It is an aphorism in Western society that those who cannot work successfully in their chosen profession often resort to teaching the very same discipline. While this statement does injustice to the numerous teachers who passionately pursue their chosen field of education, it is uncannily accurate in describing the faculty of South Korean law schools. The accuracy of the aphorism stems from the fact that the vast majority of law professors in South Korea were unable to pass the South Korean bar exam and, after repeated failures, resorted to the teaching of law.
Normally such unaccomplished individuals would never be able to achieve a law professorship. However, in South Korea a combination of history and poor legislative drafting colluded to bring about this disastrous occurrence. Up until last year there was a major disconnect between the study of law at university and success on the South Korean bar exam. For decades, obtaining a university legal education was irrelevant in the process by which one became a lawyer. Often it was counterproductive to engage in university study. Individuals who studied law for years and even decades at university repeatedly failed to pass the bar exam while self-taught sons of farmers who studied at home and away from the universities passed and became lawyers. In the end almost every university in South Korea had a legal program, but very few of their graduates, if any, passed the bar exam. The few individuals who passed the bar exam, with or without university help, went on to be lawyers. Many of the failures stayed in school eventually being granted masters and doctorates in law and then, primarily due to connections with the faculty, obtaining a position as a law professor. In that position they continued the cycle of failure with their own students.
Into this situation came the National Assembly with the idea to create western style post-graduate law schools based on the U.S. system. This concept had two laudable goals. The first of which was to lower the cost of hiring a lawyer by vastly increasing the number of lawyers. The second was to reduce the potential for corruption in the law by creating a class of lawyers who were not connected to each other through their attendance at one judicial training center and who were not connected to the chaebols and politicians by dint of service as a judge or prosecutor. For this latter purpose, and for diversity and fairness, the new law schools were spread throughout the country, although Seoul inevitably received the largest allotment.
Unfortunately the interests of the entrenched law faculty at these universities and the goals of the government were diametrically opposed. The entrenched law faculty envisioned effortlessly obtaining an unearned higher position in South Korea society while the government envisioned a new staff of law professors drawn from experienced lawyers who would be able to teach the students properly. In the end the entrenched law faculty won out and only 20 percent of the professors in the new schools were required to be former lawyers. This left the new law schools in the awkward situation where up to 80 percent of the faculty were individuals who had never passed the bar exam, had never practiced even one day as a lawyer, and yet were to be entrusted with teaching law to individuals who were almost certain to become lawyers.
Adding to the senselessness these entrenched faculty members arranged to devalue the “academic” qualification of the new law school degree. Under this absurd system an individual with a law school degree, and concomitant lawyer experience, is now considered less qualified to teach law then individuals who have repeatedly failed the bar exam but obtained an “academic” doctorate outside of the new law schools. This absurd result extends to include individuals who were unable to complete doctorates in South Korea but whose English was sufficient to obtain a doctorate in general legal study for foreign students at a U.S. university. Ironically a degree considered inferior in the U.S. and often used by U.S. universities merely to increase tuition revenue. Even these professors, despite being double failures, are considered superior to those who have obtained a law degree and practiced law.
To compound this foolishness these professors then engage in vicious political maneuvering. As every law professor has lifetime tenure the maneuvering centers around petty disputes such as who has the office closer to the center or who teaches the classes related to the bar exam. And once again the latter is not determined by the practical experience of the law professor but whether the professor has written an article on the subject. This incongruous rule results in judges with over 20 years experience teaching arcane subjects like international sales transactions while individuals who have never practiced as a lawyer, or even become qualified to practice law, are teaching core legal subjects like civil procedure and criminal law.
Unfortunately for the law students the stakes are not nearly so low. These students spend years of their lives and a small fortune trying to graduate and succeed at becoming a lawyer, something the majority of their professors could not accomplish. This is when petty university politics and asinine rules written by entrenched faculty result in inadequate instruction in core bar courses for these students. The low pass rate among the countryside schools is a direct result.
The final nail in the coffin of the new law schools is the fact that those students who fail to pass the bar exam are now pursuing “academic” doctoral degrees in law with the idea of becoming future law professors. The irrationality of the entire system is shown by this result. When a student who cannot pass the current bar exam, despite the now 80 percent pass rate, returns to school, obtains an “academic” doctorate and then is considered qualified to teach future law students it is obvious the entire system is preposterous.
In the end these new law schools are destined to fail unless the government either adopts wholly the U.S. system, including using only qualified lawyers to teach law or returns to the old more traditional civil law system where those with the ability to pass the bar exam can ignore those professors who were never able to pass.
By Daniel Fiedler
Daniel Fiedler has been a professor of law in South Korea since 2006 and a licensed attorney in California since 2000 and Arizona since 1998. ― Ed.