JURISTS IN BELGIUM: AN OVERVIEW
A HIGHLY DIVIDED "PROFESSION"
In Belgium, the terms for "lawyer" are jurist/juriste (all terms are given in their Dutch or Flemish/French versions), but they refer more to a statistical category of degree-holders (dr./lic. juris )[1] than to an occupational or professional group. Indeed, the differences between jurists are much greater than the traits they share.
Belgian folk conceptions make a rather sharp distinction between the highly visible legal practice of advocates, judges, notaries, and court clerks and the more "hidden" services of legal experts in the public sector (civil servants) and private employment (house counsel, jurists in nonprofit organizations, etc.).
Advocates, notaries, judges, and jurists in private employment and public administration also are profoundly differentiated in other ways.
First, the various categories are differently "bound" to the exercise of their legal expertise. Many who enter private firms or the public sector (except as judges) cease to be jurists in a narrow sense: they become managers or executives and only infrequently do legal work. By contrast, ethical codes prohibit advocates from combining their practice at the bar with "nonprofessional" activities, such as selling insurance or real estate. Second, lateral mobility is rare, except for occasional movements from the bar to the judiciary or private sector employment. Third, an overarching association of jurists never has existed, and, consequently, there has been no general professional project for "collective mobility," size control, self-regulation, or the formulation of universal ethical codes (Larson, 1977). The various categories of jurists have developed separate associations, of which the corporations of advocates and notaries are the oldest and most powerful. However, differentiation and decentralization also are the rule within each category. Advocates and notaries are organized in highly autonomous local associations, which have relinquished few powers to the national federation. Judges associate with each other on the basis of their positions within the judicial hierarchy. Finally, the battle for control over "production by producers" (Abel, 1985) is not primarily a struggle between jurists and nonjurists. Conflicts over market position often are challenges between neighboring occupations within the world of jurists: advocates against notaries against jurists in nonprofit organizations, and so on.
WHAT JURISTS DO
Membership in the bar (balie/barreau ), which alone enjoys rights of audience in the courts, is reserved to jurists who are fully self-employed and who conform to the ideal of a legal profession (approximately 30 percent of all economically active jurists in 1984). The bar itself is divided into full advocates (70 percent) and apprentices (stagiaires—30 percent). In their external relations both groups operate as advocates (advocaten/avocats) and have the right to represent clients in court, but within the professional community (orde van advocaten/ordre des avocats) apprentices have the status of minors. The 7,500 advocates now in private practice are distributed among twenty-six local bars, although very unevenly. One in every three Belgian advocates belongs to the Brussels bar; nearly 60 percent practice in Brussels, Ghent, Antwerp, and Liege. Until 1967, advocates had to compete with a small number of pleitbezorgers/avoués —a soft version of the British solicitor.
Notaries (notarissen/notaires ) are public office holders appointed by the Department of Justice. However, as an occupational group they claim the
autonomy and status of a liberal profession. Sociologically they resemble advocates much more than civil service jurists. The function of the 1,200 notaries (5 percent of all practicing jurists) is to write, hold in trust, and deliver copies of contracts for the exchange and mortgage of land, wills, gifts, and marriage contracts. They also conduct public auctions of real estate and execute legacies. Finally, they advise about legal and financial affairs.
The careers of judges (rechters/juges ) and prosecuting attorneys (open-baar ministerie/ministères publics ) are closely intertwined. Both groups (which total 7 percent of jurists) are called by the same name: magistratuur/magistrature.
The vast majority of jurists in government (15 percent of all practicing jurists) perform functions in the general administration (mostly national). A second group within this category are law teachers (in Belgium all types and levels of school, including "private" schools, are fully subsidized by the government). Both groups are civil servants.
By far the largest subgroup of jurists (approximately 40 percent) work in commerce, finance, industry, and private nonprofit organizations, but they are differentiated by function and degree of self-employment. The first variable divides this group into jurists practicing as lawyers in the narrow sense—house counsel (bedrijfsjuristen/juristes d'entreprise) and legal advisers in the private nonprofit sector—and jurists whose work is predominantly nonlegal (the larger subcategory). The other variable distinguishes a very large group of salaried employees from a tiny segment of legally trained employers or merchants. Privately employed lawyers are not subject to a professional code of ethics; they are responsible only to their employers.
Finally, there is a miscellaneous category of experts who lack formal credentials but perform legal functions: tax consultants, accountants, court and notary clerks, criminologists, and others. Some are included in the prevailing conception of legal personnel; others are not.
SOCIOGRAPHY OF LEGAL PERSONNEL IN BELGIUM
Quantitative Developments: Discontinuous Growth
In 1986 there were approximately 30,000 qualified jurists in Belgium, of whom more than 80 percent were economically active. Seen in relation to the total population, that is one jurist for 330 persons. In 1840 there were less than 1,800 legally trained people or one jurist for 2,300 persons. The jurist population thus has expanded considerably: sixteenfold in gross numbers, sevenfold in relation to the general population (see table 5.1).
The rate of change varied greatly during these 150 years. Three growth cycles can be discerned in the history of law school output (and in the accompanying increase or decrease of the jurist population) (see table 5.2). From 1875 to 1890 the annual output of law degrees rose considerably. This was followed by a very long period of decrease (1895-1932) and then stabilization at the level of 1890 (1932-1948). The second growth cycle was much shorter. There was a very high production of law graduates during the early 1950s. Again, this expansion was followed by a fall in output (1956-1963). The last growth cycle still is developing. At first the annual output of law school graduates increased spectacularly: from 496 in 1969 to 1,144 in 1975. Since then, production has stabilized but at such a high level that we may expect the jurist population to increase by half in the next fifteen years (see table 5.3).
The extraordinary growth of the jurist population conceals another development, however: there has been a real erosion of jurists as a proportion of university enrollment. Jurists were more than 20 percent of all persons with academic degrees in 1937, but they were 16 percent in 1961, and only 10 percent of all those graduating from a university in 1984 (see table 5.4).
Of course, figures do not speak for themselves: they must be confronted with other data if we want to understand patterns of quantitative development. The explanatory variables can be dichotomized into pull and push factors. Most research has been devoted to studying the elements that create conditions favorable to legal experts, generate business for jurists, and, thus, pull people into law schools and, subsequently, into legal occupations. These include the development of a market economy and the bureaucratization of political rule (Rueschemeyer, 1973:5; Pashigian, 1977), legal activity (Grossman & Sarat, 1975), population increases (Abel, 1988), and the growth of state regulation (Pashigian, 1977). Various indices have been suggested: real gross national product, the number of active corporations and other measures of industrial and commercial activity, bankruptcies, automobile accidents, the divorce rate, the number and budgets of regulatory agencies, the number of laws and regulations, and the litigation rate. Push factors, by contrast, accelerate the influx of prospective students or jurists without the direct intervention of market demand. Measures that relax the entrance requirements for law schools and positive discrimination in the admission of students from minority groups are good examples.
More work needs to be done to understand both the production of lawyers and the demand for their services (Abel, 1988). This is not primarily a problem of gathering data. Many theoretical questions still have to be answered about the causal relation between variables. For example, does a rise in the volume of court cases pull more people into the legal
profession, or does an increase in the number of lawyers lead to rising litigation rates? Why has an increase in the legal activity of notaries—238,041 notarized documents in 1899, 559,308 in 1968 (CRISP, 1974: 17)—been attended with a continuous decline in the number of notaries, with no concomitant loss of the original monopoly?
Two Push Factors
There can be no doubt about the influence of two push factors in the spectacular increase in the number of jurists after 1970. In 1964 a major reform of the entrance requirements for higher education dramatically opened the doors of universities: many high-school programs that previously did not allow access to colleges and universities were promoted to college-preparatory status. This reform, which enabled many more eighteen-year-olds to attend university, had a particularly strong influence on the recruitment pattern of law schools. Classical (Latin and Greek) studies in high school were dropped as an admission requirement. The impact on law school output was felt six to seven years later: an average of 374 law degrees were awarded annually in the 1960s, 671 in 1970, 781 in 1971, and 909 in 1972 (see table 5.2).
A second push factor is related to the emancipation of disadvantaged groups. The dramatic rise in the yearly output of law degrees, from 404 in 1968 to 1,220 in 1982, must be attributed largely to the breakthrough of female students, who received only 16 percent of law degrees in 1968 but 37 percent in 1983 (see table 5.2). Between 1968 and 1983, the number of law degrees earned by men increased 109 percent, but the number earned by women rose 540 percent. In the period following World War II, the Flemish population also attained greater equality (Huyse, 1982). Table 5.5 clearly shows that the recent rise in law school output also expresses the greater participation of Flemish youth in university education in general and legal studies in particular. The Flemish represented 47.5 percent of law graduates in 1968 but 58.1 percent in 1983. (They were about 65 percent of the general population both years.) The combined effect of the two push factors is visible in the fact that the ratio of French-speaking male law graduates to Flemish female law graduates declined from 7.7:1 in 1968 to 1.3:1 in 1983.
Older and Newer Types of Legal Experts
We learned in the preceding pages that the total body of legal expertise has vastly increased in Belgium. However, the incidence and rate of quan-
titative change vary substantially in the various occupations in which jurists are active. True, all branches have grown absolutely, but in proportion to general population, we find different types of development (see tables 5.6 and 5.7). One category of jurist—notaries—exhibited negative growth: there were 4,422 people per notary in 1841 and 8,000 in 1984. Until the 1960s the judiciary followed a somewhat similar pattern, from 7,350 people per judge in 1841 to 8,412 in 1960. This downward trend recently was reversed, when a major reform of the organization of judicial work dramatically increased the size of the judiciary. Three other branches undeniably display real growth. In the last 140 years the number of advocates grew eightfold in absolute terms and threefold relative to population. Jurists in government service realized a similar growth in less than fifty years (1937—1984). The fastest-growing occupation, however, is jurists in private employment, who numbered about 800 just before World War II but are about 10,000 today. Their breakthrough came in the 1950s. Almost 60 percent of the growth of the jurist population between 1947 and 1961 occurred in this branch, which expanded from about 1,500 to about 3,600, while the bar gained an additional 300 members.
The uneven development of the various occupations considerably modified their proportions of the jurist population. Looking at the distribution of jurists among practice settings (see table 5.7), we can see that the traditional categories (advocates, judges, and notaries) constituted more than three-fourths of the profession before 1940 but less than 45 percent in 1984. Jurists in private employment tripled their share in less than fifty years; they now are by far the largest category (about 40 percent of all jurists), followed by advocates (30 percent) and civil service jurists (about 15 percent).
One important consequence of this historical development is a major change in the size and type of the organizations within which most jurists practice. Before 1940, 80 percent of all jurists (advocates, notaries, and judges) worked alone most of the time. Today, 55 percent of all legally trained people unquestionably work in relatively large organizations, such as industrial, commercial, and financial firms and governmental agencies.
On the surface, the Belgian situation contrasts sharply with many common law countries, where most jurists are private practitioners—not salaried employees. It is questionable whether this signifies a substantial difference in the total amount of legal work accomplished and in the translation of legal functions into legal roles. Nevertheless, the margin for professional autonomy necessarily will be much smaller in Belgium than in some common law countries, given the preponderance of private and public salaried employment among jurists.
Increasing Participation of Disadvantaged Groups
The first woman jurist in Belgium, Marie Popelin, graduated in 1888. Having been denied entry to the bar, she fought a long court battle, which aroused great public controversy. She lost her fight and became a popular leader in the early feminist movement.
Women were admitted to the bar in 1922. However, demolition of the formal barrier did not immediately bring many more women to the law schools. They remained between I and 4 percent of the jurist population until the early 1950s. The low proportion of women among all undergraduates before 1950 is only part of the explanation, for other university branches attracted many more women (see table 5.8). When the number of women undergraduates abruptly started to grow in the 1960s, the law schools again were slow to catch up.
The breakthrough came in the 1970s. Between 1970 and 1984 the absolute number of women jurists rose almost fourfold, and their proportion of the profession doubled to about 22 percent (see table 5.9). Extrapolating from the figures in tables 5.2 and 5.3, we may expect that women will constitute more than a third of all jurists in the early 1990s. However, the earlier attitude of women toward legal studies persists: law schools still attract a smaller proportion of women than do the other university schools and departments (except civil and agricultural engineering) (see table 5.8).
What discouraged many educated women from becoming jurists? Formal discrimination ended with the admission of women to the bar in 1922, the judiciary in 1947, and the office of notary in 1950. One explanation may be that women choose studies that lead to jobs women traditionally have held (psychology, pedagogy) or to careers, such as teaching, where discriminatory practices are thought to be limited. If so, the allocation of careers within law may be based on women's expectations about discrimination. A closer examination of the proportion of women jurists in the various practice settings suggests other selection criteria (see table 5.9). There are few women jurists among notaries or in industrial and commercial firms, banks, insurance companies, and estate handling firms. Compared to the proportion of women among law graduates, women jurists also are underrepresented in the judiciary and civil service but slightly overrepresented in nonprofit organizations, legal education, and the bar. Thus, we may hypothesize that women jurists "feel good" in occupations where a career can be discontinuous, part-time work is available and socially accepted, and status devaluation is most probable (law teaching, the bar, and jobs in non-profit organizations). They will be less comfortable in occupations that are high status (the judiciary, notary
offices) and where a career must be continuous and work performed full time (in the industrial commercial, and profit-oriented service sectors and the civil service). The distribution of women, then, probably is not the product of deliberate choices about particular forms of legal work but a gender-bound allocation of career opportunities.
What effects will these demographic changes have on the way legal functions are performed? It would be unwise to expect to see substantial effects from the entry of women within the next twenty years or so. Recently, the proportion of women with law school degrees who remain unemployed (voluntarily or involuntarily) has been higher than that of men law graduates (see table 5.10; also Bonte [n.d.: 26]); more also work part time and have discontinuous careers. These occupational characteristics seriously diminish the influence of women jurists on the profession as a whole. In addition, women jurists still lack full access to influential positions within each occupation: in 1983, women were 15.5 percent of all judges (257/1,659) but only 8 percent in the courts of appeal and 3 percent in the highest court. That year women were about 25 percent of all advocates but only 7 out of the 325 members of the local disciplinary councils and I out of the 26 heads of local bars.
In yet another way the composition of the jurist population begins to reflect general emancipatory processes in Belgian society. Until the 1960s the Dutch-speaking Flemings, although a demographic majority, were un-derrepresented in the major political, economic, and cultural spheres of the country. The French-speaking Walloons and inhabitants of Brussels also dominated many professional groups, not least because of their higher participation in university education. Flemings obtained only 42.5 percent of the law degrees awarded between 1956 and 1965, although they were about 65 percent of the general population. By 1984, however, Flemings obtained 62 percent of law degrees. As a result, Flemish jurists slowly are taking over elite positions within the bar, the Royal Federation of Notaries, and the Belgian Association of House Counsel. This may effect changes in the organization of legal work. Flemish jurists look more to Dutch and Anglo-American models for their professional mores than do their French-speaking colleagues. The result well could be a shift from a Latin to a northern European legal culture. Signs of such a shift can be found in the differences in substance and form between the regional laws (decreten/décrets ) of the Vlaamse Raad and the Conseil Wallon (the "parliaments" of the northern and southern regions), the divergent jurisprudence of the Flemish and francophone chambers of the Raad van State/ Conseil d'Etat (highest administrative court in Belgium), and the writings of Flemish legal scholars.
Class Origins Still Are Important
Class always has affected entry into the jurist population and allocation of law graduates to the various legal roles. The first threshold is access to legal studies. In 1965, 65 percent of all students at the University of Leuven Law School (which produces almost a third of all Belgian jurists) came from upper-class families (see table 5.11). The effects of positive discrimination (scholarships for working-class students and more flexible entrance requirements) are clearly visible in later years, which show a substantial decrease in the proportion of students from upper-class families and an even more pronounced rise in the participation of students with lower middle-class origins. This general trend was particularly strong between 1965 and 1973 but since then has slowed down or reversed, and the position of the lowest income group hardly changed. Law school today continues to draw from more privileged backgrounds than other university departments.
The class profile of jurists naturally reflects this situation. Advocates and notaries are even more privileged. Notaries display a particularly high degree of occupational heredity. Claeys (1974) surveyed a representative sample of Leuven law graduates in 1935, 1940, 1950, 1955, and 1960 and found that 67 percent of notaries and 41 percent of advocates had fathers with university degrees, 56 percent of notaries and 28 percent of advocates had grandfathers with university degrees, 43 percent of notaries and 14 percent of advocates had fathers in the same profession, and 18 percent of notaries and 3 percent of advocates had grandfathers in the same profession.
LEGAL EDUCATION AND SOCIALIZATION: THE MAJOR ROLE OF LAW SCHOOLS
Studies of legal education shed light on such crucial processes as the creation of legal expertise, recruitment into the various legal roles and occupations, preservation of a fairly homogeneous self-image among the branches of the jurist population, and maintenance of the prevailing definition of the professional situation. Ever since 1835, a university degree has been a formal requirement for advocates and judges. From the early years of the Belgian state, a law school degree also permitted entry to the civil service. Only notaries did not need a full academic training until much later.
Socialization of prospective jurists was and is a multiphase process. It starts in the family. We know that 40 percent of all law students at the
University of Leuven in 1981 had upper- and upper-middle-class origins; many were related to a legally trained person. We may assume that in these cases the assimilation of images about lawyers will have started well before the student crosses the doorstep of the university. The law school is the second—and for most future jurists probably the major—socializing influence. The facts that law schools have a monopoly over formal legal training and that there are no subsequent state or bar examinations give those schools considerable weight. Certain characteristics of Belgian law schools increase their impact: legal studies take five years (two undergraduate, three graduate); many faculty members are only part-time teachers and bring to the classroom their professional experience as advocates, notaries, judges, bankers, and similar functionaries; students have no opportunities to take summer jobs in law firms or to work in a government or nonprofit law office and consequently are totally dependent on the image of lawyers and the legal system presented in the classroom.
Other features reduce the socializing influence of the law schools, however: first-year undergraduates start their legal studies immediately after they leave high school and, therefore, often have no strong commitment to the subject; Belgian students return home every weekend; experiences that might encourage anticipatory socialization (such as membership in prestigious law reviews, early job hunting or preparation for a bar examination) are not available.
The first job is the third important socializing agent. In two of the legal roles (advocate and notary) this occurs during a relatively long period of apprenticeship, as we will see later in this chapter.
RECRUITMENT INTO LEGAL ROLES AND OCCUPATIONS
The allocation to legal roles is mediated by several steplike processes and intervening variables. Although we already have discussed who comes to law school, it is harder to know why they come. A study at the University of Leuven Law School suggests that many first-year students enroll because other subjects require quantitative skills they lack (De Neve, 1983).
In order to describe recruitment into legal roles during and after law school training, we may find it helpful to use Elliott's distinction between individual processes of choice and commitment and the selection mechanisms employed by the profession itself (Elliott, 1972: 75). "[T]he range of alternatives available to an individual is progressively limited until eventually choice takes place within a relatively narrow range" (ibid., 72). This process of reducing alternatives is affected by factors operating inside and outside the professional groups.
In all countries law school performance correlates with the type of law
practice a graduate enters after leaving the university. In Belgium it has a much more direct effect: half of all first-year law students never earn a degree. There is no reason to assume that ascriptive characteristics significantly affect performance. Although students have a choice of courses only in their fifth (last) year, ascriptive elements, such as family background, may play a prominent role here.
The range of first jobs open to law school graduates is limited by a variety of factors. When the economy is stagnant and the output of newly graduated jurists is very high, as has been the case since 1970, obtaining any job is a victory. Getting the job one prefers often is postponed to better times. Law school performance is important, particularly for those who want to join private companies. Ascriptive elements are very influential for those who become advocates or notaries, however, as we will see later. The recruitment of judges and government jurists is based partly on examinations, partly on political patronage (Huyse, 1974). All cabinet ministers can influence who is recruited and promoted as a civil servant in the various administrative agencies that fall within their jurisdiction. They must, however, respect the principle of proportionality, which allocates civil service appointments among the partners of a coalition government. All this facilitates the emergence of political patronage in the recruitment of judges and civil service jurists.
WEAK SUPPLY CONTROL
It is difficult to speak of a professional project of supply control among the jurist population as a whole. Many of the usual goals of such a project (the elimination of nonacademic modes of entry, the imposition of high standards of training, the introduction of formal compulsory university examinations) already were in place in the early clays of the Belgian state. University reforms (which may have affected supply) were not the produce of a professional strategy but partly the initiative of medical and law school faculties and partly the resolution of a struggle between the two principal adversaries in Belgium: those who perceived the secular state as the main agency in the production of legal and medical experts and the Catholic party, which defended the autonomy of the denominational University of Louvain. The role of jurists was limited by the absence of an overarching association, and jurists also were divided along the same lines as other political actors. Consequently, restrictions on the production of legal experts never originated within the jurist population but rather expressed the characteristics of the political and educational system as a whole. Entrance requirements were rigid, fees were very high, sociocultural forces discouraged women from attending the university, and there
was no secondary or higher education in Dutch (Flemish) before 1935. It is not surprising that the number of law students increased dramatically when these hurdles disappeared one after another, starting in 1960.