Public legal education began in Canada during the late 1960s at a time when the roles and performance of many of our social institutions were being questioned. Initially the very idea of public legal education was considered radical. Indeed dangerous. After all, a little knowledge is a dangerous thing. Dangerous to the individual who might make decisions that would have catastrophic consequences. Dangerous to the legal profession because PLE threatened the profession’s monopoly over the law and legal processes and the power that went with that monopoly.
In the ensuing years, public legal education has proven to be not only an empty threat to the legal profession but a useful to it. PLE facilitates better access to lawyers and helps them management of their clients’ expectations better.
- So what happened? Did the original radical project get co-opted by the legal establishment? If so, why? How?
- What has changed in society and PLE since the sixties and what has stayed the same?
- Does PLE still have a radical mission?
While there is little work on the theoretical foundations of PLE, what exploration there has been suggests that this is a fruitful field for further investigation.
Influence of legal positivism
When public legal education was first taking form, legal positivism was the predominant understanding of law. According to H.L.A. Hart, modern legal systems shared three characteristics:
- law and morality are considered separate concepts;
- there are two types of legal rules: primary rules (those we normally think of as laws) and secondary rules (the ways laws are made, recognized, changed, and administered); and
- a body of experts is trained in the secondary laws
This understanding of law accounts for some of the limitations imposed on PLE in its early years. Quips like “a little knowledge is a dangerous thing” and “would you do your own brain surgery?” were frequently hurled at PLE advocates. And so we reassured critics, sometimes quite explicitly, that we weren’t planning to turn people into their own lawyers but rather wanted to help them avoid unnecessary legal problems where possible and direct them to legal services on a timely basis if they needed help.
Over time, we strafed at the limitations of legal positivism, and began carrying out activities that help non-lawyers acquire knowledge and skills normally restricted to those who have completed formal legal training. We also engage with communities to critique the law, advocate for reforms, and become active citizens. As we come to know sectors of the public that turn to the law for help and those that don’t, we act as intermediaries between them and the formal justice system.
Times have certainly changed. Today, PLE organizations sometimes have to justify their funding on the basis of the help they provide self-represented litigants in navigating through the legal system. Our assertion that our legal system promises only procedural justice, not substantive justice does not sit well in a society in which the law and its machinations work to exacerbate injustice.