Reflections on legal education and social justice
Reflections on legal education and social justice, from Open Hand, newsletter of Law Reform and Social Justice (LRSJ) at the ANU College of Law.
December 2010: Contrary to a common cynicism or despair
The Law Reform and Social Justice Program at the ANU College of Law promotes an awareness of the need for law to adapt to – and at times to lead – developments in society, particularly conscious of the situation of people who lack power, capacity and opportunity to share in the comfort, security and autonomy enjoyed by most people in Australia. We do this in three areas: our teaching curriculum, our academic research, and the wider community.
My experience is that students have a keen interest in developing (and participating in) a curriculum which explores issues of law in social contexts through active and engaged teaching, and they have been active in promoting such an approach.
Contrary to a common cynicism or despair about students’ interest in matters outside study, work and their own entertainment, our experience is that students hunger for the chance to contribute to society, to use their developing skills and knowledge for others’ benefit, and to take responsibility for delivering results.
July 2011: Ideas of law reform and social justice
The ideas of law reform and social justice are not obviously or necessarily connected: law can be reformed without regard to social justice, and social justice is a policy goal which can be pursued without reforming law. But to put them together invites us to think about the occasions when the two do – or could or should – intersect. When can law reform be about social justice? And when can social justice be pursued through law reform?
Both terms require some clarification, and neither has a fixed meaning. In a conventional sense, law reform encompasses the many ways that changes are made to existing statements of law – through new laws and regulations, amendments, and judicial decisions. In my Law Reform course, I encourage students to think of ‘law’ itself more broadly, taking account not only of the posited law, but also the policy behind law, the law’s intended effects, and the diverse ways that law is practiced and implemented. More broadly still, law can be the social norms through which people perceive rights and obligations, in ways that complement or are at odds with the written law. Reform of the law therefore becomes a much more complex matter of public policy and process than mere legislative amendment.
Social justice is an idea that occurs in many disciplines – from economics to health, political science to engineering. It has as many different shades of meanings in Australia, but all are concerned essentially with fair access to social goods such as rights, resources, services and opportunities, in a market economy. In law, I think of social justice as a measure of whether and how law regulates power and wealth so that there is fair access for people whose ability to compete is compromised – people whose circumstances marginalise them in the markets that govern our lives. Bringing the two ideas together challenges law with questions of social justice, such as: Whose interests are promoted by a law, and whose are overlooked? When can and should a law limit or redistribute power and wealth? Does the law (or a particular law) promote or hinder social justice? Is there a gap in the law which leads to social injustice? How can a law be changed to address an issue of social justice?
The ‘law reform and social justice’ question can be asked of any law at any time, in ‘mainstream’ areas law as much as in specialist areas. The current inquiry into recognising Indigenous Australians in the Australian Constitution is an example of the ‘law reform and social justice’ question being asked in constitutional law. The same question is asked in administrative law, which is essentially about the control of government power, and in tort law which is concerned with allocating responsibility and redistributing loss.
The question arises in contract law and commercial law when they recognise and remedy inequality of bargaining power, and in corporations law when it regulates the power of private entities and protects consumers. Social justice concerns are apparent in the rules of evidence, which ensure fair treatment of witnesses and seek equality of arms in adversarial litigation, and in international law when it grapples with issues of human rights, refugees, mass atrocities and national security.
These ‘law reform and social justice’ questions are explored by our students through projects and activities, and in class and the curriculum.
December 2011: A joy and a challenge to harness all that students can offer
It is a joy and a challenge to harness all that students can offer social justice projects. The joy comes from seeing both the significant contribution that students can make to the success of a project, and the tremendous boost they get to their confidence and self-esteem. The challenge is in aligning projects with the ability and availability of students.
It is common for people in all sectors, when looking for an affordable way of getting expert help (in, for example, law, accounting, design and marketing) to think of students. The idea is that ‘they’d be keen to get the experience’, or ‘they’re smart with time on their hands’, or ‘they can do it and get academic credit for it’, and so on. Some of this is true some of the time, but none of it is true to the extent that students are a ready and reliable source of cheap or free labour, quite apart from whether they should be.
A Law school can create opportunities for students to be active in law outside their studies, in a managed way, organising student projects around some principles and understandings.
The first principle is context: that law students ought to understand the daily lived life of the law – people’s lives in which law is present or absent, helpful or oppressive, distant or immediate, coped with, misunderstood, or resented. A second principle is autonomy: that with guidance and support, students are able to – and should – take responsibility for projects, for their conception, design, implementation, success and failure. Finally, the first two principles lead to a third, voluntariness: to engage in social justice projects for academic credit would be a fundamentally different exercise (academic, taught, assessed, and confined), limiting students’ access to the insights and personal reward that are on offer.
These principles are pursued with certain understandings. One is that there is a lot that students have to do, and cope with, as well as working on a social justice project. Most importantly, they need to perform in the formal learning environment: studying, participating and being assessed. Students often have to adjust to living in a new town with much less personal support than they enjoyed through school, and increasingly have work to support themselves. And of course they have to cope with all the usual ups and downs of life and love and health and family.
Another understanding is that few students have the knowledge and life experience to take on a social justice project without at least some guidance, and often needing consistent mentoring and support.
Finally, social justice projects operate on the understanding that, for the students, the journey is as important as the destination, and they will learn as much or more from engaging in the task as the community will benefit from whatever it is that is produced.
A project is undertaken because someone thinks it is a good idea. An idea is ‘good’ only to the extent that it looks as if it is worth investigating. This is perhaps the point of most significant frustration and learning, for the students: that it can take a year to make something happen, but that when it happens, it works.
The lesson starts at the beginning, when what seems a like a good idea becomes a research exercise: finding out whether there is in fact a need, what exactly the need is for, how the need can be met, who can best meet the need. This is the process which is as important – and can be as enjoyable – as the result. That is a good point at which to talk about what is it that the social justice projects do.
The most suitable activity is one which is actually a ‘project’ – one with a clear goal to be achieved either in a short defined period (to capture students when they are available), or with no real time imperative (to span the various periods when students they are, and are not, available). The same thinking means that a student activity is not usually the provision of a service, because it carries with it implicit expectations of consistent activity over a long period of time. Exceptions to this require a much higher level of commitment from students, who have to maintain at least a minimum level of activity during exam periods and holidays, and in spite of intervening life events.
Whether it is project work or service provision, the social justice projects require much more of students than intelligence and enthusiasm. Students need training, in, for example, communication, facilitation, planning, evaluation, teaching, social and science research. And they require mentoring, guidance and a sounding board, to help them develop, to reassure them, and to ensure that what they are doing is sound and responsible. All this can come from academic staff, from external advisers and consultants, and from the students themselves as they gain experience and share it with each other.
At their heart, however, social justice projects are the students’ projects, and when we celebrate another successful outcome for the community – a legal education course, a fact sheet and brochure, new content on a website, a law reform submission and so on – we celebrate our student’ autonomy and responsibility, and their self-directed growth and learning.
August 2013: The wise and sincere activist
Law reform and social justice activity at the ANU College of Law can be traced back to a 1974 conference held by the ANU Law Faculty, ‘Australian Lawyers and Social Change’. The proceedings of that conference were published in a book of the same name edited by ANU academics David Hambly and Jack Goldring.
In 2004, the ANU Faculty of Law, with the National Institute of Social Sciences and Law, held another conference on Australian lawyers and social change, revisiting some of the earlier themes and taking a fresh look at the roles of Australian lawyers in the twenty-first century.
The conference featured plenary sessions on law reform, the judiciary, the legal profession, and legal education. Smaller concurrent sessions addressed gender and law reform, poverty and social justice, criminal justice issues, access to justice, lawyers as activists, and diversity in the profession, and featured sessions called ‘A less ‘white’ Australia?’, ‘Bypassing the courts, and ‘Using the system’. Papers and videos of the conference are at: law.anu.edu.au/lrsj/australian-lawyers-and-social-change-conference.
Hal Wootten, who had been at the 1974 conference, closed the 2004 conference with reflections on what had changed – for lawyers and their relationship with social justice – in the intervening 30 years. His paper is among those available on the website. Of law students and their legal studies he said:
… a warm inner glow in a lawyer’s heart is no substitute for professional competence and indeed excellence. There is nothing worse than seeing a worthy cause, an Aboriginal organisation for example, being served by a young lawyer who is all goodwill and enthusiasm but short on knowledge and skills. It is a betrayal of the client. Law school is the opportunity to build those skills and expand that knowledge, and the wise and sincere activist will squeeze every drop out of that opportunity …
July 2014: The necessary role of challenging privilege
At a panel at the Justice Connections conference at the University of Canberra, the panellists gave papers on the inadequacy of legal responses to workplace bullying, on the persistence of pregnancy discrimination in employment, and on the undervalued role of women as arbitrators.
The panellists told a story that resonates with current Australian politics and policy, a story of disempowered people who are bullied, of women who are pregnant, and of women discriminated against in commerce.
In each case, the obligation to redress the power imbalance, to remedy the harm, and to claim the right to dignity, rests with the victim; the onus is on the bullied to take on the bully, on the worker to take on the boss, on the professional to take on the market.
And, I wondered, why not? We are on the cusp of the age of non-entitlement. If the Senate allows, responsibility for care, support and community will move even closer to the individual, as it has been moving steadily since Margaret Thatcher commenced war on society.
The panellists told a story of harm and loss that is increasingly less cared for; the response is no longer one of shared social responsibility, but of individual responsibility. Bullied? Discriminated against? Marginalised? It’s your concern, not ours. In this new age the bullied are as thin skinned as those offended by racist language, pregnant women are as demanding of entitlements as the young unemployed, and female professionals ought make use of all the freedom and formal equality of the market.
But the panellists’ stories had an added dimension: lawyers are, if they choose to be, champions of rights holders and advocates for the oppressed. Law and lawyers need not necessarily be servants of the masters and the market; they can make room for people to push back, and to make claims for rights, self-respect and dignity.
I came back from the conference to my desk to mark papers, but with the panellists’ stories in my mind. As I assessed how much my students had learnt this semester, I was reminded of the importance of what, and how, we teach. Only if our teaching tells such stories will lawyers – our graduates – take on the necessary role of challenging privilege, balancing power, and protecting the vulnerable.
November 2014: How does law relate to social justice?
I have been thinking about the ways we can understand ‘social justice’ in law, principally for a book chapter I am writing on clinical legal education.
Social justice is a widely used term, usually undefined and at times contested, meaning different things to different people; Hayek notoriously dismissed it as having no meaning whatsoever. Across disciplines such as nursing, public health, law and economics, its generally accepted meaning is a state of fairness and equity; but of course ideas of what is fair will play out differently for different disciplines and in different circumstances.
The term ‘social justice’ has a long history, associated, for example, with the teaching of the Roman Catholic Church since the early 19th century, and with the organised labour movement since later in the same century. More recently, especially after Rawls’s seminal A Theory of Justice, a general, contemporary, idea of social justice usually entails the provision to all people of basic human needs, equal enjoyment of human rights, and some redistribution of resources to maximise the position of the worst off. This idea of social justice is well illustrated in Australia by its association with aspirations for Australia’s indigenous peoples.
How does law relate to social justice? Research across different disciplines suggests that for lawyers in particular, social justice signifies empowerment of under-represented minority groups, a just ordering of society, and a process of remedying of oppression. Questions, then, are the extent to which the relationship between law, disempowerment and oppression is, and ought be, addressed in a legal education curriculum. Are these questions that are addressed only in specialist, elective courses, or do they have a place in the core curriculum?
November 2015: Studying law is a struggle for many
A few weeks ago I received an email from a student, saying ‘I am passionate about social justice, and wish to work to improve the status of women. However, I am struggling to see how the law can achieve more subtle social reform, for example break social biases that perpetrate gender inequality’.
It is indeed a struggle to see how law can achieve social change, and there is not much in a conventional law school curriculum that offers an answer. In fact, the conventional law school curriculum is a large part of the struggle. Mere doctrinal knowledge serves only to sustain and replicate the inequitable power relations that are entrenched in and by law; law presents as needing change itself more than as an active mechanism for change.
When I spoke to the student about her struggle, I suggested she could see law as merely a tool, an option, which will be useful at times, not useful at others, and often not as useful as lawyers think it is. In a similar vein I was speaking recently to a young psychologist who was thinking about studying law ‘so I can be a human rights advocate’.
I suggested that she might skip the law, and be a human rights advocate anyway. While lawyers have certain skills, those skills are neither unique to lawyers nor essential to human rights advocacy. Many more human rights advocates in the world are not lawyers than are. Studying law is a struggle for many at the best of times; seeing a point to it is harder still.
One of the reasons we offer law reform and social justice activities is to open up to students the possibilities for pursuing justice through law, and to use those opportunities to reflect on law’s potential and limitations.