So why should we care about Legal Theory…
When I was in law school in the early 1970s we were required to take a ‘paper course’. Since most courses were based on exams and usually final exams that counted for the entire course mark, we had only a few optional courses for meeting this requirement. I took Jurisprudence. I remember almost nothing from that course except to hate legal theory. Like most of us, I found it dry, esoteric, and irrelevant to what I thought I would be doing as a lawyer. So why am I now, as a public legal educator, preoccupied with it?
I came to legal theory demoralized by the lack of impact my public legal education work seemed to be having in advancing the cause of social justice, which is what I took to be the purpose of public legal education. I was enticed by the work being done by critical legal theorists which seemed to accuse law of perpetuating thestatus quo and offered some techniques for deconstructing laws to expose their role in upholding particular aspects of social privilege. But as I worked through both the acuteness of their critique and its limitations in providing direction for social action, I came to see that Crits were exposing the problems with the content of particular laws or branches of law but not the concept of law itself.
As I point out in my thesis, The Radical Promise of Public Legal Education, it is the very concept of law that interferes with the PLE social justice project. Without really being aware of it, we, in PLE, have internalized a positivist notion of law that contains within it two features that serve as barriers to using law to address issues of social justice: the separation of law and morality and the technical nature of legal knowledge. In our early rhetoric we proposed to “demystify” the law and attack the monopoly lawyers have on legal knowledge. But we did so without understanding how their possession of that knowledge had been legitimized. Breaking their grip on it, though, has to mean more than letting the public have a few bits of knowledge about particular laws as most PLE seems to do. We need to change our understanding of what constitutes legal knowledge in a way that exposes the way law legitimizes and reinforces power and privilege and that makes the public’s interests and experiences with law more central.
Law doesn’t exist just in law books. It’s not just a set of rules backed up by state sanction. It also exists in the lives of people as they experience law or the lack of it in their daily lives whether here in Canada or elsewhere. It exists in the practices of those who are involved in making, administering, and reforming laws and in their attitudes toward their responsibilities. And it exists in the efforts of people to avoid and evade the law. It exists in law offices, police stations, in gaols, on the streets, in homes and schools, and community halls. And to be trite, it exists in the hearts and minds of all of us. Many of these expressions of law go unnoticed and unremarked. But they are as real as any black letter law and sometimes more pervasive and powerful. Law isn’t just a bulwark against tyranny, it victimizes the very people it is meant to protect. Law doesn’t just have political content; its an instrument of politics.
As for the separation between law and morality, such claims keep us from examining the role morality actually plays in the creation, interpretation, administration and reform of specific laws. It obscures the role of law itself as an agent of social policy and how it is complicit in maintaining an oppressive social order. Our acceptance of a positivist understanding of law carries with it the assumption that we have the best system of justice possible and impedes our ability to even ask what kind of justice we want.
In PLE terms, the acceptance of a positivist conception of law puts these sorts of discussions outside the proper function of PLE work. But law is a mirror that reflects who we are as a society. We need to take a hard look at ourselves in that mirror.
If PLE is to play a role in advancing social justice, we need to examine the pimples and warts on the face of our legal system. They should not be assumed to be either inevitable nor benign. We need to draw out the underlying assumptions of the positive concept of law and expose them to public scrutiny. We need to look at the benefits and disadvantages of this way of viewing our legal enterprise. Who wins and who loses? Do we like what we see? What might we learn by examining other concepts of law? What might we discover by looking at other concepts of justice?
So, if PLE is to address issues of social justice, it seems to me that public legal educators must take their legal theory seriously. We must explore the wealth of meanings of the concept of law, we must locate law in its social context, and we must restore the link between law and justice. This is not a project for a legal elite but one in which all Canadians must engage; one in which the legal knowledge and experience of everyone is valued, wisdom is respected, and a robust sense of social justice is nurtured.