A Review of Chris Ashford and Paul McKeown (eds.), Social Justice and Legal Education. Cambridge Scholars Publishing. 2018. 325pp., £71.00 (HB). ISBN: 978-1-5275-0646-6
If advice and representation are still considered to be core activities conducted by members of the legal profession in England and Wales, the university law clinic, which forms the main focus of the chapters in this collection, will constitute the full span of the legal professional life of the vast majority of individuals who opt to study law at undergraduate level.
It is long past the time for dispensing with the idea that involvement in the law clinic will be a law student’s “first time of seeing law in practice and how it relates to people’s lives” (Cody and Gibson, 2018: 39). Undergraduate law students have become used to thinking of the spaces in which conventional legal practice occurs as “hard...to enter” (Drake et al, 2018: 78); frequently deploying the “images” of “walls, traps and closed doors” to express the many barriers to access (Drake et al:, 2018: 78). Without the existence of the “Student Law Office” (Campbell, 2018: 170) or of “teaching law firms” (Prince, 2018: 197), and other forms in which the university’s pro bono services appear, the vast majority of undergraduate law students will never have the opportunity to provide advice and/or representation to the public (see McKeown, 2018: 89, 90 & 92). Of those who (during their three to four years spent at university) will simultaneously inhabit the role of student and legal professional, the 33% of “young full-time first degree entrants in the UK...from a lower socio-economic class” (McKeown, 2018: 102) will be disproportionately represented.
The “blurring of the divide between legal services and other services” (Prince: 2018: 185), which the Legal Services Act 2007 (LSA) merely endorsed, is, arguably, most in evidence in the university law school, and thus has consequences for its future. The legal services market is one which seeks to keep in “reserve” the powerful weapons of litigation for privileged students and resource rich individuals, groups or companies. Without an urgent reappraisal of their objectives, university law schools (though their law clinics) will serve the least laudable of the goals of the legal services market by managing down the career expectations of less privileged students who, despite all forces working to depress their expectations, aspire “to be immersed in the costume and drama of the law” (Drake et al, 2018: 77), and by managing down the expectations of a vulnerable public about what the law can deliver in terms of social justice. It will achieve this somewhat cynical management of hope and ambition by delivering to these students and public a “hands-on”, “experiential” (Grimes, 2018: 253) education and training about the limitations of law and the availability of law’s often less than satisfactory alternatives. Needless to say, if it accepts the fate which the legal services regulators appear to have written for it, the university law school will fail to transcend the university’s deep alignment to the “power structures and elite groupings of the societies of which the university is a part” (Cody and Gibson, 2018: 32).
The question which underpins this review of Social Justice and Legal Education is whether there is a way of re-conceiving the university law school’s role in legal services which will ensure that it remains at the forefront of efforts to engineer “access to justice which was impartial, not dependent on political support, affordable and physically accessible” (Farran, 2018: 204). Of the various ways in which this inspiring collection of essays carves out a distinctive and progressive future for the university law school, I want to focus on just two. First, I will draw on the collection to argue that the university law school is best placed to maintain vigilance over the number and type of “alternative business structures” able to offer legal services to individuals who seek assistance with matters affecting (among other things) “home, custody of children, (and) vital sickness benefits” (Drake et al, 2018: 68). Second, the contributions reveal how the university law school can sustain itself by constantly interrogating attempts to close the categories of those potential beneficiaries of its law clinics and other forms of pro bono legal services. Such will entail (above all) overcoming the current separation of “students” and “public” in discussions about the best use of university law school resources.
My particular contribution to debate about the future of the university law school can be expressed in the following terms: proper vigilance and deep interrogation are both predicated on the university law school ceasing to maintain its innocence in relation to the much remarked upon “justice gap.” Only through acceptance of its role in bringing about the current dispensation of legal services can the university law school hold to its primary mission of providing all of its constituent members-staff, students, public-with the intellectual and practical resources with which to contemplate much more than how “the shifting of power from those who have it to those who do not” (Ashford and McKeown, 2018: 5) can be attained, but, more expansively, to “think about how things could be different, the impact different structures and institutions might have and how those differences might play out in our lives” (Guth, 2018: 306).
In response to the question “What do students, academia and the tax paying public expect or deserve from the university law school”, which Cody and Gibson pose (2018: 25), we might answer that it should see itself as first and foremost responsible for keeping vigilance over the number and type of alternative providers able to offer services to “vulnerable people with complex legal problems” (Yeatman, 2018: 133). Such a responsibility might be said to arise from the fact that university law school clinics have always operated de facto as alternative business structures – a fact which the formal grant of ABS licenses to Nottingham Trent and the University of Law (Prince: 2018, 197) might obscure.
Thus, long before “alternative business structures” became a common term of reference in debates about the nature and scope of the UK legal services market, university law schools had identified the need for “cheap, short-term legal advice from new and unconventional sources” (Prince, 2018: 186). The University law school clinic was just such an “unconventional source” which would offer to the public “legal information programmes” (Farran, 2018: 216), and the talent of individuals who were capable of producing sophisticated research in relation to emergent legal categories, such as “sexuality and law” (Robson, 2018: 282) -an area of law which has so significantly shaped the lives of many who seek the services of the university law clinic, not least of all being the asylum-seeker. Those hybrid professionals and students who constitute the law clinic’s workforce are also “...well placed to conduct ….comparative research across jurisdictions” (Kinghan, 2018: 17), which is so vital for the success of strategic litigation. In addition, they are better trained to provide help to those who require the services of “advocates...in non-court settings” (Kinghan, 2018: 14). Above all, cases in relation to which a court or tribunal decision is likely to produce wide-ranging consequences would be managed by individuals far removed from the “professional norms and practice context which discourages...lawyers from seeking law reform” (McKeown, 2018: 98). In short, Social Justice and Legal Education reminds us that from its outset the university law clinic has sought to challenge the way we “use and view lawyers” (Prince, 2018: 186). Not least of the value of this internationally oriented collection of essays (Ashford and McKeown, 2018: 1) is the very rich history of the clinical legal education movement which it offers.
According to Tomoszek “there are reports of clinical legal methodology being used in Denmark, Germany, Norway, or Russia at the end of the nineteenth or the beginning of the twentieth century (2018: 218). Grimes provides more evidence of the fact that the university law clinic has become a global phenomenon through his examination of the workings of law clinics in Afghanistan (2018: 264-266), Georgia (2018: 266-268) and India (2018: 268-270). Giddings draws on the long history of clinical legal education in Australia to explore a feature common to most – that few academics who act as supervisors in law clinics receive “training for their student supervision role” (2018: 58). Osinibi and Farran explore the development of clinical legal education, and its supporting networks, in Nigeria (2018: 237-252) and in the Pacific island country of Vanuatu, respectively (2018: 201-217). In the island of Vanuatu, the greatest challenges faced by ordinary individuals is access to information over land rights, and affordable advice in connection with land disputes. More generally, Farran’s chapter highlights the fact that in “developing economies often “social justice means...access to legal information in order to address the imbalances of power experienced in resource commoditization” (2018, 206).
Returning to the UK scene, Murray’s chapter demonstrates that university law schools' alternative legal service is expanding at an impressive rate.. She states: “whereas the mainstream legal service providers have reduced capability, conversely, LawWorks, the UK’s pro bono charity, launched its 200th legal advice clinic in 2015. In fact, in England and Wales, at least 70% of law Schools are participating in pro bono or clinical work” (2018: 296). The vibrant UK picture is mirrored elsewhere in Europe. For example. “in the academic year 2013/2014, the legal clinics in Poland provided legal advice in more than 11,000 cases, with more than 2000 students involved, supervised by over 280 supervisors” (Tomoszek, 2018: 224). Whilst in UK universities Innocence Projects are in decline, partly as a result of the demise of Innocence Network UK in 2014, still the UK had boasted “36 innocence projects, 35 based at universities” (Greenwood, 2018: 142) many of whom will continue to thrive as less ideologically driven “clinics which investigate miscarriages of justice” (Greenwood, 2018: 146).
Whether or not it was the intention of the various regulators of legal services for the university law school to effectively “colonise” the space wherein “alternative business structures” offer advice to the “vulnerable” public is unclear. However, I would argue that it is important for the university to take command over this space. The university law school is best placed to oversee the developing arena of support and, thereby, to ensure that sensitive cases, especially those which touch on the relation between the individual and the various organs of state, receive the benefit of the “embedded integration of procedure, protocol, research, problem solving, communication, collegiate co-operation and peer review of decision making” (Drake et al, 2018: 73) which the best of the university law school clinics provide.
As many of the authors of this volume observe, for too long debate over clinical legal education has been unhealthily caught in a dichotomy about whether it is designed to serve students’ educational needs or the needs of the public, with the university’s “scholarly agendas” (Robson, 2018: 283) appearing to take centre stage - fuelled, perhaps, by the suspicion that students participate in clinical activities for “self-interested than for benevolent reasons” (Malkani and Thomas, 2018: 120). Murray and Yeatman typify the way the arguments are presented, with one seeing “social justice goals subverted to the primacy of professional skills development and employability agendas” (Murray, 2018: 286) and the other cautioning against losing “sight of the primary purpose of the student law centre as a centre for legal education and...to regard it instead as a service primarily for the public with an educational benefit tagged on...” (Yeatman, 2018: 133). For Grimes, there is an evident “tension in clinical work between serving the needs of the client and the student” (2018: 260). A way beyond this dichotomy is to re-centre the university law school as an entire entity, and not “build our hopes on the clinic” (Guth, 2018: 307). The two most enduring public functions of the university are directed to students – its degree award function – and toward the broader public – its role in facilitating public debate. The distinction between student and public becomes less meaningful with the re-grounding/foregrounding of the university’s formal public duties. Thus, when “Faculty dedicate resources to supervising an in-house community legal centre” (Cody and Gibson, 2018: 39), it does so in a direct an unmediated contribution to the legal system. It is no doubt true that the gesture “communicates to students that this is a responsibility, an obligation on the Law Faculty” (Cody and Gibson, 2018: 39) but its value is not coextensive with the students’ appreciation, nor with the impact the financial contribution might make to the legal position of any one identifiable member of the public.
If the idea that the focus of the university law school should be on fulfilling its public functions has appeal, then Osinibi’s proposition that, wherever it is located, the university should set its goal as “training lawyers for service to society in the public sector in particular” (Osinibi, 2018: 239) should be one to which university law schools adhere when designing their clinical programmes. However, who or what falls within the scope of the “public sector” is by no means self-evident. Whilst Osinibi sees no contradiction between the focus of the clinic on the public sector and the suggestion that universities “adopt...the economic development clinic which...will...help to improve the economic conditions of law income communities through business development” (Osinibi, 2018: 251), in most university law schools the full potential of the clinic is compromised, according to Campbell, because of a “one dimensional idea of poverty, presuming that enterprising individuals and groups cannot fall within the category of vulnerable” (2018: 179).
Questions over whether clinics should offer commercial advice and means-test its clients have proved controversial. Although acknowledging that “commercial legal work raises important social justice concerns”, Giddings felt that commercial legal questions were more resistant to “critique” than are those legal questions usually brought within the frame of law clinic services, and, as such, required “clear support and guidance from...supervisors” (Giddings, 2018: 45). For Campbell, university law schools who frown upon the idea that commercial and business start-up advice might form an appreciable part of their services to the public are not sufficiently attentive to the vital “role that law students can play in being architects of enterprise” (2018: 169). Campbell notes the “steady rise in self-employment” (2018: 179) partly as a result of the economic downturn in the UK, and regrets that “at a time of great entrepreneurship, free advice, guidance and assistance was taken away” (2018: 180).
I will conclude this part with the observation that the authors of the collection of essays which make up Social Justice and Legal Education provide role-models for negotiating the difficult question of who and what falls within the public sector which the university law school seeks to embrace. Although the authors exhibit different stances and sensibilities, each is alive to the value of the other’s view and all reveal an understanding that the worst service that could be offered to law schools would be to advance a set of definitive positions.
University Law Schools often see themselves as working to “more adequately help fill the justice gap left by government cuts” (Malkani and Thomas, 2018: 111). However, it is arguable that what they are doing when they facilitate students’ “volunteering over...different projects” (Malkani and Thomas, 2018: 113), geared at providing advice to the public, is making a practical intervention in the legal services market in order to address a gap produced not merely by forces external to them but by their own intellectual interventions. Guth neatly sums up the core objectives of critical legal studies and socio-legal studies’ approaches to legal education as ones which “encourage students to think about the limitations of law, the problems that law cannot solve and the inequity that law perpetuates” (2018: 310). As I have argued elsewhere, the embedding of legal systems cannot be separated from the theories about law and justice which prevail at any given time – although, of course, no precise causal relation can be established between the two (forthcoming, 2018).. Socio-legal/critical legal studies have fashioned the dominant theoretical frames of UK law schools since the latter part of the 20th Century. These theoretical frames have problematised the individual’s pursuit of legal ends in ways which earlier natural or positive theories of law did not. Arguably, neither socio-legal studies nor critical legal studies sit uncomfortably with one of the core ideas underpinning the current legal services market, which is expressed through the LSA’s statement of regulatory objectives. LSA envisions a legal system which is “more proportionate and conciliatory...where the emphasis moves from what is right to finding a solution that the parties can live with” (Prince, 2018: 186). Arguably, the core tenets of socio-legal studies and of critical legal studies are not wholly incompatible with the LSA’s dramatic change in emphasis away from the idea that the provision of legal advice, assistance and advocacy is the main business of the legal services market towards the less individualistic and technocratic ideals of “supporting the constitutional principle of the rule of law,...improving access to justice” (Yeatman, 2018: 131) and “increasing public understanding of the citizen’s legal rights and duties” (Prince, 2018: 188).
Many are counting the costs of “changes to civil litigation” (McKeown, 2018: 96) and of “significant cuts to legal aid provision for those parties seeking private law dispute resolution for legal disagreements involving children, finance or property” (Prince, 2018: 187). which the Legal Aid, Sentencing and Punishment of Offenders Act 2012 brought about. The university Law School will undoubtedly bear its share of these costs. This share is likely to be calculated in reduced opportunities to fashion the “undergraduate law degree as a liberal arts education that is not directly connected to vocational training” (Yeatman, 2018: 128). Rather, the drivers behind new or revised law degree programmes are likely to lead toward the conceiving of the law degree as fundamentally a “professional degree” (McKeown, 2018: 89). It is arguable that debate over the merits of the liberal arts degree as opposed to its professional appearances is evidence of yet another false binary. Whether this is so or not is for another time and another review. I am happy to end this review on the reflection that if a professional law degree were to be devised by the authors of this collection, students, public and academics alike can rest assured that its design will enfold the very best of the long and diverse traditions of legal education for social justice.
Tuitt, Patricia, “Critique of Non-Violence”, forthcoming (2018), Griffith Law Review.