Ciego de Avila University
ISSN (печатный вариант): 2073-0071
Learning evaluation, legal performance and professional formation of jurist, педагогический контроль, профессиональное поведение, подготовка юристов
This paper presents the current considerations regarding the characteristics of the assessment for learning to ensure the comprehensive training of the lawyer. Some observations on the conception of the professional formation of the lawyer based on the observance of the current Studies Plan are performed. The essential features of the assessment are determined in favour of the performance of the jurist to appreciate it as a training proposal to achieve comprehensiveness in the formation process of the jurist.
Higher education in Cuba is undergoing major transformations towards achieving comprehensiveness in the formation of professionals. This requires the improvement of methods and means of teaching and learning, assessment tools and use of all the didactic training resources that allow the link between theory and practice. The formation process of the lawyer today has a key socio-legal role and higher education is responsible for achieving the graduation of competent professionals with a wide profile of performance. The jurist’s formation process has been analyzed by authors as Luz, D (2009), Cabrera, X and Dieguez R (2013), who address different facets of the process. They all agree on achieving completeness in the formation of legal professionals, from a more active participation of students in their formation process, which requires better technical and methodological preparation of teachers. The current Plan of Studies in the Law degree course relates to that effect the jurist’s performance modes and their spheres and fields of professional action. The fields of action in the of work of legal professionals are expressed in the very nature of legal relations, these being: the constitutional, civil, family, administrative, business, labor and social security, international in public and private areas, criminal and procedural ones. These are materialized from the different areas of work of the jurist. In this regard, institutions, companies and other entities are identified; Collective Lawyer’s Offices; District Attorney’s Offices and Courts. They can also work as formation areas in academic activities in higher education. Consequently their performance modes correspond to the diversity of relationships that require legal protection, in direct relation to the agencies and institutions where they can perform professionally. Common elements, general and essential skills are distinguished from this perspective and which graduates in legal sciences must have, all of them synthesized by the aforementioned modes of action of the lawyer, which according to the current Plan of Studies for a Law degree correspond to: the consultancy, representation, control and preservation of legality and the administration of justice. Consultancy is a way of legal action, which in legal practice identifies lawyers who work in agencies, enterprises, institutions. However, its action is not limited to that, although because of the characteristics of our economic system, it is the name that identifies its professional area. It is a way or action carried out by almost all jurists, including judges and notaries. Its main function transcends mere consultations, involving guidance and dispute avoidance in some of the cases. It is the basic level of competence of a lawyer and also requires the identification of a legal relationship, the righter solution to a specific legal case, from the interpretation of existing legal rules. In relation to legal representation, it is a sphere of legal action widely used in the legal practice except when the lawyer or notary exercise jurisdictional functions, or occasionally, when a client comes to him for the sole purpose of seeking legal advice. This is attributed by party status, common terminology in the legal dynamic that occurs in litigation matters requiring action by the court, as well as others in which the diversity of individual interests determines the quality of a part. The lawyer is called upon to provide legal representation, either of a legal or natural person, in an economic or commercial contract, or the resolution of a civil, family, administrative, labor, or criminal conflict, among others. The skills that must develop the legal practitioner require more complexity than those required for legal advice, besides assessing the legal significance of a given situation and its possible solutions; and must follow the procedures and draft relevant legal documents in accordance with the formalities and the term provided by law for each particular process. The last two modes of performance which the current Plan of Studies for a law degree recognizes as of utter importance for the formation process of the jurist are the control and preservation of legality and the administration of justice. The first one is based on the specific functions that the Cuban Constitution and legislation attribute to the Republic’s Attorney General's Office, while the second one is based on the activity that has been historically and universally bestowed on judges and courts in their function of administering justice. The control and preservation of legality is from the curricular perspective n independent mode of action for prosecutors. These officials are conferred by law of a broad framework of attributions in which performance are required skills that correspond to other modes of action as referred to, and others that are not subject to any of the identified herein. For example, among the first, might be cited the provision of judgments made under inquiry and representation before the departments of the administration of justice for minors, incapable people, those lacking a legal representative and the very Cuban Government and, among the latter group, the checking of correspondence with the Constitution and the laws of juridical acts carried out by agencies of the State and its departments, the subordinate local bodies of People's Power and other economic entities and social institutions and citizens, as well as the delivery of binding resolutions with regard to the restoration of legality when deemed to have been broken. Meanwhile the administration of justice deals with deciding conflicts and disputes in the dissimilar ways that juridical relations are manifested. The performance of this function requires a considerable mastery of the skills required in the preceding modes of action, since they have a high sense of responsibility, fairness, sense of belonging, from a socio-legal projection identified with the ethical parameters of our political project. It must be noted that although specifically regulated, only the modes of action that correspond to the initial steps of the professional performance of the jurist are recognized, an example being the notarial function that is not included in that sense. In the formative legal practice are not systematized the legal performance levels, decontextualized from the specific professional issues relating to assuming them in correspondence to the socio-professional jurist performance. The educational practice reveals shortcomings in the evaluation process, from its own design and implementation, which affects the quality of the training process of the jurist. Interestingly, the proposal of Rodriguez, M (2009: 19) states "(...) it is not yet established how to conceive evaluation as a systematizing formative process, demonstrating once again that in the formation process of professionals, does not exist an integrative logic between evaluative and formative processes. " The assessment in the formation of a lawyer plays an important role. Regarding this Alvarez, R, M (1997:96) gives us interesting insights about our approach, which helps to base it by saying: "The graduates’ social receptors: the work places, often reject them, expressing their distrust of the professional preparation that has sanctified the evaluation mechanism. This puts a strain on the university formation of these institutions revealing a dichotomy between the evaluation-certification of degrees and the actual ability to incorporate the graduate to a productive professional life. " It is pertinent to devise assessments that correspond to formative intentionality of the jurist n relation to their professional performance from different modes, fields and spheres of legal action. Advanced educational trends advocate for a democratic educational relationship, to open channels for the committed participation of all those involved in the evaluation process in making appropriate decisions. As these ideas become effective and widespread in practice, it should counteract the negative effects of this function. Gonzalez, M (2001). Professionalizing evaluation is systematic, integrative and contextualized apprehension of the theoretical and practical contents of the profession, enabling the solution of specific theoretical and practical cases, from a totalizing position of the law. It is a process of transformation of the learner, from the development of their professional skills, according to the formative stage. Among its main features are: • It is a complex process, embodied in an integrated practical methodological activity which affects and conditions the formation of a lawyer. • It is based on the interdisciplinarity and transdisciplinarity of the legal content, in relation to the context in which it operates under the professional practice of the lawyer. • It requires new evaluative agents, such as legal practitioners, who will share their knowledge, skills and own assessments of their professional practice. • The application develops the power of synthesis and legal argumentation and the cognitive, analytical, interpretative, evaluative ability of the jurist, in the resolution of cases during the professional performance. • It has an elastic, dynamic character, results-oriented with specific purposes, facilitating the formation of a legal professional who responds to the growing and changing interests of modern societies. • It assumes thorough knowledge and appreciation of the object to be evaluated, in correspondence with the skills, aptitudes, and values and own assessments of the legal operator. • It focuses on developing learning of the student learning in relation to the formation of professional skills, which demand his/her, graduation in a given socio-legal framework. • It must meet the diverse educational characteristics of the students, as well as the multiplicity of labor contexts, leading in each case its formative reach, transversal to the teaching-learning process of the jurist. • It must be a comprehensive, motivating and ethical evaluating activity. It can not be reduced to measuring the level of acquired knowledge or focus solely on observable behaviors; it should inquire in what happens in the classroom and in the legal practice. The evaluation process acquires in the formative process of the jurist, higher qualitative levels, from its involvement in the production of new meanings and senses in the students. It is a dynamic, reflective, participatory process, which requires an interdisciplinary and contextual character, the study of the most complete conceptions in this sense towards the integral formation of the students, from the design and implementation of evaluations based on the professional performance. The juridical evaluative practice does not facilitate from its conception and implementation the logics of the jurist’s training process. This justifies the need to apply evaluations which favor the professional egress in relation to the modes, fields and spheres of legal action.
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