helps the
individual to cope with the unpredictable.
27
These regularities and patterns define
the reactions of the members of the field, in our case the legal profession, toward
situations they face. Therefore, it is possible to expect a similar outcome in similar
situations. Thanks to habitus, social practice is reproduced. Bourdieu’s habitus
explains why lawyers, even from various generations, maintain the processes and
ways of action in a particular way, despite the change of the institution of the
legal profession and institutions connected to it. A part of the Slovakian legal
profession’s habitus (discussed above) is mechanical prima facie positivism. The
institutional approach is proposed as a means to shift this habitus toward a more
socially responsible legal profession which champions the rule of law. The
applicability of this approach to legal education will be outlined further below.
Part III. Institutional approach and legal education
The institutional approach to legal education should give students a clearer pic-
ture of the social reality, or habitus, in which they will act as lawyers. It can show
them that what they considered to be natural, according to the particular place,
time, and environment in which they lived, is mostly a social creation that they
take part in, largely unconsciously.
Lawyers are required to gain ‘a full understanding of the mode of operation of
the social institutions which are charged with the tasks of making, sustaining,
interpreting, applying, and enforcing the law’.
28
To understand the law, we must
also understand its normative structure; the informal practices, attitudes, beliefs,
and values that guide its application, enforcement, and the development of formal
23 Ibid., 79.
24 Ibid., 17.
25 Ibid., 82.
26 Ibid., 164.
27 Ibid., 72.
28 Hans Graver, ‘Judicial Independence Under Authoritarian Rule: An Institutional
Approach to the Legal Tradition of the West’(2018) 10 Hague Journal on the Rule
of Law 317, 321.
156 Peter C
ˇuroš
rules. An institution is always bound ‘to the context of and for the purposes of
norms and rules which (in complex sets) variously give sense to, justify, regulate or
even authorize human conduct in social settings’.
29
For example, consider the common question posed by a layperson for a student
of law: ‘Would you be able to defend a murderer?’This provides an opportunity
for students to question the doxa of the legal profession and in contrast to the
perspective of the layperson. A layperson is likely to see a lawyer using all the
instruments to acquit the client, including misinforming the court or disqualifying
a relevant witness. Lawyers know that this is not what lawyers do. Neither rules of
a lawyer’s duties nor the institution of the judiciary expect the lawyer to represent
a defendant in a way that allows misleading the court. Criminal justice expects a
lawyer to provide the client with legal advice and representation to protect her
rights in case the state could threaten those. No duty can demand that a lawyer
mislead the court to help her client.
30
On the other hand, the line of questioning
may go: the client is the one who pays the lawyer. If not her, another lawyer may
easily agree to the client’s strategy; who will know and who will prove that the
lawyer offered misleading information to the court?
The answer should be that the lawyer knows. She knows about the rule in the
code of conduct for lawyers. Crossing the limits of a lawyer’s role in criminal
defence is, therefore, breaking the rule on false or misleading information.
31
However, where in the statute is the clear border of how zealous the lawyer can
be in defence of her client? Can the lawyer have knowledge of the defendant
committing a crime and still support the defendant’s declaration of innocence?
Can the lawyer use the strategy in the witness’s testimony aiming to disqualify the
trustworthy witness? The relation between the lawyer and her client, the court,
and the opposing party is hard to deduce solely from the content of the profes-
sional code. Perhaps that is why, especially on the matter of the lawyer’s role in
the criminal proceeding, there are many varying opinions of how a lawyer is
supposed to act.
32
It is helpful to have these matters solved in case law, which
serves as an answer for the lawyer. On the other hand, the civil law system does
not consider case law to be a relevant source of law and neither in professional
conduct. Memorising the code with vague provisions on the lawyer’s duty to the
29 Neil MacCormick, An Institutional Theory of Law 14.
30 In reaction to opinion of Monroe H. Freedman, Lawyers’Ethics in an Adversary
System (Bobbs-Merrill 1975).
31 CCBE code of conduct, rule 4.4 <https://www.ccbe.eu/NTCdocument/EN_
CCBE_CoCpdf1_1382973057.pdf> accessed 20 December 2020.
32 See for instance Carrie Menkel-Meadow, ‘The Trouble with the Adversary System in
a Postmodern, Multicultural World’(1996) 38 William and Mary Law Review 5,
David Luban, ‘Legal Ideals and Moral Obligations: A Comment on Simon (Response
to Article by William H Simon in this issue, p. 217) (Symposium: W M Keck Foun-
dation Forum on the Teaching of Legal Ethics)’(1996) 38 William and Mary Law
Review 25, William H Simon, ‘Should Lawyers Obey the Law? (Symposium: W.M.
Keck Foundation Forum on the Teaching of Legal Ethics)’(1996) 38 William and
Mary Law Review 217.
Using institutional theory in legal education 157
court without understanding the lawyer’s role is not helpful, neither for students
nor for lawyers.
Therefore, the institutional approach may give students and practitioners of
law a better perspective to view these issues and provide a way of understanding
that lawyers’professional responsibility is more than acting prudently enough not
to be sanctioned. Students may see the bigger picture regarding the criminal
procedure’s aims, the history of advocacy, and the role of advocacy or account-
ability in individual action. Using the concept of Bourdieu, the issue arises of how
we can break the never-ending cycle of performing habitus within doxa. The
answer is not beating the habitus or getting rid of doxa, but acknowledging their
existence and promoting a slow shift through practice and education.
University education needs to provide students with a space for broadening
their views and opening them to critical thinking; thinking where the analysis goes
beyond the surface level. Thinking critically, a person may doubt how straight-
forward a concept like independence is, for example, as independence is not as
clear-cut as its provision may at first seem. The aim is to challenge the image that
the students have towards the legal profession and to encourage them to consider
how institutions have impacted on their thinking. When we focus only on the
legal provision and leave everything else out of the analysis, we might view some
principles or doctrines as simpler than they are. Focusing on this mechanical and
formalistic approach in practice not only harms the chances of maintaining the
rule of law but also harms the lawyer as an individual, for she becomes just an
instrument for the action of another. A brief summary of how this approach can
be used in relation to teaching legal ethics will be provided below.
Part IV. Teaching legal ethics using the institutional approach
Space doesn’t allow for a full description of the course, but a summary of the
approach taken to teaching the independence of the legal profession will be pro-
vided below. The institutional approach to legal education was used for the
course of Legal Ethics at the Pavol Jozef Šafarik University in Košice between
2016 and 2019.
The concept of the independence of the lawyer was introduced to students and
explored from a variety of perspectives, including financial, personal and political.
The approach used to introduce students to the concept of political independence
will be explained here. This form of independence was contextualised in two
ways. Firstly, it was contextualised in relation to the previous communist political
regime. Here the aim was to explore the response to unjust laws and how lawyers
became powerless under totalitarianism. Secondly, students were encouraged to
compare how the concept of lawyers’independence and accountability functioned
in a democratic regime. We started with the question: how did legal professions
fail to protect rule of law in history?
33
This task aimed to encourage students to
33 See Gustav Radbruch, ‘Five Minutes of Legal Philosophy (1945)’(2006) Oxford
Journal of Legal Studies 13. ‘An order is an order’, the soldier is told. ‘A law is a law’,
158 Peter C
ˇuroš
reflect on their role in protecting the rule of law and the importance of learning
how to approach the problem of an unjust law.
The 1946 essay ‘Gesetzliches Unrecht und Übergesetzliches Recht’
34
by German
legal philosopher Gustav Rabdruch provides an excellent starting point for this
exploration. The essay presents a topic that is tightly knitted to recent issues facing
Slovakia. The first of these is the importance of knowledge of legal institutions in a
country that has faced the authoritarianism of Nazism and Communism over the
course of 50 years. Providing students with this historical context helps them under-
stand the contemporary situation. Analysing the historical continuities and dis-
continuities with the past is an essential part of the institutional approach. This
analysis can introduce the fundamental question of retroactive law, which has
become a contemporary issue in Slovakia since a recent controversial decision of the
Constitutional Court.
35
This not only provides an opportunity for students to discuss
the decisions of the Constitutional Court,
36
but it also serves as an introduction to the
main question that is the central focus of subsequent seminars: the independence and
accountability of lawyers and judges.
Using the institutional approach also allows students to engage with the ques-
tion of how legislative and judicial powers should solve conflicts that exist between
two different political regimes, totalitarian and democratic, existing one after the
other. In learning how to handle the conflict of the ‘unjust law’of the previous
regime, students can be referred to various opinions across particular cases from
the second half of the 20th century. For example, students can be introduced to
the facts regarding the case study of the Grudge Informer
37
case, trying to find a
solution on their own, before being introduced to Lon Fuller’s arguments. In this
way students are able to explore the various ways that courts have resolved the
conflict of opposing political regimes.
38
Additionally, they are asked to engage
says the jurist. The soldier, however, is required neither by duty nor by law to obey
an order whose object he knows to be a felony or a misdemeanour, while the jurist –
since the last of the natural lawyers died out a hundred years ago –recognises no
such exceptions to the validity of a law or to the requirement of obedience by those
subject to it. A law is valid because it is a law, and it is a law if, in the general run of
cases, it has the power to prevail. This view of a law and of its validity (we call it the
positivistic theory) has rendered jurists and the people alike defenceless against arbi-
trary, cruel, or criminal laws, however extreme they might be. In the end, the positi-
vistic theory equates law with power; there is law only where there is power.
34 Gustav Radbruch, ‘Gesetzliches Unrecht und übergesetzliches Recht’(1946)1 Süd-
deutsche Juristen-Zeitung 105.
35 Decision of the Constitutional Court of the Slovak Republic, PL.US 7/2017 on an
annulment of amnesty and a presidential pardon.
36 For example, when reading a 127-page-long decision, it might be helpful for under-
graduate students to be shown how to go through the decision of the Constitutional
Court, distinguish arguments, evaluate position of dissenting opinions, arguing for
both sides of the argument, etc.
37 Lon L Fuller, The Morality of Law, vol. 1963 (Rev. ed., Yale University Press 1969)
245–253.
38 For example by: a) amendment of the law –new law with no retroactive effects, b)
‘This “law”was not a law at all. It was a perversion of law, and therefore it has
Using institutional theory in legal education 159
with relevant decisions of the Slovakian Constitutional Court and compare them
with academic commentary including the Nordhausen court decision,
39
the
Bamberg case,
40
and Mauerschutzer,
41
as well as theoretical works on the topic.
42
Building on this foundation, students are provided with a summary of the
development of laws regulating lawyers since 1939. These laws begin with the
period of the Slovak Republic under the influence of Nazi Germany (1939–
1945).
43
Following that is the period of the rule of the Communist Party in Cze-
choslovakia (1948–1989),
44
and, finally, the period of democratic transition after
1989.
45
Students are asked to look for provisions on duties that form the corner-
stone of the legal profession. These include the duty of confidentiality and man-
agement of waivers, remuneration of lawyers, and professional discipline,
including the reporting of disciplinary wrongdoings.
Afinal case study completes the course on the concept of political indepen-
dence. Students are invited to study the Mešencová’s case,
46
a complicated case
always lacked validity’, c) the possibility of accepting moral arguments as a priority of
one positive prior to other positive law, breaking the standard legal principles such as
legal certainty or prohibition of retroactivity, d) interpretation of the law valid in
times of the authoritarian regime.
39 Gustav Radbruch, Bonnie Litschewski Paulson, and Stanley L Paulson, ‘Statutory
Lawlessness and Supra-Statutory Law (1946)’(2006) 26 Oxford Journal of Legal
Studies 1.2.
40 H L A Hart, ‘Positivism and the Separation of Law and Morals’(1958) 71 Harvard
Law Review 593, 617.
41 Case of Streletz, Kessler, and Krenz v. Germany, Applications Nos. 34044/96,
35532/97 and 44801/98 (Strasbourg 22 March 2001).
42 For example, Gustav Radbruch, ‘Gesetzliches Unrecht und übergesetzliches Recht’
(1946) 1 Süddeutsche Juristen-Zeitung 105. H L A Hart, ‘Positivism and the
Separation of Law and Morals’(1958) 71 Harvard Law Review 593. Lon L Fuller,
‘Positivism and Fidelity to Law: A Reply to Professor Hart’(1958) 71 Harvard Law
Review 630.
43 Government regulation no.6/1939 Coll. –on the service of civil servants, judges, and
lawyers.
Attorneys following the registration in the Chamber of Lawyers make this oath: ‘I
swear to the living God that I will always be faithful to the Slovak state and obedient
to the government, I swear that we will keep all laws and regulations in force, and that
I will fulfill all my duties conscientiously’.
44 Act no. 322/1948 Coll. –Zákon o advokácii (Law on advocacy), Oath: Attorneys are
required to contribute to the maintenance and consolidation of the people-demo-
cratic regime and to assist state authorities in the implementation of law …Act no.
57/1963 Coll. on Advocacy: The role of the advocacy: § 2 ‘Advocacy assists with all
its activities in educating citizens to preserve laws, to protect socialist property, to
observe labor discipline, to respect the rights, honor and honor of fellow citizens, to
honor all obligations towards the state and society, and to adhere to the rules of
socialist coexistence’.
45 Act no. 132/1990 Coll. on Advocacy: §1 A Duty of the Advocacy (1) Advocacy helps
to establish constitutional citizens’right of defence and to protect other rights and
interests of citizens and legal entities in accordance with the Constitution and the
laws. Advocacy is an independent profession, which could be carried out only by this
statute.
46 Decision of the Supreme Court of the Slovak Republic no. 3Sž36/2006.
160 Peter C
ˇuroš
in which a lawyer became an agent in service of the police to convict a fellow
lawyer of bribery. Students need to sort through several decisions
47
to understand
the nature of this case. The final discussion can then be examined to uncover the
myriad questions posed, with the students’understanding of the political inde-
pendence of lawyers informing the educational process.
48
The primary goal of the institutional theory in education is to give students the
bigger picture to understand the institution of the profession itself. The institu-
tional approach may be more demanding and time-consuming for a student.
However, it also allows the student to evolve as a leader and an autonomous,
socially responsible lawyer. It gives a teacher hope that in her work, she is pro-
ducing not only rule-obeying servants of the legal system, but independent thin-
kers who are able to discharge the duty of the institutional duty of the legal
profession to promote and defend the rule of law.
The application of the institutional approach to the concept of political inde-
pendence is just one example. Other aspects of the independence of the lawyer
elaborated in the course include financial issues such as the dangers of con-
tingency fees and the financial dependence of the lawyer on the client. Another
form is economic independence, which covers the issues of multi-discipline prac-
tice and alternative business structures, as well as legal options on how to practice
law in Slovakia and other countries. Finally, independence of competence,
including issues related to confidentiality and conflicts of interest, are also
explored in this course.
Students are encouraged to understand that institutions are a system of norms,
rules, and beliefs that both are concerned with, and form the connecting phe-
nomena of social practices.
49
A lawyer is not a machine for legal services, who
can possibly be used as a tool for any aim. Lawyers are supposed to be leaders,
and, therefore, must be trained as such. Lawyers must not obey rules simply
because of the fear of a sanction, for if the sanctions are lacking, then this moti-
vation disappears. Students need the information to understand their role as
47 Decisions of the Special Criminal Court where he was found guilty for attempt of
bribery PK- 2Tš/15/2015. Decisions of the appellate court –Supreme Court of
Slovak Republic –that confirmed the previous decision of the Special Criminal Court
no. 2 Toš2/2007 and no. 2 To 2/2015, which was the final decision in this case.
Decision of the Constitutional Court of the Slovak Republic no. I. ÚS 129/ 2010/33,
which revoked the decision. Final decision of the Supreme Court of Slovak Republic
no. 2 Toš2/2007 –the lawyer accused of bribery was acquitted according to the
decision no. 2 Toš2/2015.
48 The questions necessary to be discussed are:
Is it wrong for the lawyer to cooperate with the police department?
Is it different when the lawyer enters the position of a police agent to convict the
colleague of bribery?
What is the lawyer supposed to do in Mešencova’s position according to national
law?
What ought the lawyer to do in your opinion?
49 Ota Weinberger and Alexander Bröstl, ‘Inštitucionalizmus: nová teória konania,
práva a demokracie’(Institutionalism: New Theory of Behaviour, Law and Democ-
racy) (Bratislava Kalligram, 2010) 70.
Using institutional theory in legal education 161
lawyers and how they will serve society. Hence, it is crucial to provide for them a
picture that is as comprehensive as possible.
Moreover, to foster this autonomy in students it is important to provide them
with a space for discussion; a teacher’s role becomes more of a moderator than a
lecturer. When the teacher finishes the introduction of the arguments, she may
follow with the Socratic method and a formal questioning of the details of her
students’arguments. The goal is not to come to one single right answer, as often
in discursive questions there is none. The goal is to show students how to find and
apply arguments and to be accountable to those arguments. In this way the
institutional approach echoes Aristotelian conceptions of educational practice:
‘virtues we get by first exercising them. …For the things we have to learn before
we can do them, we learn by doing them.’
50
Studying previous and hypothetical
cases is essential preparation for eventually approaching real clients’cases.
Another helpful method is a comparison to show that the regulative solution of
their system is neither the only possibility nor necessarily the best. It is essential to
show students how difficult it is to step out of their ‘social box’and how instruc-
tive it is to have an opportunity to leave it for an alternative view. Another useful
method is confronting students with the mirroring of social reality in art. As
Herbert Marcuse says, ‘only art and the great refusal are ways how to disrupt the
social reality we are living’,
51
and therefore it is helpful to use cinematography,
literature, philosophy, or painting not only as a teaching analogy but for disrup-
tion of what we might take as a given.
Conclusion
Lawyers are essential for the functioning of the rule of law in a democratic society
and are symbols of the institution of law itself. Their actions help inform the
public’s perception of the effectiveness of the law; whether it can protect the
rights of the weak and regulate the power of the strong. Using the institutional
approach to understand the role of law as a normative concept helps student to
appreciate that the role of the lawyer is vital in securing equal rights for the
powerless and the powerful.
Teaching legal ethics using the institutional approach is an example of how to
show students that they are no longer applying rules in another person’s inter-
ests.
52
In the case of so-called positive law, in the context of Central and Eastern
Europe, the typical legal ethics course is supposed to give an aspiring lawyer all
the necessary tools for handling another person’s agenda, to decide over another
party’s case, or to defend another person’s rights. Alternatively, in the approach
argued for in this chapter, the student is helped to learn how to act with
50 Aristotle, The Nicomachean Ethics of Aristotle (Dancing Unicorn Books 2016) 1003a.
51 Herbert Marcuse, Eros and Civilization: A Philosophical Inquiry into Freud (Beacon Press
1966) 118.
52 James E Moliterno, ‘An Analysis of Ethics Teaching in Law Schools: Replacing Lost
Benefits of the Apprentice System in the Academic Atmosphere’(1991) 60 University
of Cincinnati Law Review 83, 98–99.
162 Peter C
ˇuroš
independence. In other words, students in this course do not enjoy the detach-
ment that helps a lawyer maintain her distance in order to gain objectivity in
understanding the case of another person. In legal ethics, the question does not
stand as, ‘How would you solve this issue for your client?’or ‘How would you
decide such a dispute?’Just the opposite –this course asks a student, ‘How would
you act in such a situation?’Instead of holding the aspect of an observer, the
lawyer is taking upon herself the role of a participant.
Unlike in other areas, in the law governing lawyers, the lawyer is the client.
When a lawyer interacts with the law generally, she does so as a once-
removed expert. The client who comes to the lawyer has direct contact with
the law; the client has the tort problem or the contract problem. The law-
yer’s experience with the law is vicarious, through its application to the client.
Not so the law governing lawyers.
53
This approach attempts to help students understand not only the law itself but
also its development and implications for society. Therefore, it is necessary to look
at the history of the institution and understand the changes that the concept has
undergone. Using these methods might help students leave ‘the bubble’in which
they live. Knowing only of a particular culture at a particular time would una-
voidably lead to the so-called mechanical jurisprudence.
54
As lawyers broaden
their scope of interest, we might get closer to the primary goal of applying the
law: to solve conflicts in society.
We expect a lawyer to be autonomous in her actions, understanding the duties
of representing a client, practising candour towards the court, and maintaining
the well-being of society. It might be an unreachable goal to obtain these out-
comes through a paternalistic education system based on the approach that says,
‘Listen, you will be told how the practice ought to be done’. On the other hand,
letting students enter the practice without a proper understanding of the role of
their profession in society may lead them to understand lawyering as another
form of a lucrative business, one that allows a person after legal training to enter
the higher levels of society and gain large amounts of wealth.
55
One of the most
important outcomes of a student’s legal education should be that personal finan-
cial gain is not at the core of the attention of the lawyer.
Students need a space to find out that there are no truths of grand narratives
and no right answers for discursive concepts. The notion of what they consider to
be their subjectivity is formed by the culture, society, and community in which
they live. External influences determine personal views and knowledge. It would
53 James E Moliterno, ‘Experience and Legal Ethics Teaching’(2001) 12 Legal Educa-
tion Review 3, 6.
54 Zdene
ˇk Kühn, The Judiciary in Central and Eastern Europe: Mechanical Jurisprudence in
Transformation? vol. 61 (Martinus NijhoffPublishers 2011) 191 and following.
55 Aaron Benavot, ‘Institutional approach applied on the institution of education’.In
Lawrence J Saha, International Encyclopedia of the Sociology of Education (Pergamon 1997)
340–345.
Using institutional theory in legal education 163
make no sense to tell students these sentences at the beginning of the course and
continue lecturing as if this information is taken for fact. The role of the institu-
tional approach is to help students of law understand that the moment and place
in which they live is part of a flow. Particular human actions of the past are
influencing the present and will shape the future. Our views are just a minimal
window, determined by our place in the environment in which we presently
belong.
164 Peter C
ˇuroš