The future of law clinics: bringing about social change and promoting human rights?

It was clear from an excellent workshop in Tel Aviv University last month[1] that an impressive number and variety of innovative projects are operating in law clinics in universities and colleges in Israel; for example, in employment law, environmental law, and criminal and youth justice. They are delivering real benefits in their localities and also seeking to spread their impact. They deserve solidarity too for their courage in the face of hostility from sections of Israeli society towards their work with migrants.

We were also invited at the workshop to think of law clinics in terms of ‘bringing about social change’, and ‘promoting human rights through public law in Britain’. This topic is worth exploring further. The ‘social change’ agenda is as old as law clinics, but it has renewed potency in new times, especially with the rise of human rights in recent decades.

This personal reflection focuses on undergraduate law clinics in public universities in the UK that provide a free legal service to those who cannot afford access to the law. Clearly, somewhat different considerations may apply in respect of other client groups, or where fees are charged, or in private bodies, postgraduate schools, specialist institutes and so on.

Social change

Law clinics clearly effect ‘social change’ in many ways, for example by helping a disabled client obtain their lawful welfare benefits entitlement; or by winning legal precedents advantageous to a client group; or by working with other groups in the field; or in the manner of academics generally by undertaking scholarly research and publication in matters arising from casework, disseminating lessons learned, blogging, informing public and parliamentary discussion, submitting evidence, drafting legislation etc.

But ‘bringing about social change’ and ‘promoting human rights’ clearly indicates a more ambitious agenda – changing attitudes, changing the law, changing society. There may be no bright lines here, but issues of orientation and proportion arise. A law clinic student providing access to the law for those who cannot afford to pay for it is one thing. A law clinic student campaigning together with political parties, NGOs and interest groups for an amnesty for ‘illegal’ immigrants before the next election is another.

‘Social justice’ is often invoked in these discussions in support of change, as if the desirable direction of change is self-evident. But does social justice require, for example, an increase or a reduction in those welfare benefits? And who decides what is just – the institution, clinic, lawyer, student or client?

The idea that driving social change is a key function of lawyers has always been controversial. It remains unclear why lawyers, law students even, deserve such greatness being thrust upon them. In a way, law clinics have always been asking for it. In seeking to assist those who cannot afford access to the law whilst enhancing legal education, law clinics have always expressed a basic sense of social responsibility. This has led professional bodies, philanthropic foundations and others to see them as useful vehicles for the acculturation and socialisation of students into the legal profession, and for arming them with the ethics they may need. It has led to law clinics being encouraged to educate the public at large about the law, how it might and might not help them. And it has led to their being tasked with owning justice, changing attitudes and moulding society.

In teaching students through their supervised participation in a free legal service, we should be careful about recruiting them to a particular political view, and deploying the resources of a public body to promote that view. Encouraging a consciousness in all individuals that they have it in them to act as agents of social change is desirable at any stage of their upbringing and education. This is probably best fostered by helping them to improve not only their knowledge, but also their ability to learn and think for themselves, and with open minds. Setting out from a base in a university law clinic to change society, especially with the meaning of ‘justice’ already to hand, has the potential to compromise the teaching, the legal service and the institution.

Human rights

We should also remember that the promotion of human rights law, wherever it is done, is itself a highly political activity. It is an approach that specifically urges the greater use of the law and the courts as opposed to a more democratic politics in deciding public policy and effecting social change. Obviously, legal and democratic routes to change are not mutually exclusive, indeed can be mutually supportive, but a strong emphasis on human rights law entails a definite tendency to exclude those people outside elite circles.

Recently, we saw where that can lead. While lawyers, judges, legislators and others were busy in deliberative dialogue with each other as to how law and society should change, they comprehensively lost the room – as dramatically confirmed in elections in the UK and USA. These were timely reminders that citizens at large who are not lawyers, or otherwise connected, must be more involved in deciding the direction of social change, and persuaded as to its direction, rather than having it decided for them by unelected experts.

These issues have surfaced in Israel too. Speaking just over a year ago in London, Professor Ruth Gavison, of the Hebrew University of Jerusalem, noted that there has been for some time in Israel ‘a slow but persistent move of power from the elected branch of government to the professional elites’, and perceived now ‘a tendency to push towards resolution of controversial issues in laws and judicial decisions’. She spoke up for human rights and democracy, but especially for democracy, ‘We support democracy because it allows us to be free and active and fight within the political system for change. … and democracy should be the way you translate your political energies, your civic solidarity and your other kinds of solidarity and try to make your country great.’[2]

It is, of course, a failure of politics that has dramatically boosted the human rights culture. But if we are to have any chance of dealing with the difficulties that we face, we are going to need a bigger boat – a more democratic, participatory and persuasive politics – in order to take people with us.

Universities

Universities have supported law clinics, amongst other reasons, because they enrich the academic study of law, allow students to gain vocationally relevant experience and skills, and help universities contribute to local and wider communities. And law clinics, in many diverse forms, have delivered these things; and it is hoped that universities will continue to support them in doing so.

We take into account changes in universities. The employability of their customers and the impact of their academics are now key concerns. Recent regulatory developments also suggest that law degrees in particular are likely, overall, to become much more vocationally oriented. Nevertheless, the core educational mission remains – expanding and transmitting knowledge, culture and critique through scholarship, research and teaching. The role of a university as a distinct site of authority in society also endures, and crucial to that are its independence and a certain distance from other sites. Both role and mission deserve respect. A university is not an NGO, nor is it a basic training outpost for the legal profession.

Respect is also due to the individual interests and agency of the client that a law clinic offers to assist. A client’s case should be driven by the client’s interests and instructions, not by an ulterior ambition. The ethos of the institution will determine the sort of legal service it offers. Beyond that, and a commitment to providing a first class service, it is best if teaching and casework are not distracted or distorted by prescribed agendas, but are led by example.

What a happy synchronicity it is that a university can, very conveniently, combine a contribution to local and often wider communities, with an extraordinarily rich educational opportunity for its students. Staff and students can help people obtain such things as their proper entitlement to welfare benefits, decent housing, refugee status, compensation for unfair dismissal, the resolution of family disputes, advice to those in prison, and access to public greens, all by facilitating access to the law, and all in the course of learning and teaching, at little extra cost. Providing a fine public legal service and teaching our students well are good and important ends in themselves, and as challenging as they are rewarding.

The purely academic benefit is central, and is often misunderstood. The supervised participation of students in a legal practice allows them to engage with the law and its unfolding application, and also with the people who are immediately and intimately affected by it. It offers a thrilling learning curve. And the learning can focus on the law. Vocational skills will be acquired, but it does not have to be an internship, mini-pupillage, legal practice or training centre. It is a wonderful opportunity to learn about law from a new perspective.

In its educational dimension the practical activity is a means to an end, and that end is a better knowledge of law and an improved ability to reflect critically on law and its application in practice. The casework is only half of it. Law clinics require students to reflect critically upon and research further matters arising from their practice, and to submit substantial written work on relevant law, procedure, doctrine, theory and policy – and on the problems and lives of others. If we ensure that casework and study are a joint enterprise, then law clinic students can truly deepen and broaden their knowledge of law and society, and refine their ability to think about it. We can leave the rest to them.

John Fitzpatrick, Kent Law Clinic, University of Kent

15^th January 2018

[1] The Future of Law Clinics: UK-Israel Clinics Collaboration Workshop, University of Sussex, Friends
of Israel Educational Foundation, Tel Aviv University. 10-12th December 2017, Tel Aviv University.

[2] Ruth Gavison, ‘Debating Israel’s Identity’, Fathom, Winter 2016
http://fathomjournal.org/debating-israels-identity/