Social justice jurisprudence of clinical education programme: A paradigm shift from legal education to justice education

The legal profession has remained relevant in bringing about positive transformation in society — with leaders, policymakers, and change makers around the world mostly possessing a background in the law. That said, the trust, and positive image, enjoyed by legal professionals continues on a declining path. Considered more glamorous, the legal profession has gone astray from the path of social justice. In this article, I argue that the negative perception of legal professionals is, in large part, because of the way legal professionals are taught and trained in law schools. I argue that legal teaching pedagogy in South Asia, and generally in developing countries, is a product of colonial structure. Even after the so-called decolonisation movement, law schools and universities, for example in South Asia, institutionalised a legal pedagogy unsuited to the epistemic actualities of their societies. A law student in South Asia was and continues to be taught the Western conception of what the law is and its relationship to justice. In a legal culture carrying the transplanted laws of the colonisers, the students of developing countries are meticulously trained in the technical skills of reasoning and interpretation by applying Eurocentric guidelines of positivist construction. In light of this, I propose a shift in legal education: to transform the existing legal education and pedagogy into ‘justice education’. I focus on the ancient principles — located in the Eastern legal philosophy — of empirical reasoning and the importance of the human nature of sociability in arriving at social justice. To combat the tendency of insulating law students from societal problems, I propose a social justice-driven legal pedagogy. I have also reflected on some practices that ‘are’ and highlighted other practices that ‘ought to be’. My thesis connotes that the legal profession has an innate role in building the capability of individuals who are deprived and excluded. In line with it, I present examples of scalable clinical legal education being practised specially by the Kathmandu School of Law that can create multidimensional legal professionalism.

     

Legal Positivism, Law's Normativity, and the Normative Force of Legal Justification

In this article, I distinguish between a moral and a strictly legal conception of legal normativity, and argue that legal positivists can account for law's normativity in the strictly legal but not in the moral sense, while pointing out that normativity in the former sense is of little interest, at least to lawyers. I add, however, that while the moral conception of law's normativity is to be preferred to the strictly legal conception from the rather narrow viewpoint of the study of law's normativity, it is less attractive than the latter from the broader viewpoint of the study of the nature of law. I then distinguish between a moral and a strictly legal conception of the normative force of legal justification, and argue that legal positivists may without contradiction embrace the moral conception, and that therefore the analysis of the normative force of legal justification need not be a problem for legal positivists. I conclude that, on the whole, we have reason to prefer legal positivism to natural law theory. I begin by introducing the subject of jurisprudence (section 1). I then introduce the natural law/legal positivism debate, suggesting that we ought to understand it as a debate about the proper way to explicate the concept of law (section 2). I proceed to argue that legal decision-making is a matter of applying legal norms to facts, and that syllogistic reasoning plays a prominent role in legal decision-making thus conceived (section 3). Having done that, I discuss law's normativity (section 4), the normative force of legal justification (section 5), and the relation between the former and the latter (section 6). I conclude with a critical comment on Joseph Raz' understanding of the question of law's normativity (appendix).     

The Perils of ‘As If’ European Constitutionalism

This review article offers thoughts on Kaarlo Tuori's recent book, European Constitutionalism, and more particularly on what he calls the ‘disciplinary contest over the legal characterisation of the EU and its law’. As the book's title suggests, Tuori privileges the constitutional perspective in that contest, so much so—he freely admits—that his analysis ‘predetermine[s] how the EU and its law will be portrayed’. And therein also lies the book's main weakness. Tuori's predetermined ‘constitutional’ interpretation, like so much of the dominant legal discourse in the EU today, ultimately obscures the core contradiction in EU public law. National institutions are increasingly constrained in the exercise of their own constitutional authority but supranational institutions are unable to fill the void because Europeans refuse to endow them with the sine qua non of genuine constitutionalism: the autonomous capacity to mobilise fiscal and human resources in a compulsory fashion. The EU's lack of constitutional power in this robust sense derives from the absence of the necessary socio‐political underpinnings for genuine constitutional legitimacy—what we can call the power‐legitimacy nexus in EU public law. To borrow Tuori's own evocative phrase, the EU possesses at best a ‘parasitic legitimacy’ derived from the more robust constitutionalism of the Member States as well as from the positive connotations that using ‘constitutional’ terminology evokes regardless of its ultimate aptness. The result is an ‘as if’ constitutionalism, the core feature of which is an increasingly untenable principal‐agent inversion between the EU and the Member States, one with profound consequences for the democratic life of Europeans. The sustainability of integration over the long term depends on confronting these adverse features of ‘European constitutionalism’ directly, something that legal elites—whether EU judges, lawyers, or legal scholars—ignore at their peril.     

Freedom, Law, and the Colonial Project

In this essay I develop a Marxist-informed anticolonialist position, and from this position I assess the role of law in the early Canadian settler-state. I claim that the flexibility of law is a measure of its restitutive and exploitative facets, such facets that operate dialectically as a means of moderating between the settler-state’s liberal democratic ideals (e.g. individual freedom and enfranchisement) and its capitalist imperatives (e.g. privatization of land, expansion, and profit). Law plays an integral role in this context because, by performing this moderating function, it stabilizes the socio-economic order of the emergent settler-state. In the second half of this essay, I enrich my theoretical analysis by examining the variable legal subjectivity of early Ukrainian immigrants to Canada. This historical perspective allows me to illuminate the intricacies of the logic that informs law’s flexibility, and to show how the liberal democratic principle of freedom was—and continues to be—both extolled and compromised by the law’s moderating function.     

Legal Reasoning and Legal Theory Revisited

This article deals with the relation between a theory of law and a theory of legal reasoning. Starting from a close reading of Chapter VII of H. L. A. Hart's The Concept of Law, it claims that a theory of law like Hart's requires a particular theory of legal reasoning, or at least a theory of legal reasoning with some particular characteristics. It then goes on to say that any theory of legal reasoning that satisfies those requirements is highly implausible, and tries to show that this is the reason why not only Hart, but also writers like Neil MacCormick and Joseph Raz have failed to offer a theory of legal reasoning that is compatible with legal positivism as a theory of law. They have faced a choice between an explanation of legal reasoning that is incompatible with the core of legal positivism or else strangely sceptical, insofar as it severs the link between general rules and particular decisions that purport to apply them.     

Gardner on Legal Reasoning

In Chapters 2, 3 and 7 of his new book, Law as a Leap of Faith, John Gardner provides the elements of an account of legal reasoning. It is on the basis of this account that Gardner defends or supports some of the most important theses of his book, viz. theses pertaining to how law can be made, to the relation between law and morality, and to the legitimacy of judicial law-making. A central element of Gardner’s account is a distinction (suggested originally by Joseph Raz) between two forms of legal reasoning, namely, reasoning about the law and reasoning according to law. In this paper I intend to describe and evaluate Gardner’s account. Among the critical remarks that will appear in the paper is the claim that Gardner’s concept of reasoning according to law is overly inclusive.     

法律推理的客观性及其实现条件

20世纪西方法理学经历了从法律确定性向法律不确定性的转向，以“唯一正确答案”为核心的法律确定性难以成立。然而，这并不会影响法律确定性所追求的限制权力这一政治目标的实现，恰当阐释的法律客观性观念可以作为法治的基石。共同的社会文化背景、适当的法律推理思维方法、成熟的法律职业共同体三者的共同作用将为法律推理的客观性的实现提供保障。     

Internal Market Rationality,Private Law and the Direction of the Union: Resuscitating the Market as the Object of the Political

This paper proposes a concept of ‘internal market rationality’ for the analysis of the political, legal and economic consequences of European integration. Internal market rationality refers to a specific pattern of political action in the field of internal market, which has emerged gradually due to the confluence of three main factors: first, the EU's functional institutional design; second, the processes of post‐national juridification; and third, a more contingent influence of ideas. In the interplay of those three factors, the interpretation of internal market has become overdetermined, restricting thereby the space of (democratic) politics in its regulation. This reification of internal market rationality has had a direct influence on the content of European law, as I demonstrate through the example of European private law. Internal market rationality has transformed the very concept of justice underpinning private law, the concept of the person or subject of law, the (re)distributive pattern of private law as well as the normative basis on which private law stands. I argue, finally, that a close examination of the legal, institutional and ideological arrangement behind internal market rationality provides clues for the democratisation of the EU.     

Just-in-Time Justice: Globalization and the Changing Character of Law,Order, and Power

This article examines how economic globalization has dialectically interacted with the nation-state and legal order to facilitate the production of “just-in-time justice”—the increasingly flexible character of law, order, and power. Utilizing Chambliss’s analytic strategy, particularly his dialectical approach to lawmaking, I first examine the relationship between the global social order, economic globalization, and the changing architecture of nation-states. I then explore ways that the legal order has been flexibilized, including the creation of “states of exception,” the privatization of social control functions of the state, the development of transnational spaces for governance, and the widespread use of surveillance. My analysis of these transformations suggests that the greatest danger in the contemporary moment may be what we do not know, what is hidden from public accountability, beyond the public gaze. Importantly, this analysis also highlights that law continues to matter—or else there would not be such a press to ensure its disappearance.     

最基本的法现象不是权利和义务而是权利和权力——评童之伟著《法权与宪政》

童之伟教授在其专著《法权与宪政》一书中 ,大胆地提出了最基本的法现象不是权利和义务 ,而是权利和权力 ,并将权利权力关系命名为“法权” ,从而揭示了立法上的权力和私法上的权利这对矛盾 ,以及权利和权力分别所对应的义务 ,这是对“法权”概念的重新诠释 ,实现了对“权”和“广义权利”认识的范畴化 ,基本上解决了长期困扰中外法学界对“权”和“广义权利”的内涵、外延不能合理确定的问题 ,并从改善法学理论的状况入手 ,成功地打通了法理学和宪法学的基本范畴。同时 ,该书哲学思想比较宽厚 ,研究方法独具匠心 ,为我们的学术研究提供了一种可资借鉴的崭新思路     

Jurisprudence and Communication: Secular and Religious

In considering Van Schooten’s study of the Eric O. case (s.1), I ask whether the different approaches taken by the two different “legal institutions”—the prosecuting authorities on the one hand, the courts on the other—are reflective of different images of warfare (a semantic difference) or of the different images each group holds of its own role (a pragmatic difference). If we consider these two “legal institutions” as distinct semiotic groups (s.2), is there an inevitable “communication deficit” (Van Schooten) between them (and the public) and how does this relate to the Hartian account of such a “crisis in communication” (s.3)? I agree with Van Schooten about the role of underlying images in the construction of legal sense, and relate this to the issue of intuitional judgment, both in and outside the law (s.4). I then turn to comparable issues which arise in my other research area, Jewish law, which reflects quite different ideological premises (s.5), reviewing the original (biblical) conception of the (intuitive) role and functions of judges (s.5A), decision-making, justification and consequentialist ethics in postbiblical Jewish law (s.5B), and the conclusions drawn, not least for the pragmatics of communication, in a recent research study on the wife’s rights in divorce. Paradoxically, I argue (s.5C), that the system rests at base on trust rather than objective truth. But trust, too, is a form of meaning, and susceptible to semiotic analysis. I suggest, in conclusion (s.6), that this is an issue which should be treated more seriously in the theory of secular law and legal communication.     

The Limits of Critique and the Forces of Law

Three recent publications evidence a growing interest in critical jurisprudence with materiality, technology, affect and atmosphere. These approaches pose fundamental challenges to existing traditions within legal critique, spurning a focus on the ideology of legal reasoning and exploring instead the unique practices through which the law binds subjects through material, affective and atmospheric manipulations. Through either Andreas Philippopoulos-Mihalopoulos’s ‘lawscape’ or Kyle McGee’s ‘jurimorphs’ these innovative theoretical projects pluralise the ‘forces’ which account for the law’s normativity, disavowing the notion that such forces can be reduced either to a transcendental form (like sovereignty) or to notions of structural or symbolic violence. These approaches address a ‘democratic deficit’ in legal philosophy that has generally excluded the realm of the material in its theorising and allows us to attend to the multiple forms that allow for the passage of law.     

“需要国家干预说”的法哲学分析

“需要国家干预说”是 20世纪中国经济法学最重要的学说之一。有限理性假设、国家适度干预、经济民主、社会公平、经济法治是其基本的法哲学叙事立场。国家是干预需要的满足者,“需要”是通过干预重建经济自由秩序的法律理由。国家超越市场利益关系对经济进行干预调节,国家干预由此构成经济法的基本哲学范畴与法理标志。经济宪政哲学是国家干预经济的法哲学进路,通过经济民主机制设定的干预才能避免经济专制,国家与社会成员共同分享经济权力才能保障干预的社会性与民主性,干预的达成并非一定为了公共,公共中的个体主义是结成公共的价值指引。     

Ideals and Practices in the Rule of Law: An Essay on Legal Politics

Massoud, Mark Fathi. 2013 . Law's Fragile State: Colonial, Authoritarian, and Humanitarian Legacies in Sudan . Cambridge: Cambridge University Press. Pp. 277. Paper $34.99. This essay responds to the three commentators in the symposium on my book, Law's Fragile State, by describing the sociolegal study of the rule of law as an investigation into both a set of ideals (the rule of law as a normative question) and a set of practices (the rule of law as an empirical question). Studying the rule of law involves understanding the contingent nature of its ideals as well as investigating the actual work that lawyers, judges, state officials, aid workers, activists, and others have done in specific contexts to promote legal remedies to social or political ills. These overlapping layers of the study of the rule of law—ideals and practices, normative and empirical—provide a sociolegal framework for understanding the successes and failures of legal work and, ultimately, how citizens experience state power in democratic and nondemocratic societies alike.     

Prolegomenon to a Southern Jurisprudence

It is good to take stock from time to time and to see how things stand in jurisprudence. So, what is the relationship of doctrine and theory with jurisprudence? Is private law theory apolitical while public law contains politics for the very many constitutional ends in the Global South? In India, legal theorist Chhatrapati Singh very originally asked if legal systems and normative systems were the same? Chhatrapati’s enquiry was however a species of the classical approach to the law that promotes the law’s purity. On the contrary, the postcolonial approaches account for the historical life as well as the political proclivities of the law. The private law theory often seen as impersonal and non-imperial comes under scrutiny in the postcolonial approaches. Duncan Kennedy and Roberto Unger notably problematized contract theory, while Upendra Baxi argued for mass tort as public law—contract and tort are both private law—to offer, if you will, a jurisprudence of the South. A southern jurisprudence essentially rejects an impersonal reading of the private law.

     

How Does the European Court of Justice Reason? A Review Essay on the Legal Reasoning of the European Court of Justice

This review essay analyses two significant recent contributions to the debate over the reasoning of the Court of Justice (CJ). These contributions highlight the impossibility of a wholly scientific and deductive approach to attributing ‘correct’ outcomes to the Court's case‐law. At the same time, their analysis adds significant findings for the debate over the Court's possible ‘activist’ or political role. Following from these contributions, this essay makes two arguments: firstly, that the inability of the Court to anchor its reasoning solely in a deductive form of legal reasoning should encourage the CJ to engage in a more advanced ‘constitutional dialogue’ with the EU's political institutions; and secondly, that truly understanding the Court's reasoning involves a closer analysis of the institutional and personal dynamics influencing Court decisions. Understanding European judicial reasoning may require a closer look at the social and political—as well as doctrinal—context within which European judges act.     

Laws of Inclusion and Exclusion: Nomos,Nationalism and the Other

This article explores how and why contemporary nationalist ‘defence leagues’ in Australia and the UK invoke fantasies of law. I argue these fantasies articulate with Carl Schmitt’s theory of ‘nomos’, which holds that law functions as a spatial order of reason that both produces and is produced by land qua the territory of the nation. To elucidate the ideological function of law for defence leagues, I outline a theory of law as it relates to (political) subjectivity. Drawing on the work of Foucault, Agamben and Brown, I demonstrate how subjects form and are formed by historically contingent relationships to law in the contemporary neo-liberal moment. Turning to Lacan, I show how nationalistic invocations of law provide nationalists with a fantasy that the nation’s law represents them and holds them together (as the nation itself). Similarly, I argue that nationalists imagine that the other has their own law as well, which not only corresponds to the other, but functions as a legible index of the other’s otherness—a metonym for the threatening uncertainty and radical difference that the other represents. Drawing on Lacan’s concept of the big Other, I ultimately argue that nationalists aggressively (re)assert law not only to defend the nation, but to ensure their own symbolic and ontological security therein.

     

Public Reason Between Ethics and Law

Rawls says that public reason is the reason of the citizens of a democratic state and takes the Supreme Court in the USA as the exemplar of public reason. It differs from non public reason, which is used e.g., in universities and academic institutions. Rawls contrasts with Kant, which opposes the public reason of the scholar??or the philosopher??, who speaks before the world, to the private reason of state or church officials. The later, once they accept an authority, cannot think by themselves (selbst denken). A closer examination shows that Rawls is not so far from Kant as it seems, because he takes the constitutional judges not as they are, but as they should be. However Rawls still apparently refuses Kant??s unity of reason. Further investigation of the relations between ethical reason, democratic reason and legal reason is needed. Democratic reason is tantamount both to public reason and to legal reason in a modern constitutional state. It is a requirement of ethics but still not identical with ethical reason, since it is possible to accept democratic reason and to argue against it from an ethical point of view. There is just one good way of reasoning, in spite of the constraints that the sources of law and the rules of procedure impose on legal reasoning, compared with ethics. Such constraints are based on the democratic principle, which is again based on ethical reason, which at last both grounds and limits the constraints that law imposes on reason.     

Promoting Whole-Process People’s Democracy Following the Rule of Law

Whole-process people’s democracy profoundly reflects the features of socialist democracy with Chinese characteristics, and comprehensively and systematically reveals the concept of people’s democracy as providing important mechanisms of national and social governance. Based on the traditional democratic understanding of democracy as majority rule, whole-process people’s democracy emphasizes the universality and extensive range of democratic governance, but also has the natural value defects of democratic value itself. Therefore, we must organically combine democracy with the values of the rule of law and human rights, to build a well-defined governance order based on people’s democratic value. The whole process in the “whole-process people’s democracy” has really resolved the situation of people’s “absence” from many links of state power operation caused by over-emphasizing the election-democracy in the Western capitalist democratic system. Through the people’s extensive participation and effective supervision, the state power operation mechanism based on the fundamental political system, the people’s congress system, has been ensured to be always in the framework of people’s democratic governance. This effectively realizes the people’s sovereignty and is consistent with the declaration that “all power in the People’s Republic of China (PRC) belongs to the people,” stipulated in the Constitution of China. To improve the governance efficiency of whole-process people’s democracy in practice, we must bring it onto the rule of law, and use the rule of law philosophy and methods to reasonably and effectively resolve all kinds of theoretical and practical problems.     

从村民自治领域的权利救济看统一公法学知识生产的必要性——从村民自治领域的两个典型案例切入

村民自治是中国本土政治法律实践的重要成果,但该领域大量的权利救济却很难进入国家正式的司法程序之中。“有权利无救济”的根源在于部门公法学知识生产的分散性,这导致对村民自治权的法律性质的判断以及村民自治内外权利救济缺乏有效的理论和制度供给。“统一公法学”提供了一种整体化的知识生产模式,针对村民自治领域的权利救济需求发展出“社会公权力”理论和“统一公法诉讼”理论。这种整体化的知识生产明显优越于原来的分散化的知识生产,对于最大化提供公法领域权利救济机制,并表达中国自身公法文明具有积极的理论和制度意义。