25/11/1999

"Ignorance is like a delicate exotic fruit; touch it and the bloom is gone."

Oscar Wilde-The Importance of Being Earnest

During the communist years, most academic fields were affected by ideology. However, the case for the indoctrination of academia is by and large a matter of degree.

A physicist would have had a better chance to teach at the university level if he had a "healthy" social origin, and probably none whatsoever if his ancestry could have been traced back in any way to the "rotten" bourgeoisie milieu of the former capitalist Romania. A historian or a modern literature expert had to make substantive compromises sometimes; however, one had always the chance of giving the right due to the Communist Caesar, by including -in otherwise objective and professional texts- enlightening quotations from the daily Communist coryphée. Class struggle-related clichés, for instance, were a good choice. In this scale, law academics were confined to the most undeserving task, since law in itself, the very subject of their expertise and research, was considered one of the main tools to be wielded in the creation of a new society. As Eleodor Focseneanu, one of the few uncompromising Romanian legal scholars, pointed put: "In law there was no alternative and submission admitted no subterfuges (…) Under these circumstances, after 30^th of December 1947, law was beheaded as a science, in the beginning through the incarceration of the most prominent scholars and their replacement with ideologists or proselytes of the totalitarian communist doctrine, then with the imposition of a simplistic, even rudimentary, and partisan conception, reduced to a few political slogans, a branch of the so-called scientific socialism." [Eleodor Focseneanu, Istoria constitutionala a Romaniei (1859-1991), second revised edition, Humanitas, Bucuresti, 1998, pp. 7-8]

This is why most former law faculty were fired, often sent to forced labor camps, and replaced with people who, by their allegiance, could have been relied on to deliver what was expected from them: new lawyers for a new world. This is the main reason why it is crucial that legal education change dramatically and as fast as possible. Nevertheless, most of the educational reforms introduced by successive governments after 1989 had the least effect within this field.

Beginning with the late 70`s and throughout the 80`s, probably the harshest period of Nicolae Ceausescu `s regime, people standing in long lines in front of various stores were a familiar sight in most Romanian cities. One joined the queue and when the others, already waiting in line, were asked about the purpose of their being there, out in the rain, snow or heat, the answer was most likely that there are oranges (shoes, flour, salami, etc.) given. The newcomer usually joined with a placid and patient expression, waiting to be given or not whatever the regime decided was there to be distributed. Seldom did one wander about the underlying presumption of this, i.e., that you do not buy things, that you are not entitled to consumer products you pay for, but rather get those by the benevolence of the regime.

Semantics does matter. At the beginning of the Fall Semester, teaching staff in an average Romanian law school are to be given or not teaching hours by their dean. One stops by the dean`s office, a few times, until he or she is told expressly what is going to be his or her teaching load for the upcoming academic year. Tenure track staff have a set number of teaching hours, depending on their academic rank, in accordance with the Didactic Personnel Statute [Legea nr. 128/12 iulie 1997, M. Of. nr. 158/16 iulie 1997, Titlul III, Cap. 4]. However, very few academics teach only their tenure-track didactic norm. Since most of the teaching hours are not covered by the cumulated didactic norms of tenured faculty members, they are going to be taught either by tenured faculty, in addition to their norm, or by associate faculty. Tenure faculty teach these additional norms (for which sometimes they do not even receive compensation, since there is a legal limit to cumulative teaching) mostly because their promotion depends largely on the dean, hence one does not want to upset the leadership. With regards to associate faculty, the system resembles largely the feudal habit by which the master of the land gave his deserving subjects favors for their past services and due obedience. Some associates are going to be tenured if they are well-behaved (this having little to do with professional conduct), others are not going to get hours next year.

Holding a permanent position in a law-school was not always a bone of contention. Before 1989, "Alexandru Ioan Cuza" State University of Iasi, where the oldest and one of the largest faculties of law in the country functions, enrolled a smaller number of students every year (less than 40 at some point). Since the Administrative Law Department in Sibiu had already been closed by the regime, rumors spread in the late 80`s that the same is going to happen in Iasi. After December 1989 and the fall of the past regime, the importance of legal counselors increased, new courts and prosecutor`s offices were set up, while the pleading advocate ceased to be a caricature profession.

Consequently, the number of students increased almost nine-fold. Many private faculties, which -at the beginning- were either founded by and/or had to employ overwhelmingly state university professors, appeared virtually overnight. In state universities, competition for the fixed number of places allocated every year for admission exam was tremendous, by comparison with other faculties and disciplines (up to 12 candidates for each place). Foreign students (tuition-fee payers) started to come, mostly from the Middle East and Greece, and many Interior Ministry officers, given the new regulations requiring a university diploma for promotion in rank, enrolled also, in the evening courses program.

Interest breeds money and, over a short period of time, legal academics understood that they were getting into the real business. All of a sudden, they realized that they were entering a new world of ubiquitous prosperity opportunities. Whether their counterparts in less fortunate academic fields have to live mainly on the ridiculously small budget salary (for a preparator, the lowest academic rank, the roughly equivalent of 60 USD per moth), many Romanian legal academics are visibly thriving by the day.

This is why club membership started to really matter. While the Didactic Personnel Statute [Legea nr. 128/12 iulie 1997, Titlul III, Capitolul I, Sectiunea a 3-a] prescribes stringent rules regarding the conditions for hiring tenure-track faculty members, the tenure exam, and the validation of teaching positions, the whole procedure is duly followed only in its purely bureaucratic aspects. It all depends largely on the Faculty Council, and mostly on the dean. Just as one is given teaching credit-hours, one is given tenure. Until that event, a junior associate faculty member is usually and insatiably asked by his colleagues when is his position going to be tenured, or when is he going to be given tenure. Indeed, once the exam is publicized in the Official Gazette, according to the requirement of the law, it will usually all be a matter of formalities being followed. The exam is publicized and a position issued for a specific person, and everybody reasonably knows the situation. Hence, the candidate usually competes alone.

Since the hiring and promotion of academics is a matter of personal fiefdoms in public institutions, and of internal coteries, it is advisable for faculty members to learn quickly what, when, and with whom to speak. Doublethinking, the great communist implementation of Orwellian world, is quite fashionable. Everybody speaks in hints and allusions, trust is ground-level, and nobody dares utter the sad reality, namely that the emperor is naked.

It is extremely important for the status-quo of the faculty and for the well-being of the others that people who are going to get a permanent teaching position be extremely well tested in advance. Whereas the status of associate faculty is rather unclear, and their employment is sometimes not even based on a civil-law labor contract, permanent faculty, once admitted, are incredibly hard to get rid of.

Another thing one needs in order to advance in the rank from the status of a teaching assistant, once admitted as faculty, is a Ph.D. There is, in the long run, little use of being invited to the reunions of a motorists association if you do not posses a membership card. Indeed, why own a car if you do not hold a valid driving license? Pseudo-doctorates (JuDr, RNDr, PhDr) are not awarded in Romania. In spite of the usual official complaint that too many young Romanians leave the country to study in the West, remain there, and this amounts to a massive brain-drain, the Ministry of Education does not recognize foreign degrees. Therefore, a Romanian doctoral degree will be necessary.

Due to the fact that, in the past, even Ph.D. candidates could be tenured as lecturers, many of them lingered on for years, postponing the writing and submission of the Ph.D. dissertation even for decades. This problem was so endemic that the Government tried to solve it recently, by setting a deadline for doctoral dissertations, through the Government Decision Regarding the Awarding of Doctorates [Hotararea nr. 37/25 ianuarie 1999, M. Of. nr. 32/27.1.1999, Art. 39]. Article 141 in the Didactic Personnel Statute also conditions the retaining of present lecturers, associate, and full professors`s respective positions, on their holding a Ph.D. Failure to comply with this requirement would result in automatic discharge within 6 years from the publication of the law. However well-meaning was the Decision on Doctorates, while some of its provisions are unrealistic, others have in practice an effect totally different than what was sought by the framers. Art. 8 (6), for instance sets forth that the expenses incurred by a doctoral candidate will be reimbursed by the I.O.D. (Institution Organizing Doctorates). In practice, to take only one example a faculty can not and does not support all the banquets, travel tickets, hotel reservations that a candidate has to provide external members in the evaluation committee. Art. 25 (2) requires that, out of three official referees in the public defense commission, two come from institutions other than the one where the doctorate is being awarded. Whether this requirement was due to increase objectivity, it makes the doctoral candidate more dependent on the faculty dean or the supervisor, who would as a matter of personal favor call his or her cronies from other academic centers.

Most lawyers would nominally agree on the fact that law is more than simply a set of rules. It is probably a humorous contradiction which characterizes this particular line of work that, in practice, law is taught and practiced starting from quite a different perspective. As F. A. Hayek once remarked: "It is indeed doubtful whether as much false economics has been spread during the last hundred years by any other means as by the teaching of young lawyers by their elders that "it was necessary" this or that should have been done, or that such and such circumstances "made it inevitable" that certain measures should be taken. It seems almost to be a habit of thought of the lawyer to regard that the legislature has decided on something as evidence of the wisdom of that decision. " [F. A. Hayek, Law, Legislation and Liberty, Volume 1 - Rules and Order, Routledge, London, 1993, pp. 68-69] This contention implies that problems which can reasonably be regarded as a downfall in the teaching of law exist even in a country with a well-established legal framework. In the normative uncertainty which characterizes postcommunist world, the effect of this practice on legal environment is way more damaging.

Most law school courses offer students a limited and fractured vision of law, law perceived as a set of rules, mechanically presented for Winter and Summer exam sessions. Law is taught in a clerk-like style, its corollary being the ability of combining article X with article Y and addenda Z, therefore most students perceive the legal system as an endless set of rules, and seldom question the validity or inner meaning thereof. This is definitely not a good premise for either a rights-friendly culture or the Rule of Law. The most tyrannical state has some sort of normative net. Actually, needless to say, sometimes the normative structure of an oppressive state is way more elaborated and precise than the one to be found in a democracy. If successive generations learn the legal skills in the same manner one would memorize the telephone book, we might suspect that the present system will persist in the foreseeable future. It simply reproduces itself, while supplying the legal work market with yet another generation of quasi-lawyers.

There are no rules governing academic dishonesty and plagiarism. As a consequence, ethics in the Romanian academia is rather a matter of personal common sense. My generation studied intellectual property law and author`s rights using a course reader largely plagiarized from Yolanda Eminescu`s treatise, the most authoritative source in the field at that point. The reader for a transportation law course taught in 1995 graciously began with a placid citation from Karl Marx`s Das Kapital. In the same reader, however absurd or hilarious this might appear, the author forgot to eliminate, in the 1995 reprinted version, some other remnants of the older edition, and payment for most international shipment contracts was still made -according to the volume- in rubles and kopeks, like in the good old days of the former COMECOM.

It is primarily each faculty`s purview to set the curricula for each academic year. Thus, the courses taught remained largely the same, although the legal environment has changed dramatically since 1989. Accordingly, up to this moment, there is no lecture taught at the State University of Iasi, at either undergraduate or graduate level, on the Council of Europe, whose member Romania presently is, human rights, or legal philosophy. As a picturesque detail, an optional lecture on European Community (sic!) Business Law is offered this year, although the students have no idea what the European Union Law is all about, since no introductory course is offered within this field.

Since most law-school faculty teach a number of additional credit-hours for private law faculties, financially more appealing, it is not uncommon that they would not appear in class or send their younger assistants to teach instead. When they do come, the most familiar way of teaching a course is when the lecturer reads yellowish notes which helped to enlighten many generations before, while students note down every single word the lecturer utters. This is why, when the printed version of the course reader is available in the university bookstore, attendance for courses or seminars is very low.

This is not to say, however, that the faculty members would bear all the blame, or that students are in fact blameless and solely the victims of this arrangement. In some cases, the status-quo is convenient for both parties. Professors who do not fulfill their academic duties by the book tend, as a matter of common sense and mutual understanding, to be very lenient in grading. For some exams virtually every student who bothers to show up receives a 9 or a 10 (the equivalents of A-A+ in the American educational system). Which could be equated as a structural form of intellectual corruption, since, in the intellectual domain, it is the equivalent of a bribe. Just as well, the lack of academic dishonesty and plagiarism standards cuts both ways. Professors do not have time to thoroughly supervise hundreds of graduation theses. Hence, the supervisor sometimes gives his students old diploma papers easy to sparsely update and fully recycle. And both parties are satisfied.

Nevertheless or notwithstanding, students rarely complain, more than in faculty lobby gossips, although the Law on Education gives them one quarter of the votes in University Senates and Faculty Councils [Legea invatamantului, nr. 84/1995, republicata, M.Of. nr. 1/5ianuarie 1996, Art. 94]. Partly for fear of retaliation, and in part because, as aforementioned, the game is not a zero-sum one.

Faculty members better themselves and keep abreast with new information through research. Junior faculty, who are usually able to speak a language other than Romanian, go abroad on grants or fellowships only if they can provide a colleague who agrees to teach the whole number of hours they usually teach, although the Law on Education and the Didactic Personnel Statute state a different reality. Senior faculty publish legal materials, often excerpts from their old Ph.D. dissertations or -if applicable- chapters from their readers. They publish in the Legal Faculty Yearly Review; the yearly review is usually issued once in three or more years. Research Departments also exist; on paper. [See the Law on Education, Title II, Sec. 5.]

According to the official data released by the Ministry of Education, there are presently 25 private law faculties provisionally authorized to function. Their authorization and accreditation depends, according to the Law on Academic Accreditation (Legea nr. 88/93), as modified, largely on the CNEAA (National Commission for Academic Evaluation and Accreditation). Since many members in the Commission either have taught or currently teach in a private faculty, there are conflict-of interest issues to be raised. Students graduating from a private law school have to pass a final licensing exam under the supervision of one of the six state law faculties authorized to organize license exams and, since most state law professors teach in one or more private faculties, the whole network of relations and complications would be a wonderful case-study for a political scientist pursuing "concentrated interests" theories.

The need for private law-schools is evident per se, since they could offer, in time, a viable alternative to state education. Moreover, in the marketplace of ideas, abolition of monopolies and competition are principal incentives for advance of thought and overall progress. However, the situation will change very slowly, since private education has a rather poor reputation. One reason is the frenzy of establishing private faculties at the beginning of the 90`s, where many of the founders regarded their endeavor as a good business, a quick fortune, and private education was in some cases "the hen that laid the golden eggs." Another explanation is the inherited mentality of state-socialism, and the general public`s respect for authority. This mentality (i.e., giving private law education an often undeserved bad name) is so pervasive that once, when I called an international agency in Bucharest and spoke with its director on the phone, after declining my identity and profession, that person asked me worrisome whether I teach in a state school or "one of those private things…."

This article is based on my own experience as teaching assistant and associate lecturer at the "Al. I. Cuza" University, the Faculty of Law; although the general situation is as described, concrete examples offered hereby should be confined to this institution.

The moral health and chances for progress of a country depend on the degree people rely on and respect the law, and largely on the credibility of those applying the law. Consequently, it is very important how and by whom law is being taught. Educational reforms were continuously introduced since 1989. It is hard to say exactly why their effect on the law-teaching environment was so limited. Is the legal academia petrified in habits so rooted and so prone to feed on themselves and replicate, that nothing but time will alter the present state of facts? It is my deep belief that most educational regulations failed to identify the crux of the problem and normatively isolate the substantive issues. They often focused on procedural aspects, which can be curbed and do not make a difference. Communist education was also a lot about procedures. Some changes can be prompted however, by passing clear standards on publications, academic dishonesty and plagiarism, and student assessment of the teaching staff. Until then, the sleep of reason, like in the Francisco de Goya`s painting, will keep on delivering monsters. In this case, mostly dinosaurs.