Social justice jurisprudence of clinical education programme: A paradigm shift from legal education to justice education

Abstract

The legal profession has remained relevant in bringing about positive transformation in society — with leaders, policymakers, and change makers around the world mostly possessing a background in the law. That said, the trust, and positive image, enjoyed by legal professionals continues on a declining path. Considered more glamorous, the legal profession has gone astray from the path of social justice. In this article, I argue that the negative perception of legal professionals is, in large part, because of the way legal professionals are taught and trained in law schools. I argue that legal teaching pedagogy in South Asia, and generally in developing countries, is a product of colonial structure. Even after the so-called decolonisation movement, law schools and universities, for example in South Asia, institutionalised a legal pedagogy unsuited to the epistemic actualities of their societies. A law student in South Asia was and continues to be taught the Western conception of what the law is and its relationship to justice. In a legal culture carrying the transplanted laws of the colonisers, the students of developing countries are meticulously trained in the technical skills of reasoning and interpretation by applying Eurocentric guidelines of positivist construction. In light of this, I propose a shift in legal education: to transform the existing legal education and pedagogy into ‘justice education’. I focus on the ancient principles — located in the Eastern legal philosophy — of empirical reasoning and the importance of the human nature of sociability in arriving at social justice. To combat the tendency of insulating law students from societal problems, I propose a social justice-driven legal pedagogy. I have also reflected on some practices that ‘are’ and highlighted other practices that ‘ought to be’. My thesis connotes that the legal profession has an innate role in building the capability of individuals who are deprived and excluded. In line with it, I present examples of scalable clinical legal education being practised specially by the Kathmandu School of Law that can create multidimensional legal professionalism.

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Notes

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  3. 3.

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  7. 7.

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  8. 8.

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    Swanson, ‘How the Most Disliked …’ (n 3).

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  21. 21.

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  23. 23.

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  24. 24.

    Ibid.

  25. 25.

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  26. 26.

    Oxfam International, ‘World’s Billionaires Have More Wealth’ (n 21).

  27. 27.

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  29. 29.

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  31. 31.

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  32. 32.

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  33. 33.

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  34. 34.

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  37. 37.

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  38. 38.

    For detailed deliberation on the principle of anti-subordination development threshold theory of justice, see Yubaraj Sangroula, Right to Have Rights (Lex and Juris Publication 2019); Martha Nussbaum, ‘Capabilities and Social Justice’ (2002) 4(2) International Studies Review (International Relations and the New Inequality) 123–135.

  39. 39.

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  41. 41.

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  42. 42.

    NR Madhava Menon, ‘Clinical Legal Education: Concept and Concerns’ in NR Madhava Menon (ed), A Handbook on Clinical Legal Education (Eastern Book Company 1998).

  43. 43.

    NR Madhava Menon, Reflections on Legal and Judicial Education (2009) 137.

  44. 44.

    For the overall impact of non-clinical model legal education, see Frank S Bloch (ed), The Global Clinical Movement: Educating Lawyers for Social Justice (Oxford University Press 2011).

  45. 45.

    Yubaraj Sangroula, ‘Holistic Approach to Delivery of Legal Aid Services: Beginning from Community Responsive Legal Education and Professionalism’ (2007) 1 NJA Law Journal 213–226.

  46. 46.

    Shashi Tharoor, An Era of Darkness: The British Empire in India (Aleph Book Company 2016) 105–125.

  47. 47.

    Ibid. 111.

  48. 48.

    Ibid. 106.

  49. 49.

    Samikshaya Bhattarai and Prakash Bhattarai, ‘Justice Delayed Is Justice Denied’ (Kathmandu Post, 8 June 2018).

  50. 50.

    Yashomati Ghosh, ‘Indian Judiciary: An Analysis of the Cyclic Syndrome of Delay, Arrears and Pendency’ (2017) 5(1) Asian Journal of Legal Education 21.

  51. 51.

    Stephen Wizner, ‘The Law School Clinic: Legal Education in the Interests of Justice’ (2002) 70 Fordham Law Review 1929.

  52. 52.

    Olanike S Adelakun-Odewale, ‘Role of Clinical Legal Education in Social Justice in Nigeria’ (2017) 5(1) Asian Journal of Legal Education 88.

  53. 53.

    Richard Grimes, ‘The Theory and Practice of Clinical Legal Education’ in J Webb and C Maugham (eds), Teaching Lawyers’ Skills (Butterworths 1996) 138.

  54. 54.

    Mao Ling, ‘Clinical Legal Education and the Reform of the Higher Legal Education System in China’ (2007) 30 Fordham International Law Journal 421, 432.

  55. 55.

    For more discussion in this regard, see Sangroula, Right to Have Rights (n 38) 27–36.

  56. 56.

    Upendra Baxi, Towards a Socially Relevant Legal Education, University Grants Commission (1975–77).

  57. 57.

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  58. 58.

    Shashikala Gurpur and Rupal Rautdesai, ‘Revisiting Legal Education for Human Development: Best Practices in South Asia’ (2014) 157 Procedia: Social and Behavioral Sciences 254, 255.

  59. 59.

    Ibid.

  60. 60.

    Ibid.

  61. 61.

    Emile Durkheim, The Division of Labor in Society (first published 1893, George Simpson tr, Free Press 1960).

  62. 62.

    Lawrence M Friedman, The Legal System: A Social Science Perspective (Russell Sage Foundation 1975) 15.

  63. 63.

    Ibid.

  64. 64.

    Lawrence M Friedman, ‘Law and Society: An Introduction’ (Prentice-Hall 1977) 76. Another scholar defines legal culture as ‘a specific way in which values, practices and concepts are integrated into operation of legal institutions and interpretations of legal texts’. John Bell, quoted in Mark van Hoecke and Mark Warrington, ‘Legal Cultures, Legal Paradigms and Legal Doctrines: Towards a Model for Comparative Law’ (1998) 47 International & Comparative Law Quarterly 495. These two definitions are abstract, however. The legal system, in a developing country, is characterised by a ‘minimum role in the society’. The larger part of the human relations in a developing society (country) is controlled by ‘traditions’ that might be both pro– and anti–human rights in nature. The legal culture in the context of developing countries is a ‘specific action of expanding the role of law in dealing with human relations in the society by absorbing the positive traditions with the system and preventing the negative ones. The legal culture as a dynamic phenomenon is a means to break the “grotesque cycle of regressive status quo and violation of human dignity — that is to say poverty and deprivation”, including discrimination of all forms.’ See Yubaraj Sangroula, Jurisprudence: The Philosophy of Law (Kathmandu School of Law 2010) 243–286.

  65. 65.

    NR Madhava Menon, ‘Designing a Simulation-Based Clinical Course: Trial Advocacy’, in Menon, A Handbook on Clinical Legal Education (n 42) 178.

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    The significance of ‘legal culture is that it is an essential intervening variable in the processes of producing legal stasis or change’. See Lawrence M Friedman, ‘The Concept of Legal Culture’ in David Nelken (ed) 29 Austl. J. Leg. Phil. 1 2004, Comparing Legal Cultures (1997) 33. Development of legal culture is essential to overcome the static position of law. In the case of developing countries, the concept of legal culture is especially important for timely reforms in the system of law as well justice. See Volkmar Gessner, ‘Global Legal Interactions and Legal Cultures’ (1994) 7(2) Ratio Juris 132–134. The importance of legal culture in developing countries is bigger because developing countries often tend to import laws and principles from Western nations’ legislation, codes, or, sometimes, even the entire legal system as a part of modernising their domestic legal frameworks. See Franz von Benda-Beckmann, ‘Scapegoat and Magic Charm: Law in Development Theory and Practice’ (1989) 28 Journal of Legal Pluralism and Unofficial Law 129.

  67. 67.

    Yubraj Sangroula, ‘Need for Paradigmatic Change in Jurisprudence: A Development Focused Approach in Definition, Application and Benefits of Law’ (2014) NJA Law Journal.

  68. 68.

    Tharoor, An Era of Darkness (n 46) 105–118.

  69. 69.

    John Rawls’s concept of justice, that opportunity and priority require a political equality as a primary good, is founded on a notion of the supremacy of civil and political rights.

  70. 70.

    Literature about the relationship between human rights and rule of law is still largely cryptic. Even the most fundamental human rights instruments such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights have failed to point out the relationship between the concept of human rights and rule of law. Rule of law, however, is essentially important for better enforcement of human rights. Human rights enforcement requires a sound state of political stability, economic development, and good governance, and they, in turn, require meticulous observance of the concept of rule of law. Sergio Vieira de Mello suggests that rule of law will be a ‘fruitful principle to guide us toward agreement and results’ and ‘a touchstone for us for spreading the culture of human rights’. See Sergio Vieira de Mello, Address to the Closing Meeting of the 59th Session of the Commission on Human Rights (25 April 2003). http://www.usp.br/svm/textos/t-dh-07.php. Accessed 16 November 2020.

  71. 71.

    NR Madhava Menon, ‘Designing a Simulation-Based Clinical Course’ (n 65) 181.1.

  72. 72.

    Randall Peerenboom, ‘Human Rights and Rule of Law: What Is the Relationship?’ (2005) 36 Georgetown Journal of International Law (University of California Los Angeles School of Law, Public Law & Legal Theory Research Paper Series, Research Paper No, 05-31).

  73. 73.

    Plato defined law as an ‘object’ and assumed that it contained universal nature. Philosophically, an object possesses universal character, for instance, ‘water has the same character’ in all parts of the world. This Platonic concept of law was ‘inherently erroneous’. However, the medieval, and even the modern, concepts of law in Europe had been immensely influenced by the Platonic notion of law. See Brian Bix, ‘Joseph Raz and Conceptual Analysis’ (2007) 6(2) American Philosophical Association Newsletter on Philosophy and Law. The hard positivism developed by John Austin in UK was implicitly founded on this notion. This theory was found useful by colonial rulers because it provided a basis for importation of their laws in the colonised territory. This concept promotes a theory in support of the transplantation of laws from the developed countries in developing countries. Joseph Raz and some other jurists, however, reject the Platonic notion of law. Earlier in the 19th century, Karl Von Savigny, by his theory of Volkgeist, rejected the theory of universality of law as an object. He said, the law is a product of the social consciousness of the given society. For more discourse in this regard, see Sangroula, Jurisprudence: The Philosophy of Law (n 64) 1–34.

  74. 74.

    A student of law like a student of medical science is expected to gain adequate professional skills and art during the time he or she has been a student. Law schools are supposed to generate habits and commitment among students to ‘behave like a lawyer’ from the very first day of their entry into law school. A law student has to represent his or her client’s interest without fault. Hence, developing professional competence in students must be the priority of law schools. Most of the unethical affairs lawyers are reportedly committing in the contemporary societies ‘is, as argued by David Laban, a professor of law from the USA, caused by failures of law schools to entrench a sense among law students to behave like a professional lawyer. Degeneration of professional ethics of lawyers is therefore a result of the problems in legal education. See RL Nelson and David M Trubek, ‘Introduction: New Problems and New Paradigms in Studies of the Legal Profession’ in RL Nelson and David M Trubek (eds), Lawyers’ Ideals/Lawyers’ Practice: Transformations in the American Legal Profession (Cornell University Press 1992) 1–5.

  75. 75.

    There are a myriad of definitions provided for professionalism. For instance, Jerome J Shestak, president of the American Bar Association in 1998, stated that ‘[a] professional lawyer is an expert in law pursuing a learned art in the service to clients and in the spirit of public service, and engaging in these pursuits as a part of a common calling to promote justice and public well’. American Bar Association, Foreword to Promoting Professionalism: ABA Programs, Plans and Strategies 1998. Professionalism has also been defined as ‘the set of norms, traditions, and practices that lawyers have constructed to establish and maintain their identities as professionals and their jurisdiction over legal work’. Nelson and Trubek, ‘Introduction: New Problems and New Paradigms’ (n 74). These definitions may not represent the contexts of South Asian countries.

  76. 76.

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  77. 77.

    A proverb that ‘a horse cannot make a compromise with fodder’ is a popularly used cliché in the classroom. Similarly, it is also popularly said that ‘a new entrant in the legal profession should work hard without expectation of remuneration of fees. An established lawyer has enough work and money both. A senior lawyer has only money but no need for hard work. These kinds of wrong messages passed onto students in the classrooms have gravely negative impacts on motivation of students towards socially professional responsibility of lawyers. In Nepal, senior or established lawyers are neither interested in pro bono service nor do they appear in lower-level courts for arguments. Hence, in the majority of trial-level cases, the junior lawyers appear with a great risk of miscarriage of justice.

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Sangroula, Y. Social justice jurisprudence of clinical education programme: A paradigm shift from legal education to justice education. Jindal Global Law Review (2021). https://doi.org/10.1007/s41020-020-00131-4

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Keywords

  • Clinical legal education
  • Social justice jurisprudence
  • Field-based education
  • South Asia
  • KSL experience