Skip to main content

Advertisement

SpringerLink
Log in

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

  • Article
  • Published:
Jindal Global Law Review Aims and scope Submit manuscript

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.

This is a preview of subscription content, log in via an institution to check access.

Access this article

Log in via an institution

Price excludes VAT (USA)
Tax calculation will be finalised during checkout.

Instant access to the full article PDF.

Institutional subscriptions

Similar content being viewed by others

Notes

  1. Nick Robinson, ‘Declining Dominance: Lawyers in the U.S. Congress’ (2015) 2(2) The Practice (Special Issue: Lawyers in Politics). https://thepractice.law.harvard.edu/article/declining-dominance/. Accessed 6 July 2020.

  2. Ibid.

  3. Ana Swanson, ‘How the Most Disliked — and Elected — Profession Is Disappearing from Politics’ (Washington Post, 19 January 2016).

  4. Pew Research Center, ‘Public Esteem for Military Still High’ (Religion and Public Life, Pew Research Center, 11 July 2013). https://www.pewforum.org/2013/07/11/public-esteem-for-military-still-high/. Accessed 5 July 2020.

  5. Ibid.

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

  7. Russell G Pearce, ‘Teaching Legal Ethics Seriously’ (1997–1998) 29 Loyola University Chicago Law Journal 719.

  8. Gray A Hengstler, ‘Public Perception of Lawyers: ABA Poll’ (1993) ABA Journal 60, 62.

  9. Pearce, ‘Teaching Legal Ethics Seriously’ (n 7).

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

  11. ‘Indian Lawyers and the State’ (2018) 4(2) The Practice (Special Issue: The Indian Legal Profession). https://thepractice.law.harvard.edu/article/indian-lawyers-state/. Accessed 6 July 2020.

  12. http://nepaldevelopment.pbworks.com/w/page/50493532/Biography%20-%20BP%20Koirala. Accessed 22 December 2020; Viśveśvara Prasāda Koirālā, Atmabrittanta: Late Life Recollections, (Himal Books 2001).

  13. The Indian Supreme Court in Ex-Capt. Harish Uppal v Union of India and Another (2003) 2 SCC 45 declared that lawyers’ strikes were illegal. However, events of such strikes are not unknown. In all South Asian countries, these practices are commonly reported. See Kirti Ranjan, ‘Strikes by Lawyers in India’, Legal Service in India. http://www.legalserviceindia.com/legal/article-582-strikes-by-advocates-in-india.html. Accessed 5 July 2020.

  14. Eliot Freidson, Professional Dominance: The Social Structure of Medical Care (Routledge 2017).

  15. Phillip G Kissam, ‘The Decline of Law School Professionalism’ (196) 134(2) University of Pennsylvania Law Review 251–334.

  16. Ibid. 256.

  17. Jay J Choi and B Hyun Choo, ‘The Buddha’s Empirically Testable “Ten Criteria” Challenges the Authenticity of Truth Claims: A Critical Review and Its Potential Applicability to Debunking the Various Post-Truths’ (2019) 10 Religions 645.

  18. Chi-Ming Lam, ‘Confucianism Rationalism’ (2014) 46(13) Educational Philosophy and Theory (Chinese Special Issue) 1450–1461.

  19. Catherine Nixy, The Darkening Age: The Christian Destruction of the Classical World (Mariner Books 2017).

  20. According to Nyaya philosophy, no inference can be drawn without having observed an objective fact. Hence, knowledge without empirical experience of facts or problems is impossible. See Yubaraj Sangroula, Theories of Logic: With Emphasis on Oriental Perspective (1st edn, Sahayatra Publication 2017) 19–21.

  21. According to Oxfam International’s report in 2020, 2,153 billionaires have more wealth than 4.6 billion people, that represents 60 per cent of the global human population. See Oxfam International, ‘World’s Billionaires Have More Wealth Than 4.6 Billion People’ (20 January 2020). https://www.oxfam.org/en/press-releases/worlds-billionaires-have-more-wealth-46-billion-people. Accessed 8 July 2020.

  22. NR Ravindra Deyshappriya, ‘Examining Poverty Trends in South Asian Countries: Where Is Sri Lanka among Its South Asian Counterparts?’ (London School of Economics South Asia Centre, 31 July 2018). https://blogs.lse.ac.uk/southasia/2018/07/31/examining-poverty-trends-in-south-asian-countries-where-is-sri-lanka-among-its-south-asian-counterparts. Accessed 8 July 2020.

  23. James E Moliterno, ‘The Lawyer as Catalyst of Social Change’ (2009) 77(4) Fordham Law Review 1559–1590.

  24. Ibid.

  25. For the relation between liberal democracy and social justice, see David Miller, ‘Democracy and Social Justice’ (1978) 8(1) British Journal of Political Science 1–19.

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

  27. SAAPE, ‘Growing Inequality in South Asia: South Asian Inequality Report, 2019’. https://www.globaltaxjustice.org/sites/default/files/South%20Asia%20Inequality%20Report%202019.pdf. Accessed 8 July 2020.

  28. For lawyers’ role in defending the deprived and changes in society, see Richard L Abel and Philip SC Lewis (eds), Lawyers in Society: An Overview (University of California Press 1995).

  29. Paul Raffield and Gary Watt (eds), Shakespeare and the Law (Oxford Hart Publishing 2008).

  30. Frank S Bloch, ‘Access to Justice and the Global Clinical Movement’ (2008) 28 Washington University Journal of Law & Policy111.

  31. GAJE Mission Statement, http://gaje.org. Accessed 28 September 2020.

  32. GAJE Constitution, http://gaje.org/Constitution.htm. Accessed 28 September 2020.

  33. Bloch, ‘Access to Justice and the Global Clinical Movement’ (n 30).

  34. Richard J Wilson, ‘The New Legal Education in North and South America’ (1989) 25 Stanford Journal of International Law 375, 384; Richard Wilson, ‘Western Europe: Last Holdout in the Worldwide Acceptance of Clinical Legal Education’ (2009) 10(6–7) German Law Journal 823–846.

  35. ‘Adopting and Adapting: Clinical Legal Education and Access to Justice in China’ (2007) 120 Harvard Law Review 2134, 2140.

  36. David J McQuoid-Mason, ‘The Delivery of Civil Legal Aid Services in South Africa’ (2000) 24 Fordham International Law Journal S111, S123–S125, S129–S132.

  37. Deborah L Rhode, ‘Access to Justice: An Agenda for Legal Education and Research’ (2013) 62(4) Journal of Legal Education 531.

  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. ‘Basic Principles on the Role of Lawyers’ (Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 1990); Brian K Landsberg, ‘Promoting Social Justice Values and Reflective Legal Practice in Chinese Law Schools’ (2011) 24 Pacific McGeorge Global Business & Development Law Journal 107. https://pdfs.semanticscholar.org/ddaf/df718eef49b2b3a4443019b8789179f08911.pdf. Accessed 8 July 2020.

  40. Yubaraj Sangroula, ‘Third Memorial Lecture Dedicated to A.K. Khan in Bangladesh’, Lokantar (Kathmandu, 2019). https://drive.google.com/file/d/1Ui3BihX6urCoYN9LlHzQh52P89w3mmDn/view. Accessed 5 July 2020.

  41. Miller, ‘Democracy and Social Justice’ (n 25).

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

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

  47. Ibid. 111.

  48. Ibid. 106.

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

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

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

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

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

  57. ‘The Role of Law Schools and Law School Leadership in a Changing World’ (IALS Conference, 2009). http://www.ialsnet.org/the-role-of-law-schools-and-law-school-leadership-in-a-changing-world. Accessed 6 July 2020.

  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. Ibid.

  60. Ibid.

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

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

  63. Ibid.

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

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

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

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

  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. 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. 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. 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. ‘… In the Spirit of Public Service’: A Blueprint for the Rekindling of Lawyer Professionalism, Report of the Commission on Professionalism to the Board of Governors and the House Delegates of the American Bar Association (August 1986).

  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.

  78. Ishtiaq Jamil and Steinar Askiviz, ‘Citizens Trust in Public and Political Institutions in Bangladesh and Nepal’ (May 2015). http://researchgate.net/publication/283748795. Accessed 9 July 2020.

  79. Yubraj Sangroula, ‘Legal Ethics: A Critical Analysis of the Understanding of Legal Education and Professionalism in Developing Countries, with Special References to South Asian Scenario’. http://yubarajsangroula.com.np/assets/uploads/7ec9a-legal-ethics-an-critical-analysis-of-decline-in-legal-professionalism-1-.pdf. Accessed 30 October 2020.

  80. Clinical Law Department, Kathmandu School of Law. https://ksl.edu.np/center/index/clinical-law-department. Accessed 30 October 2020.

  81. Sangroula, ‘Holistic Approach to Delivery of Legal Aid Services’ (n 45).

  82. ‘Nepal Quake Survivors’ Identity Crisis’ (Relief Web, 21 May 2015). https://reliefweb.int/report/nepal/nepal-quake-survivors-identity-crisis. Accessed 31 October 2020.

  83. Gyanu Gautam, ‘Understanding the Quintessence of Clinical Legal Education: Nepalese Experience’ (2017) 5 Kathmandu School of Law Review. http://kslreview.org/index.php/kslr/article/view/163. Accessed 29 October 2020.

  84. Kathmandu School of Law, ‘18 Years: Legacy of Shaping Students Career in the Country’. https://ksl.edu.np/assets/uploads/70c84-kslbrief.pdf. Accessed 31 October 2020.

  85. Gautam, ‘Understanding the Quintessence of Clinical Legal Education’ (n 83).

  86. Kathmandu School of Law, Traffic Volunteering Program. https://ksl.edu.np/center/event/traffic-volunteering-program. Accessed 31 October 2020.

  87. Kathmandu School of Law, Human Rights and Criminal Justice Clinic. https://ksl.edu.np/center/index/human-rights-and-criminal-justice-clinic. Accessed 31 October 2020.

  88. Sangroula, ‘Holistic Approach to Delivery of Legal Aid Services’ (n 45).

  89. ‘Kavre: Inter Law College Football Tournament Begins’ (Games Nepal, 22 December 2017). https://goalnepal.com/news/detail/578. Accessed 31 October 2020.

  90. Yubaraj Sangroula, ‘Distinctive Curriculum: Considering Teaching Law and Justice from Contextual Innovation and Students and Consumers of Justice Oriented Pedagogy’. http://yubarajsangroula.com.np/assets/uploads/decb8-teaching-law-and-justice.pdf. Accessed 30 October 2020.

  91. Kathmandu School of Law, Prospectus, 2020. http://ksl.edu.np/assets/uploads/KSL%20Prospectus%202020%20-%20Finalized.pdf. Accessed 31 October 2020.

  92. Bruce A Lasky, ‘Baseline Assessment for the Development and Implementation of a Clinical Legal Education Programme in the Maldives’ (2016). https://fliphtml5.com/xwvij/bahn/basic. Accessed 15 November 2020.

  93. Myanmar CLE Program Consortium, The Global Path and Future of Clinical Legal Education in Myanmar (2016). http://online.fliphtml5.com/xwvij/wgdv/#p=7. Accessed 25 September 2020.

  94. Bruce A Lasky, ‘Assessment and Strengthening of Legal Awareness Raising Initiatives with Youth — Bhutan National Legal Institute (BNLI)’. http://online.fliphtml5.com/xwvij/dfyu/#p=35. Accessed 26 September 2020.

  95. Bruce A. Lasky and Norbani Mohamed Nazeri, ‘The Development and Expansion of University-Based Community/Clinical Legal Education Programs in Malaysia: Means, Methods, Strategies’ (2014) 15(2011) International Journal of Clinical Legal Education 59.

  96. ‘Clinical Legal Education: Concept and Concern’. https://sg.inflibnet.ac.in/bitstream/10603/148922/6/06_chapter%204.pdf. Accessed 21 September 2020; Priyanshi Sarin, ‘Clinical Legal Education: Tracing the Growth’ (2020) 1(1) La Senatus Scriptors.

Author information

Authors and Affiliations

  1. Kathmandu School of Law, Bhaktapur, Nepal

    Yubaraj Sangroula

Authors
  1. Yubaraj Sangroula
    View author publications

    You can also search for this author in PubMed Google Scholar

Corresponding author

Correspondence to Yubaraj Sangroula.

Additional information

Publisher's Note

Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.

Rights and permissions

Reprints and permissions

About this article

Check for updates. Verify currency and authenticity via CrossMark

Cite this article

Sangroula, Y. Social justice jurisprudence of clinical education programme: A paradigm shift from legal education to justice education. Jindal Global Law Review 11, 339–364 (2020). https://doi.org/10.1007/s41020-020-00131-4

Download citation

  • Accepted:

  • Published:

  • Issue Date:

  • DOI: https://doi.org/10.1007/s41020-020-00131-4

Keywords

Search

Navigation