Ivan shemelynets
Kateryna Hryshchenko

24 November 2020
7 Myths about the Concept of Legal Education Development
and who benefits from them

Читати українською
Two weeks ago, the Parliamentary Committee on Education, Science and Innovation held a hearing where MPs discussed the draft Concept of Legal Education Development. This is not the first attempt to adopt a single strategic document in the last 10 years, but what has always been a major obstacle is the lack of a coordinated vision on the principles and vectors of such reforms.
Why Is the Concept Necessary?
The Concept is a program document that outlines the markers of long-term legal education development. It should not go into detail too much; yet, it must outline the specific goals which should be achieved to promote an increase in the quality of legal education.

Changes in legal education are desperately needed. Today, more than 300 educational institutions have licenses to train lawyers, over 100,000 people receive legal education, and over 30% of all Law graduates with a BA cannot pass the minimum threshold and get into the master's degree program. The dire need for a Concept as a strategic guide is evident.
What Are the Positive Aspects of the Draft Concept?
The Concept is structured; it has 10 clearly defined and measurable goals.

The Concept outlines the need to improve the quality of teaching legal courses and human right courses in secondary education institutions and vocational institutions. It also provides for fair conditions of formation and distribution of government funds allocated for training law students.

The Concept emphasizes the need to invite legal community representatives to teach certain courses or classes for law students, engage legal practitioners in accreditation procedures of curricula and institutional accreditation of law schools, engage professional legal community representatives in the development of curricula and plans of courses for law schools, as well as professional standards, if needed.

The document provides for the promotion of legal clinics and the introduction of courses on the practice of legal clinics in the educational process, the active introduction of innovative forms and methods in the educational process: case studies, moot courts, etc.

What is highly important is that the draft Concept emphasizes, for the first time, the need to ensure competitive remuneration of professors in law schools, promote the development of the necessary resources to organize the educational process, including students' independent work, and introduce the system of government funding for academic research.

However, certain communities perceive some provisions as controversial or encroaching on their interests in some way.
Alongside productive debate, the media regularly publicize various myths and manipulations that are spread online, with some of them disseminated by well-known legal professionals. In this publication, we aim to debunk the most common ones.
Myth 1. "International Law" will be abolished, and all legal education will be unified
Future lawyers can currently major in either "Law" or "International Law," but the two are registered in different fields of knowledge. This happened due to the fact that international law students were keen on getting a Law degree while being reluctant to actually major in Law. As a result, we have a situation when two majors registered in different fields of knowledge and with dramatically different curricula are both recognized as higher legal education.

There is no standard for either bachelor's or master's degree in the International Law major, and a full-fledged Single State Exam for this major remains impossible until a standard is approved.

Even so, the draft Concept does not envisage the elimination of International Law as a major, but rather bringing it in line with the International Standard Classification of Education. Moreover, International Law will be able to fully develop as a separate educational program within specialty 081 "Law," retaining its peculiarities.

The approved standards of bachelor's and master's degrees in specialty 081 "Law" already provide for the acquisition of the following general and special competencies: the ability to communicate in a foreign language in the professional sphere both in speaking and in writing, the ability to analyze and assess the influence of the EU legal system on the legal system of Ukraine, the ability to analyze and assess the impact of the Convention for the Protection of Human Rights and Fundamental Freedoms, as well as the practice of the European Court of Human Rights, on the development of the legal system in Ukraine, the ability to assess the interaction of international law and international legal standards with the Ukrainian legal system, the ability to apply knowledge of the fundamentals and the essence of the institutes of international public law, as well as international private law.

Given Ukraine's course for European integration, the need to acquire other knowledge of international law will evidently increase when the new master's degree standard is developed (integrated master's degree).

It is already not the major that matters most but rather the specific educational program used to train future lawyers. Given the autonomy granted to universities, such educational programs can dramatically differ from one another and have their own unique content, ensuring the acquisition of necessary competencies by law school graduates.

It is important to note that in the last few years, we can observe a clear focus of government policy on the international aspect in the education of classical lawyers majoring in "Law". This has been discovered by the analysis of entrance exams for master's programs since 2018, bachelor's and master's standards of 2018 and 2020, as well as the draft pilot Single State Qualification Exam, where this component is likely to increase significantly. This begs the logical question: which major is ready for, and seeks change?
Who benefits from maintaining the existing situation, and what are the benefits of a separate major?
Of course, the existence of "International Law" as a separate major benefits the institutions which provide education in this major.

A separate major means:
  • a separate volume of the government funds for student training; and
  • the opportunity to have (or not have) a separate standard of education.
For example, the standard dictating that a master's degree in Law is available only based on the previously acquired bachelor's degree in Law, does not in any way apply to "International Law."

  • the opportunity to use the separate specialty as a reason to justify the existence of separate institutes.
Therefore, defending the "unique nature" of International Law and its preservation as a separate major is simply to protect the financial and management interests and preservation of the closed "elite" educational institutes. For some reason, there is no such debate about any specialization within the Law major. It should be thus emphasized that international law, by its nature, is a component of the legal education, just like civil, criminal, or administrative law.
Myth 2. Introducing the Integrated Master's program destroys the "unique nature" of master's specializations
Problem No. 1: the role of lawyers with a BA Diploma
In Ukraine, you cannot become a judge, a defense attorney or a prosecutor without a master's degree. Therefore, Law graduates who receive the bachelor's diploma and decide against pursuing further education, do not have full access to the legal profession. The Integrated Master's Program would unify the training level for all lawyers.

Master's studies need to be reviewed. For instance, out of more than 8,000 individuals who enrolled in the master's program in 2020, almost 60% enrolled in the extramural program; and many of those who choose full-time studies cannot always be in class due to employment or other reasons.
Problem No. 2: "non-unique" specializations
The uniqueness of master's specializations is actually greatly exaggerated. Master's specializations often differ in only a few subjects, and a separate specialization is important only for the specific department of the law faculty to which it is assigned. One department usually covers several specializations.

Specialized master's programs have hardly any impact on future employment, given that many graduates do not work in the field of the chosen specialization, nor do most employers care about this. There are numerous cases when a graduate majoring in Civil Law is successfully employed in the public sector, or the other way around.

If an integrated master's program is introduced, there will be more opportunities to develop individual educational programs within its scope. It will remove the need for accreditation at different levels of education, reduce the scope of paperwork, and enable the introduction of a single state exam for lawyers, completely and without any risks.

Alongside the integrated master's program, the draft Concept proposes developing master's programs aimed at the profound study of individual specialized subjects, without awarding a separate qualification.
Who benefits from maintaining the existing situation?
Preservation of a multi-degree program is beneficial for the educational institutions which currently have numerous master's specializations. Such specializations differ only in a few subjects, which are, of course, assigned to a specific department of the law faculty and distributed exclusively within this department.
Myth 3. Higher education institutions under the Ministry of Internal Affairs, the State Security Service (SBU) and other law enforcement agencies will no longer be able to train lawyers
This is not actually the case.

The Concept does not mention it directly, but there are some provisions which imply this. This includes, for example, the provision which is an almost word-for-word copy of one in the 2017 Resolution of the European Law Faculties Association, which calls "to ensure that legal education is provided in universities which are entitled to full academic liberty to encourage freedom of thought and expression as well as academic mobility."

There are also provisions regulating the formation and distribution of government funds allocated for training law students, or ensuring equal opportunities and competition among law schools, and elimination of financial or any other discrimination.

However, it is more about fairness, expediency and validity. The Concept is primarily aimed at changing the general paradigm - training lawyers who will be able to stand up for human rights and act in accordance with the principles of the rule of law, instead of providing staff to meet the needs of government agencies or the system as a whole.

Almost one in three law students receive their education in the institutions of the MIA, the SBU and other law enforcement agencies, however, the quality of their education, sadly, leaves much to be desired, as evidenced by data from enrollment into the master's program.

More than half of the entire government funds allocated for the training lawyers, namely bachelor's degrees, is concentrated in such institutions. The government evidently spends an inordinate amount of money maintaining them, while 2/3 of the graduates have no intention of continuing to work in this system.

The goals set forth in the Concept will obviously be unattainable if the system remains as is. Such institutions should train law enforcement professionals and police officers, who really require specialized training, but it should not be within the "Law" major.
Who benefits from maintaining the existing situation?
Primarily, educational institutions under the MIA and other law enforcement agencies. They are not interested in changing the status quo as they receive significant public funding. They are a closed and opaque system, with many civilian students who themselves pay for their education including in the extramural form. All under the guise of pretending to be capable of training classic lawyers.
Myth 4. Introducing a Single Exam threatens university autonomy
The Single State Qualification Exam (SSQE) has already been formalized and is gradually being implemented. In addition to Article 6 of the Law of Ukraine "On Higher Education,", there are also a relevant resolution of the Cabinet of Ministers that has been adopted.

The above law stipulates that the standards of higher education in majors connected to regulated professions may contain additional requirements to the rules of enrollment, the structure of the curriculum, the content of education, the organization of the educational process, and testing of graduates. Therefore, university autonomy in legal education is not and cannot be absolute.
Who benefits from discrediting the idea of the SSQE?
Those institutions providing higher education that are unsure of the quality of their graduates'. Those institutions are quite numerous. For instance, in 2018, over 30% of graduates with a BA failed the entrance test for the master's degree in Law.
Myth 5. The Concept places on Law schools the responsibility for results of their graduates
It does not. The Concept only emphasizes this principle, as the law school should share the responsibility for the quality of educational services with its students.

Unsatisfactory results demonstrated at the SSQE by the graduates of a specific law school should lead to the adjustment of the licensed number of law students that potentially can enter the law school, reduce the government funds (if any) allocated for training law students, influence the accreditation of specific educational programs etc. Law schools that provide low-quality educational services need to understand that their continued existence will depend to a large extent, on the learning outcomes of their graduates.

Unfortunately, the market does not regulate this industry. Unreasonably low tuition fees, the lack of serious requirements for the selection of students and content of the educational process, and, most importantly, the results of completing an educational program, have thousands of people entering the labor market every year with a degree, yet with low knowledge and skills.

Over the last 20 years we have observed education existing in isolation from the labour market, the two existing in almost completely separate closed environments, which only rarely intersect. The fact that the responsibilities of a law school are limited to issuing a diploma invalidates the ability of the market to regulate anything at all. And the market indeed fails in its regulation, as evidenced by the harsh reality : even though numerous graduates fail to find a job or work in a completely different field, coupled with low salaries for most positions available to a law school graduate and the huge competition for positions, are not enough to stop prospective students from enrolling in a law school.

There is a stereotype that a law degree is "prestigious" and that you will always find work. It's not relevant what kind of work or if you'll be able to find work at all). There is some kind of nationwide fascination with legal education, and supply rises to meet the perceived demand, with salaries often blown out of proportion, and the quality that is, at best, questionable.
Who benefits from maintaining the existing situation?
All institutions providing higher education which are unsure of the quality of their graduates. Such institutions will continue their low-quality education of lawyers en masse and make money from students who pay for their education.

Every year, more than 20,000 students enroll in the "Law" major, with the annual tuition fee ranging from UAH 9,000 to UAH 60,000. Even if we take the average tuition fee of about UAH 20,000, this makes for a UAH 400 million-market (USD 14 million).
Myth 6. The Concept restores the centralized model of legal education regulation
The Concept cannot "restore" anything, as it is a program document. The aforementioned provision on the special requirements to the rules of enrollment, the structure of the curriculum, the content of education, the organization of the education process and the testing of graduates in majors connected to regulated professions, which also have a whole range of other additional standards, prove that there is a balance between university autonomy and rigid central management by the Ministry of Education and Science or other public agencies.

The standards do not contain requirements to specific subjects, scope, forms and methods of teaching, which is precisely a manifestation of university autonomy and the right of universities to unique educational programs. Instead, the Concept only defines the list of necessary competencies, the way of acquiring those competencies is decided by the law school directly.

The Concept does not go beyond these limits. It does not establish a radically different regulatory mechanism than the one currently provided by law. On the contrary, the Concept stipulates that the government undertakes the promotion in the development of effective internal systems for ensuring the quality of higher legal education, the development of methodology (technologies) for teaching law, the increase in the necessary resources for the organization of the educational process, and more.

The government also undertakes to ensure continuing professional development of the law school professors, and to guarantee their competitive remuneration.
Who benefits from speculations on the subject of interference with university autonomy?
Presidents of the law schools who want to have unlimited freedom in making management decisions.
Myth 7. Abolishing extramural departments violates the rights of individuals who work to pay for their education
The extramural form in today's format cannot exist—certainly not when it comes to legal training—due to the fact that quality of education cannot be ensured in these circumstances. This has been proven by numerous studies. Therefore, whether the extramural form should be abolished or retained is rather rhetorical.

However, for those who work or who could not obtain legal education due to certain circumstances, alternative forms of education could be envisaged. With the rapid developments in IT, it is possible to be more meticulous about the potential introduction of remote learning. However, this is an issue of further policy-making, and it should undoubtedly find its place on the roadmap of reform adopted, based on the Concept.
To conclude
The Concept needs to be adopted and approved as soon as possible, as it is an important policy document that outlines the long-term development of legal education. It contains important elements which can dramatically change the perception of the legal profession and education, bringing them closer to the European standards.

The Concept certainly contains several provisions that require additional argumentation and explanation, or can be refined. However, this is not reason enough to doubt its relevance and importance.

The case with the Concepts of Legal Education is the clearest evidence of how the system resists change in general. To the educational institutions, the actual changes proposed are secondary; the primary goal is to keep things as they are. The scale and severity of the problem is hardly a surprise, so a systemic solution is needed rather than addressing specific symptoms of the problem. However, when it comes to decision-making, everyone tries to defend their interests based solely on their ambitions.

In conclusion, a number of provisions contained in the draft Concept have already been—or are being—implemented in law, such as the need for the Single State Qualification Exam, the requirement of a bachelor's degree in Law to enroll in a master's program, increasing the requirements to prospective students of the bachelor's and master's degrees, and abolishing government funding of the extramural form at the level of junior bachelor and junior specialist bachelor.

We wish for us all to view things reasonably and take into account strategic goals as opposed to short-term wins. We call for approval of the Concept and the gradual move towards making our legal education more European.
DJR
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