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– by Ved Kumari
At the conceptual level, the term “justice” has many shades of meaning. As Upendra Baxi pointed out, the term may refer to:
– justice according to law (procedural justice),
– justice as virtue (of individual / conduct),
– justice as virtue of political arrangements (respect for human dignity and rights),
– justice as an ethic of restitution (or restitutive justice) for intentional harms caused by one set of actors to others,
– justice as retributive (in the main, as penal justice directed to control egregious violations of human person, private property, and public order; allowing room for social rehabilitation and self-
reform of the offender),
– justice as rights/power to own the means of production,
– justice as appropriate distribution of normative / basic / public / primary public goods like dignity,
– justice as equal distribution of freedoms, recognition of equal worth and concern for all human beings, and
– justice as appropriate distribution of material goods enabling all human beings access to resources to live more than sub-human lives and endowment of opportunities for free choice of life projects.
Legal education must make young people aware of the many dimensions of justice. Law is a powerful tool for enforcing rights for those who can wield it. However, it may equally become a tool of oppression in the hands of those who have no concern for the poor and deprived. Hence, the impact of law depends on whether it is used to promote justice for all or to serve the privileged few.
Law schools can make the difference. Their students go on to become judges, lawyers, politicians, bureaucrats et cetera. So it is the schools’ duty to prepare them for their professional life.
Today, many law schools across the world identify “justice education” with legal-aid clinics run by faculty and students. Such legal-aid clinics take up the cases of the poor and deprived. If teachers bring the experiences from clinical work to the classrooms, the approach has a wider impact than only on the students involved in the clinic itself.
Tatiana Zykina of Arkhangelsk State Technical University in Russia is an example. She challenges the myth of equality in labour law by discussing cases dealt with in the University’s labour-law clinic with students. She highlights the fear of dismissal, due to which many employees are afraid to sue their employers. Using real cases, she is able to point out that women are paid lower wages than men, and that, in professions which are preferred by women like that of doctors and teachers, wages are low.
However, the legal-aid-clinic approach is expensive, as it requires intensive and individualised supervision of students’ work to ensure quality. Therefore, personal participation is typically only possible for a small number of students. Most law schools, however, cannot afford to run a legal-aid clinic at all.
The majority of law students are therefore not exposed to justice issues at university. Mainstream law teaching focuses on doctrines, theories and the black letter law, with little regard for how the law impacts on poor people. This state of affairs is not acceptable if legal education is meant to result in producing not only efficient lawyers, but socially responsible lawyers, as well. So alternatives to the legal-aid clinic need to be found.
Class-room projects can help to provide lawyers who are dealing with real cases with solid arguments. Steven Schwinn of the John Marshall Law School in Chicago assigned constitutional-law students to write portions of an amicus brief in a same-sex marriage case in the Maryland Court of Appeals. He divided students into groups to assess various legal dimensions of the matter and assigned each to write a brief. He then compiled their work and used it for the faculty’s amicus brief in support of the civil-rights advocates who were representing the case in Maryland. Along with a more traditional exam, the brief contributed to his students’ final grades.
Most law schools have a foundation course to introduce students to the basics of a range of subjects. They include jurisprudence, criminal law, administrative law, family law, constitutional law, commercial law, civil and criminal procedures et cetera. Arkady Gutnikov of the St. Petersburg Institute of Law uses the course “Introduction into the law” to highlight how different people use the same terms for different things, and how that contributes to disadvantaged people’s difficulties in accessing courts. He shows that law and law-related matters may serve both empowerment and disempowerment. His teaching methods include role play, case studies and social projects, among others.
Discrimination on the basis of poverty, gender, caste, race et cetera may be brought out either through special courses or may become part of a regular course. Amita Dhanda of the NALSAR University of Law in Hyderabad, India, teaches a compulsory undergraduate course on law and poverty. It highlights the impact of different developmental choices on alleviating or exacerbating poverty. It also shows how the law mediates in the making of the developmental choices.
I have myself included gender angles when teaching criminal law and family law. I used non-legal materials to prove that the claim of equality and improved status of women in the Indian scenario is exaggerated. In criminal law, I included critical literature in the course materials focussing on gender discrimination in the conceptualisation of legal provisions, in the implementation of the law and in the impact of law.
I met with greater resistance from my co-teachers when raising gender issues in the context of family law. So I formulated key questions concerning the relevant topics (such as inheritance, divorce, guardianship of children and others) and incorporated them in the course materials. I thus made sure students were exposed to the issues, even though some colleagues were reluctant to deal with them.
It would be wrong to raise justice matters only in a few specific courses. Rather, justice should be accepted as an essential goal for every single law course. It is easier, of course, to find critical literature for courses that deal with topics such as family law, criminal law, constitutional law, or others where the justice angle is fairly obvious. Nonetheless, justice is also relevant in fields like contract or administrative law, the interpretation of statutes et cetera. In areas like that, however, teachers can point out justice issues by focussing on specific questions:
– Are the poor and the rich truly equal before the law?
– Do the uneducated enjoy the same legal opportunities as people with university degrees?
– What difference does it make whether a woman or a man is going to court?
– Does race matter?
– What about ethnic, religious or linguistic affiliations?
– Are there special provisions for children, disabled people, the aged or other disadvantaged people?
Discussing such questions in class will fast reveal that there is legal discrimination on the basis of sex, class, caste, race, sexual orientation, region, religion and economic status. Such discrimination may occur at the normative level, at the conceptual level as well as at the implementation level. And once that is understood, new questions arise:
– Who was interested in getting a specific legislation passed?
– Whose behaviour does any given legislation affect?
– What effect was intended?
– And what is the actual effect?
In order to understand what laws are really about, law students must have an idea of how legislators work and why impacts of reforms often differ from what was officially aspired.
Various co-curricular activities in law schools also provide occasions for focusing on issues of justice. Most law schools hold moot court competitions where students’ skills of lawyering are evaluated. Such moot courts can easily be framed in a manner that forces participants to consider justice issues in the operation of law, rather than only discussing technical questions of law.
All summed up, justice issues should not only be a feature of law teaching, but also of exams. All too often, only students’ memory is tested. Skills of analysis and application, however, are at least of equal importance, so they need to be tested too. The questions must ensure sensitisation without indoctrination and should evaluate students’ knowledge of black letter law along with their understanding of its social impact.
There are many ways to incorporate justice issues in law teaching. Law schools must sensitise their students, for otherwise they will mistake formally correct application of the law for justice. Too often, law schools do not point out the difference between “justice” in terms of procedural correctness and “justice” in a more comprehensive socio-economic sense. In any society, however, respect for the law will depend on the degree to which people feel that justice is being done in the comprehensive sense.