Abstract
By and large, the dominant tradition in Anglo-American legal scholarship today is unhistorical. It attempts to find universal rationalizing principles… The underlying structure of the law class remains that of forcing the student to reconcile contradictions that cannot be reconciled… The ideological ‘tilt’ of current legal scholarship derives from this attempt to be suppress the real contradictions in the world, to make the existing world seem to be necessary… to be part of nature of things. It is history that comes to challenge the approach by showing that the rationalizing principles of the mainstream scholars are historically contingent. (Horowitz, 1981: 1057)
It is a happy augury that of late the focus of legal thinking the world over has shifted to the ground level legal realities or to ‘law in action’ that has revived debates on issues such as : ‘access to justice’, ‘legal aid’, ‘clinical legal education’, ‘justice education’ and so on. Such a shift of focus has been inspired by some of the following reasons: First, disillusionment stemming from overbearing position of positivism and associated legal orthodoxy that is premised on a juridical world view based on a priori assumptions. Second, the growing impact of legal realism with its emphasis on law in action. Third, the universalisation of right to access to justice and Fourth, the birth of the idea of legal activism at the professional and civil society levels and its proliferation to the legal academic circles. At such a critical juncture the emergence of the book Clinical Education is almost propitious. It is more than coincidental for India that the aforesaid book has come close on the heels of a very significant publication of the Ministry of Justice of the Government of India and the UNDP, India: A Study of Law School Based Legal Services Clinics: Access to Justice for Marginalized People, 2011. The two aforesaid publications are a good indicator of the state of global clinical movement, particularly in the Indian context.
The book under review: Clinical Education has presented the global clinical movement subject through twenty-five essays into three parts, namely, Part I: ‘Global Reach of Clinical Legal Education’, Part II: ‘The Justice Mission of Global Clinical Education’, and Part III: ‘The Global Clinical Movement and Educating Lawyers for Social Justice’. The book starts with an introduction, so do each of the three parts giving a brief resume of the framework and contents carried in the individual essays covered in the three parts. The nine essays in Part I in a way set the stage for global clinical movement by incorporating a country- and region-wise reporting of the position of clinical legal education starting with the United States, followed by Britain, Canada, Australia, Africa, South-East Asia and India, Central and Eastern Europe, Latin America, China and Japan. The eight essays in Part II are devoted to various clinical legal education experiments such as legal aid, community Law Clinics, Professional Competence and ethics, Public Interest Law, Justice education and law reform, Street Law and Social Justice, Legal Literacy Projects, Alternate Dispute Resolution, etc., which are all assumed to be leading to ‘justice mission’. The eight essays in Part III are a kind of summing up of the impact of clinical legal education on enhancing access to justice, training of future lawyers in professional skills and values and creating a diversely skilled legal profession with a stronger commitment to serve social needs. The above discussed twenty-five essays contain wealth of material relating to global clinical movement. However, the present review that aims at achieving the twin task of critiquing the ‘Clinical Movement’ and evaluating the Clinical Education aims at focusing on four key issues, namely: (a) conceptualising clinical legal education, (b) diverse models and strategies of clinical legal education, (c) the challenge of achieving ‘justice education’ through clinical education and (d) transporting the global clinical experience to enrich the Indian legal education and law reforms. The review in terms of the four aforesaid issues will enable us to not only evaluate the essays in the light of a wider and more critical frame of reference, but also evaluate the broader nature in terms of a meaningful transformation of the larger legal system itself.
Concept of Clinical Legal Education
It is expected that a compilation of essays on a specialised theme like clinical legal education should have begun with a detailed discussion on conceptual issues: How clinical legal education differs from traditional legal education? What is ‘Clinical’? Is clinical synonymous with field based or law in action-orientation? How clinical legal education compares with medical education that is inherently live-patient oriented? Why clinical legal education is still struggling to get legitimacy within the much larger formal legal education domain? Perhaps to avoid going into such conceptual issues and to respect the factor of diversity in legal education realities, the editor of the present compilation devoted the Part I to ‘Global Reach of Clinical Legal Education’ that acknowledges the arrival of clinical legal education globally, despite its regional variations and differences. It might be a good strategy to describe certain trends in legal education, both strong and weak, as a movement already, but at the implementation level conceptualisations do assume importance. At times lack of clarity becomes a reason for the defeat of a ‘cause’.
Seeking for the concept of clinical legal education you have to go to essay 18 by Frank S. Bloch and N.R. Madhava Menon titled as ‘The Global Clinical Movement’. Here Bloch and Menon have conceptualised clinical legal education in term of its three defining qualities, thus:
The first quality goes directly to its professional education mission. Clinical legal education around the world focuses on two curricular goals aimed at preparing students for practicing law not otherwise emphasized sufficiently in the traditional law school curriculum: providing skills training and instilling professional values of public responsibility and social justice. A second quality relates to its methodology. At the core of clinical teaching mission is of commitment to experiential learning. Clinical training and values takes place while students are in professional roles—real or simulated and not in a traditional classroom setting, where law is taught through one way lectures or from cases and materials presented exclusively in printed texts. Finally, clinical legal education is committed to reforming legal education by re-orienting it towards education lawyers for social justice.
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(emphasis supplied)
The aforesaid conceptualisation of clinical legal education is in broad terms that relate to its three aspects, namely: (a) goal of professional legal education, (b) experiential learning methodology and (c) reform of legal education. It is interesting to compare what the joint authors of the present essay had to say about clinical legal education in their writings over a decade back. In an earlier (1998) edited volume: Clinical Legal Education,
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Menon has conceptualised clinical education this way:
Clinical Legal Education has wider goals of enabling Law students to understand and assimilate responsibilities as a member of a public service in the administration of the law, in the reform of the law, in the equitable distribution of legal services in society, in the protection of individual rights and public interests and in upholding the basic elements of ‘professionalism’ clinical experience in law school thus offers a unique opportunity for students to learn, under supervision, not only about the professional skills used by lawyers, but also about many aspects about ‘hidden curriculum’ essential for preparation to think and act like a lawyer.
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To Menon, clinical legal education is a means for impacting legal profession that should appreciate larger role in the society. To the same end Menon in late eighties
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identified the following five objectives:
To acquaint the students with the lawyering process generally and skills of advocacy in particular To expose the students to the actual social milieu in which disputes arise and to enable them to develop a sense of social responsibility in their professional work To be able to seek and critically consume knowledge from outside the traditional legal areas for better delivery of legal services To understand the limits and limitations of the formal legal system and to appreciate the relevance and use of alternate mode of lawyering To imbibe social and humanistic values in relation to law and legal process while following the norms of professional ethics.
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Unlike Menon, Bloch had then emphasised the methodological aspect of clinical legal education in the same compilation in these words:
Clinical legal education is however more than a vehicle for the study of lawyering and the legal profession. Properly devised and implemented, the clinical method of law teaching gives law students a deeper and more meaningful understanding of law, the legal profession and the lawyering process than would be possible if these same subjects were taught with traditional methods in the classroom.
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Here Bloch appears to be over-emphasising the experiential learning methodology. Contrast this conceptualisation of Bloch with what he writes about clinical legal education in Clinical Education at page XXII thus: ‘But clinical legal education is different. Clinical legal education is hands on professional skills training coupled with instructions in—and initiation into—lawyer’s public and professional responsibilities.’
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Such a shift in Bloch’s thinking may be explained either by futility of stressing experiential learning line or stronger influence of the legal professional fraternity on clinical legal education. Further Bloch appears to have accepted considerable dilution of his experiential learning line, because the three point conceptual formulation at pages 268–69 accepts to equate real experience with simulated experiences (see the underlined at p. 269). It requires little explanation that clinical experience in simulated setting is only a second hand experience, at best. Can medical out-patient experiences be replicated by acting or robotic patients? This is the essential difference between the United States live models of clinical legal education and the British simulated models of clinical legal education. In India too, despite the Bar Councils initiative of introducing four compulsory practical training courses in 1997 namely: (a) moot court, (b) drafting, pleading and conveyancing, (c) professional ethics and (d) public interest lawyering, the legal education is still very much class-room based. Real field experience is still not seriously contemplated by education policy planners and executors.
In the context of concept of clinical legal education another interesting essay is by Neil Gold and Philip Plowden, it is titled as ‘Clinical scholarship and the development of the Global Clinical Movement’ has given a scholarly treatment to the otherwise field experience-based subject. Gold and Plowden begin with a definition of clinical legal scholarship, thus: ‘Clinical legal scholarship by contrast, is scholarship undertaken by students supervising lawyers, and law professors that is observational, empirical or theoretical and focused on professional skills training, experiential learning, and the teaching of professional responsibility and social justice.’ 8 The essay goes on to report that in the US during 1960–70 only 41 articles were written with ‘clinical’ emphasis, but in 1995–2005 there were 330 articles on ‘clinical’ themes (p. 311). At p. 314 the essay has given an account of the page count of the various Clinical themes covered in leading bibliographies of legal writings (p. 314). The following comment about clinical scholarship can usefully go in to further refine the concept of clinical legal education: ‘But above all, clinical scholarship faces in two directions: it is both a developmental conversation with other clinicians and it is the making of a case to the traditional legal academy that clinical teaching is worthy of equal respect.’ 9
Diverse Models and Strategies of Clinical Education
The global clinical legal education experiences are diverse and varied. These variations depend upon the diversity of perceptions of what is meant by clinical legal education and which aspect of clinical education is given emphasis. Furthermore, the issue of choice of clinical legal education would also depend upon the resources and location of the concerned Law School itself. For example the National Law School of India University, Bangalore had offered in early 1990s a wide range of clinical programmes on a compulsory and optional basis. The three compulsory courses were: (a) Client interviewing counseling and Alternate Dispute Resolution, (b) Litigation Clinic and (c) Special clinic integrated with compulsory placement from III year to V year. The optional clinical courses were: (a) Moot Court, (b) Legal Services Clinic and (c) Community based Law Reforms Competition. 10
The Part II of Clinical Education is mainly devoted to a discussion of the various clinical education experiments drawn from the diversely placed Law Schools in different parts of the world. The experiences narrated in the eight essays relate to different countries like Australia (community law clinics), England and Wales (Professional Ethics), Brazil and Poland (Public Interest Law), South Africa (Street Law Programmes), India (Legal Literacy Project), United States, South Africa and India (Alternative Disputes Resolutions and Law Reforms Projects, etc. Franks S. Bloch and Mary Anne Noone’s essay titled as ‘Legal Aid Origins of Clinical Legal Education’ 11 is an excellent backgrounder to this part relating to models and typologies of clinical education. The essay also relates clinical education to justice mission by linking it to access to justice ideal. To the authors ‘Clinical legal education is often associated with the provision of legal aid to poor, marginalised and the disadvantaged.’ 12 The essay goes in to elaborately discuss the prevalent three models and features of the Law School legal aid clinics, namely (a) ‘Individual service’ model, (b) ‘Specialisation’ model and (c) Community model. The models of legal aid could have been further refined by making a distinction between indoor or Law school based individual service or ‘specialisation’ model and outdoor or legal problem area-based clinic model. 13 The Delhi Law Faculty Legal Aid Clinic operated an outdoor clinic in the Beggar’s Courts at the Poor House Complex in the Kingsway Camp from 1976 to 1979 and not only rendered legal services to beggars/vagrants in 3991 cases, but also provided an effective clinical education opportunity to the Law Faculty students and teachers. 14 It is a bit surprising that such a vital legal aid and clinical education experiment could not draw the attention of clinical legal education crusaders like Dr N.R. Madhava Menon 15 and Frank S. Bloch. 16
Part II has three very interesting and informative essays on public interest law (by Daniela Ikawa), law reform (by Les McCrimmon and Edward Santon) and street law (by Ed O’Brien and Judy Zimmer) that are on themes relatively less known in Asia and India. The essay on legal literacy projects by Ajay Pandey and Sheena Shukur have focused on a very specific legal literacy programme that is unique and region-specific. The project that is backed by Jindal Global Law School takes a very broad view of legal literacy that aims at ultimate empowerment of the poor in a backward region of Haryana. The bold initiative of the project planners and executors, who have chosen to work such a unusual project on the face of all odds, does not match with the following defeatist observation that laments this way: ‘Full time law teachers are not allowed to practice law, which is regarded as a major hurdle in developing effective clinical legal education in India. Had there are no provisions authorising law students to practice law in a legal clinic’ (p. 247). The aforesaid observation is neither legally correct nor factually appropriate. The Advocates Act, 1961 under Section 37A extends permission to full time teachers and final year law students to take up legal aid briefs. Similarly, in matters of law students taking up legal aid cases, of bail proceedings before Magistrates courts in Delhi was that the majority of courts (32 out of 35) permitted the student volunteers to inspect case files and move bail applications. The recent National Legal Service (Legal Aid Clinic) Regulation 2011 has further legalised clinic student members extending legal services in legal aid cases.
‘Justice Education’ Transformation of Clinical Legal Education
Frank S. Bloch begins, rather ambitiously, about the arrival of global clinical movement and its social justice mission in these words: ‘Clinical programs exist today, in one form or another, at Law Schools throughout the world… its commitment to providing “socially relevant legal education” a mission that resonates across any local-global divide… there is the collective energy of clinical law teachers throughout the world seeking out and joining with colleagues to share experience and advance common goal, the global clinical movement…’ (p. XXXII). Perhaps the key to Bloch’s aforestated ambitious conclusions lies in the coming into being of the Global Alliance for Justice Education (GAJE) that was inaugurated barely a decade back. Transformation of clinical education into justice education requires much more than forming GAJE or wishing to identify scientifically and vigorously the inhibiting or injustice perpetrating factors and taking positive steps to reverse the balance. Furthermore, there is a need to understand the philosophy and sociology of ‘justice mission’ itself.
Essays 12, 13, 14, and 24 take a pragmatic line by identifying and locating ‘justice inhibiting’ features in the legal system itself that need to be addressed in right earnest. For example Daniela Ikawa identifies ‘conformity’ itself a problem in legal education, thus: ‘Traditionally, law has been perceived as a means to preserve the status quo. It establishes and preserves rules, principles, and institutions that coordinate the relationship among individuals and overall structure of a society. The conformist idea of law is often reflected in legal education…’ (p. 197). In the same vein Les McCrimmon and Edward Santon have observed: ‘To differentiate between law and justice is one of the first things a law student learns: to know that plaintiff’s success in a particular case does not necessarily mean that this was the just result…’ (p. 211). Adrian Evans in his essay on ‘Normative Attractions to Law and Their Recipe for Accountability and Self-Assessment in justice education’ raises some very fundamental issues such as the positivist tradition and normativity of Law and asks the question: ‘If law is seen “just the rules”, socially active lawyers can find it much harder to locate within those rules the discretion that is needed to achieve justice for the impoverished clients…’ (p. 359).
Though ‘justice mission’ is focused as the key indicator of the global clinical education movement but Part II essays scarcely discuss what is meant by ‘justice mission’. Only Frank S. Bloch and Mary Anne Noon have taken the trouble of tracing the origins and evolution of the idea of access to justice. Even their quest almost gets lost half-way when they end-up, thus: ‘Legal aid-based clinics have enormous transformative potential… the full extent of this potential is yet to be realised… harnessing that potential for the benefit of social justice and legal education reform is among the most important opportunities and challenges of the global clinical movement…’ (p. 163). However, in this respect, essay 14: ‘Justice Education, Law Reform and The Clinical Method’ and essay 13: ‘The Impact of Public Interest Law on Legal Education’ displays much greater creativity. The essay 14 by Les McCrimmon et al. poses the dilemma of the justice lawyer, thus:
Where the law discriminates unfairly against a particular category of person or where law trespasses on people’s fundamental rights—in short whenever the law gives rise to systemic injustice—lawyers have a legitimate role in counteracting this. In this sense lawyers must be engaged deeply and actively in law reform (p. 212).
Similarly in essay 13 Daniela Ikawa observes:
Its special connection to reality and to material justice inspires (future) legal professional to think beyond the law in terms of what law should be and how the law should be implemented or reformed. And one of the means for this inspiration are law school clinics that work on public interest law cases (p. 198).
Ultimately the blame goes back to the tradition of Anglo-American Law and the legal education system itself. The Anglo-American legal and the legal and education systems have profoundly influenced the world legal systems for good reasons,
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but the system must be ready to accept blame for inherent shortcomings, particularly if reform of the system is in mind. Reform of the system and movement in the direction of ‘justice mission’ is not possible without paying heed to the often ignored radical alternative elaborated by Richard Quinney in these terms:
The Radical theory revises our notions about the related ideas of law and order, natural law, civil liberties, civil disobedience and morality. In the course of revision we are developing a new understanding about the role of law in society. And we realise that the ideal of law is a myth that has been perpetrated by a narrow Western intelligence. (Richard Quinney, 1978)
Transporting the Global Clinical Experience to Enrich the Indian Legal Education and Law Reforms
The essay 23: ‘Setting an Agenda for the Global Clinical Movement’ by Margaret (Peggy) Maisel has stressed the vital significance of access to justice for developing countries, thus:
Access to justice is a core component of the agenda for the clinical movement in developing countries. This is no longer the case to the same extend in the United States and other developed countries, although it was a motivating factor to the development of law clinic in their earlier history prior to the expansion of government and philanthropically supported legal aid organisations. (p. 336)
In a similar vein the essay 15 by Richard Grimes, David McQuoid Mason, Ed O’Brien and Judy Zimmer underscore the special needs of a developing society, thus:
In any country, and notably a developing country like South Africa, it is important that law students be encouraged to participate in community service and be given academic credit for their efforts. In our experience a property integrated academic and community service street law program provides law students with an opportunity to experience social justice in the real world, while rendering a service to society and obtaining valuable insights into their own potential as future lawyers. (p. 238)
It may be useful here, with a view to give an idea of the Indian context, to a recently published: Study of Law School Based Legal Services Clinics (2011). The study has for the first time tried to empirically evaluate the contribution of Law School Legal Services clinics in select states of the North India.
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The legal services clinic realities are evaluated in terms of four key issues, namely (a) approaches to legal aid, (b) activities of legal aid, (c) shortcomings in Law School clinic initiatives and (d) challenges before Law School clinics. The Study has identified four reasons for shortcomings in Law School legal services clinics such as (a) lack of financial support, (b) restriction on the Faculty to practice, (c) absence of academic credit to students, and (d) legal Aid not a part of workload of the Faculty (Table 31 at p. 38). The Study has strongly indicted the National Law Schools for their unsatisfactory legal aid performance in these words:
National Law Schools which are termed as the premier institutions and the best schools for legal education in India fare very poorly in providing legal aid to poor. Legal Aid is neglected to the core in these law schools… Legal Aid is not a compulsory component in any of the Law Schools. As a result, very few students participate in the activities of Legal Aid, in any. Considering the reputation, resources and the support they receive from the public exchequer, their performance is dismal as far as Legal Aid is concerned.
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This path-breaking study has been critiqued for its multiple shortcomings relating to choice of universe, style and conclusions.
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However, Clinical Education has a few solutions to the stuck up legal aid movements as follows:
Three suggestions are made here to how the global clinical movement can increase its chances of success in improving access to justice worldwide. First, the clinical movement in each country should work in partnership with local government legal aid schemes and non-profit organisations to design the most effective legal delivery system while avoiding duplication services. Second, the global movement needs to help increase the number of legal representatives for the poor by advocating for changes in practice rules to allow law students to provide direct representation to clients under the supervision of attorneys. And third, to further maximise available resources, the global clinical movement should encompass legal literacy and street law programs so that law students should learn about the importance of integrating community education and client representation while clients are empowered to either advocate for themselves or take preventive measures to avoid legal problems in the future. (p. 337)
Finally, essay 23 concludes by suggesting three part strategy that has great relevance for our society too, thus:
A three part strategy is suggested here: changing nationally mandated Law School curricula to include clinical courses, whether it be by the government for public law schools or other law schools accrediting bodies: developing best practices for clinical legal education in each country and hiring and training permanent members of law school faculties capable of teaching clinical courses. (p. 340)
To conclude, the Clinical Education has succeeded to a considerable extent in, first, creating a background to clinical legal education idea, second, providing an insight to the diverse models and strategies of clinical education, third, indicating how and why clinical education idea is responsible for achieving the ideal of ‘justice education’ mission and, finally, tracing the trend towards ‘global clinical movement.’ At places the compilation suffers on account of lack of coherence between the diverse narratives. But that may be because Clinical Education appears to have strategically followed a policy of loosely defining the concepts such as ‘clinical education’, ‘justice mission’ or ‘global clinical movement’, for a purpose?