LAW TEACHING IN TOURISM

Introduction

We think Tourism represents a great deal for any state strategical development. We believe its diffusion and awareness must be so much present in formal as in informal education; thus, we will take over the law teaching issue in higher levels and oriented to tourism students.

From a historical perspective, it is not wrong to assert that Tourism syllabi, in South America in general and in our country in particular, are fairly new. And therefore the reflection on it remains, from a scientific point of view, in an embryonic state.

So recent is it that the National State has not been able (neither it did not want to, nor has it not been allowed) to include a university academic offer[1]. The first dilemma of the touristic career (still under debate) has been whether Tourism Ph.B., which comprehends hotel Management knowledge should be set forth, or it should be dealt with as two separate Ph.Bs with a common trunk. Although it is not our purpose to elucidate such an enigma, it is important to emphasize it, since it directly affects on any juridical subject content we should try to introduce.

We would also like to clear up that, previous to any discussion and for market reasons, Universities have come across the disjunctive as to incorporate careers related to hospitality industry into their faculties or departments. The second question was then: Where? Thus, some universities, chose a humanistic perspective and added them to their social sciences faculties[2]. Others, from a more technical view, tended to attach them either to their Statistics department[3], or to the Geography department[4]. The newest ones decided to create independent departments or faculties[5], others submitted their location to structural causes[6]. And finally, there were institutions who, from an interpretation closer to management, set them in the Economics environment[7]; situation which, by the way, coincides with our country’s political definition [8].
But if it was such a problem to set the Tourism Ph.B. at Social Sciences Faculty, none the less problematic was it to set a Law subject into the respective Ph.B. degrees (Hotel Management or Tourism).

From the curricular layout beginnings, it seemed obvious that the normative subject, which gave unity to the whole vision of professional future, could not be absent from the sector’s regulatory frame. And although, to some extent, almost everyone agreed to set this knowledge in the last career grades, the main issues every subject should be based on were not usually dealt with, i.e.: What is taught?; how is it taught?; and what for?
No wonder just until a few years ago one could take any university program and notice that its core themes were some sort of fast and summarized Civil Law course, with some reference to Hotel Management laws and travel agencies. Nothing more contradictory or detached from the content, skills and appreciations students should incorporate during this stage of development. The underlying idea seems to have been: “Should there be a Law subject, we do not know how or what for; then let the lawyer who gives it place its content”. And thus we have seen such nonsense as Tourism students trying to elucidate the right-possessor’s degree in a complex succession, or wondering about the differences between divorce and de facto separation or the like. Posed this way and stating the obvious, the experience has become frustrating for everyone.

It is not difficult to think this problem could be avoided, had they taken similar and tested pedagogical experiences as reference. Such as, for example, Law teachers from Economics and vice versa who long ago had to work getting over this kind of obstacles for the sake of a holistic vision.

The Law is not some panacea for all sector’s evil, nevertheless it soothes, modulates and directs them. And since we are dealing with a transverse activity as Tourism, it is sensible insert this subject at the end of the academic studies. The Law will work as an engine or as a hindrance, depending on how we build it as participating citizens.

WHAT

Following the test period two inquiries were made: 1) Is there some subject we can call: “Tourism Law” or are we just facing one of the many activities which require some specific regulation? And, after that 2) from which content should the very subject layout spring?

For the first question some authors (they certainly followed the Saxon Travel Law trend of thought) risked the first hypothesis focusing on the “travel agent” actor as the main generator of new contractual figures, so Puig andVitta[9] were able to assert the existence of a “…Tourism Law which is no longer framed in the traditional Civil or Commercial Law matrixes that is only partially concealed by the Navigation Law in both its species aerial and maritime”. Nevertheless, we think that in order to define the autonomy of a branch of the Law, it is necessary to discover whether the principles which govern it are axiologically original so that they make up a complete and closed systematic juridical construction, and make it unnecessary to appeal to the principles of another branch[10].

As we can see, the debate, still open, goes beyond an academic whim; since whether we choose one posture or the other it will suit the curricular development.

The second question also had dissimilar answers;

1) some understood they should assume students counted or should count on a solid civic formation which allows them to fully go into the different meanings of the law.
2) others proposed that although this was what “it should be” it was not what they perceived within the classroom; therefore the proposal was to “recover” the knowledge to frame the activity. That is to say, I can not develop or expose the “Law” theme if the student lacks the basic notions of “State”, “Nation”, etc…

3) a minority (probably more pressed by a limited time schedule than by curricular academic needs) tended to go straight to content nucleus; mentioning maybe during the process, but leaving it to the student’s initiative, the reconstruction task or the basic concepts incorporation.

HOW

Avoiding the pedagogical debate on whether content determines methodology or not; let’s admit at least they condition it. From our point of view, there are three factors that help in the way of teaching:

A) Teacher’s formation; the subject as given by lawyers bears their formation’s virtues and faults. This is because there are few or no Tourism and Law specialization courses; therefore this demand can not be reached with foreign proposals which obviously suit their own country’s legislations.
B) The institutional. In a structural sense on two levels;

1) From a macro-level variables can be:
i. “time schedule”,
ii. “duty”,
iii. “Level” (University or Further Education) will operate as filter and selection when it comes to establishing curricular priorities and
iv. “Setting” the career regarding the faculty or department it belongs to. Put in other words: if the tourism Ph.B. belongs to a Natural Sciences faculty or department its subject content in general, and the juridical ones in particular can be different from another one which belongs to an Economics faculty.

2) “Institutional culture” also prevents the subject from being dealt with as a water-tight box, but be into gear with others which are a key issue in the global problem interpretation. Thus Tourism Policies, Social Tourism, Programmed Learning, etc. feed and are fed by the normative.

C) The Political. Programs can not merely be a laboratory’s production, or a more or less lucid result of a couple of professionals´ experience. They should be a scientific and academic production reflecting and framed into a wider and serious political proposal, and giving the sector a real “state policy” status, highly above occasional speech and in harmony with the OMT directives to which we belong. [11]

To sum up: The strategies we have been looking through are diverse and deserve to be considered without dogmatism, as follows:

1) Several European programs in general and Spanish ones in particular have dealt with the issue from the different Law branches, so it is not odd to find a “Tourism Private Law” or a “Tourism Public International Law”, etc.

2) In our country, following our treatise writer’s tradition, some have established a General Part and a Particular Part; it is as much as saying that while the first one involves the subject’s founding concepts, the second one aims at the specific themes (Hotel Management, agencies, etc.)

3) Some teachers have focused on Law transmission, others have thought of the traditional case method and some of us have opted for mixed techniques.

4) But even if it is difficult to know where to start from, so it is to know where to arrive at. We have seen some complex proposals including trade issues, such as “Time shares”, which although they are closely connected to the touristic phenomenon, it is not thus since they compel us to long juridical considerations in order to comprehend them all. In other proposals it is worrying the lack of themes such as “Natural and Cultural Heritage” by understanding they exceed the required for the professional formation. We shall disagree with such an opinion, since we consider it axial in the subject into which every notion of “sustainability” fits.

WHAT FOR

“First in the intention, last in the execution”, as the old saying goes. The what-for-answer is usually given in that which some teachers call “objectives”, nevertheless most of the times its formulation may be so open and general that it produces ambiguity.

Who utters this first statement? Who outlines each subject’s objectives? : the University. How? Going to the polls with the teacher, with the specialist (or at least they should) Where? In the subject’s outline first, and in the general incumbencies afterwards. Why? By proxy.

With a dubious legislative technique, the 24.521 Higher Education Law, in its 42nd Article speaks of “competences” and delegates their resolution to university institutions. This has produced a chaos of overlapping careers (e.g. Guides) or confusion (e.g. between Tourism Ph.B and hotel Management Ph.B.). This could be solved just by declaring the career of “public concern”. This status compels both the Ministry of Education as well as the Council of universities to specify any careers professional incumbencies. Thus, giving some part to the CONEAU (National Commission of Evaluation and University Accreditation) in the institutional qualification, misleading academical offers could be avoided and the profession would be appraised as of those proposals having the minimum required quality. (That is why, no matter how difficult state supervision is for the private sector, several universities have been struggling for the career to be declared of “public concern”).

As verbally expressed, the somehow shared objectives (neither exclusive nor excluding) arising from the different programs are:

Cognitive:
1) To master the Law basic concepts
2) To relate the different social types with any enterprise’s juridical frame
3) To analyze jurisprudential cases

Procedural:
4) To diagnose responsibility regulations in particular situations
5) To decide whether to appeal to the judicial system and/or to the alternative systems of conflict solution
6) To apply and cooperate with the making of the different sector’s contract modalities

Appreciative:
7) To show interest in the cultural and natural heritage
8) To work interdisciplinary
9) To show respect for the rules

Sitting from the other side, students also have their own perception on the different answers. They usually give us some hints in the annual poll (always so significant):

A) For life
B) For the completion of my professional formation
C) For determining whether I will need a lawyer or not
D) For being able to count on another management tool

As we can see and despite generalization, institutions and students are not (at least on this point) so disconnected. Civic knowledge is indeed useful and necessary at any instance of citizenship, but in the context of a Tourism career it becomes unavoidably instrumental.

Thus, such an activity, intended to be a model and a development impeller, implies respect for the regulatory frame it is embedded in. Not because (as we said at the beginning) it is going to solve its problems, but because any activity dealt with a “fair play” has greater growth opportunity and generates inversion.

OUR PROPOSAL

- We think it should be talked about a Tourism Applied Law from a multiplicity of actors;
- That certain real deficiencies students normally “drag” from Technical school should be replaced, and therefore this requires an average time schedule;
- That as long as we invest on research, it will be possible to develop subject content;
- That it is necessary to generate academic forum and a courses offer which allows the completion of teacher formation lawyers need to give a multidisciplinary approach;
- That curricula must, without losing originality, integrate with the State’s general planning; and this planning should also articulate with the OMT guidelines;
- That the Tourism Ph.B. career should be proposed as of “public concern”, giving it study level hierarchy and removing shady-zones from its “competences”.

[1] During Daniel Sioli’s management as Tourism Secretary proceedings were taken at the UBA but they did not progress.
[2] e.g.: Caece, Champagnat, Universidad Nac. de Misiones, Universidad Atlántida, etc.
[3] e.g.: Univ. J. F. Kennedy,
[4] e.g.: Universidad Nacional del Sur
[5] e.g.: Universidad de Palermo, Morón, Abierta Interamericana
[6] e.g.: USAL set its Ph.B. at Social Sciences Faculty; Univ. Nacional de la Patagonia set it at Humanities in its seat of Ushuaia and at Economics in its seat of Esquel.
[7] e.g.: UADE, Universidad Nac. de Mar del Plata, Universidad de Belgrano, Univ. De la Marina Mercante, etc.
[8] 25.198/99 Law and Ciudad Autónoma de Bs. As. 59 Art. Statute.
[9] Puig, Adela M y Vitta Juan Pablo. Legislación y contratos turísticos (Legislation and touristic contracts). 2nd. Ed. Valletta Ediciones 1998
[10] Aftalión, Marcelo E. Acerca de la pretendida autonomía de las ramas jurídicas (On the assumed autonomy of juridical branches) . 16/06/1966 Law
[11] 19.644/72 and 23.409/86 laws