Personalized or bureaucratized justice in legal services: Resolving sociological ambivalence in the delivery of legal aid for the poor

This paper examines and tests some of the claims about the professional autonomy of attorneys working in a bureaucratic environment. Following an analysis of the concept of professionalism across various types of attorney practices, data are offered to explore how attorneys who provide legal services for the poor resolve the potential conflict between bureaucratic demands and personal or professional autonomy. The data, which consist of attorney time sheets covering some 2284 separate legal tasks as well as in-depth personal interviews with 23 attorneys, reveal some difference between actual practice routines and perceived personal autonomy. Implications of this for the delivery of legal service are discussed. The paper concludes that although the conflicting demands of legal services practice might lead to sociological ambivalence, as long as the attorneys do not perceive themselves as bureaucratic service deliverers but as autonomous professionals, there is little manifest ambivalence. Developing an adaptive strategy to avoid sociological ambivalence, attorneys see themselves as individual service providers, personalizing the justice they deliver.A lawyer is a lawyer-but only to a pointAn earlier version of this paper was presented to the Midwest Political Science Association Annual Meeting, Milwaukee, Wisconsin, April 28–May 2, 1982.     

Explaining crime in developing countries: The need for a case study approach

The relationship between crime and development typically has been investigated within the theoretical umbrella of three dominant frameworks (modernization, underdevelopment, routine activities) and by the analysis of cross-national, statistical correlations between developed and developed countries. We outline the empirical, methodological, conceptual and theoretical weaknesses of these studies. The categories developed and developing are invalid when studying crime and change and the defects of existing approaches can only be overcome by a case study approach to the relationships of patterns of crime in different countries.     

Youth violence in South Africa: the case for a restorative justice response

Crime presents a fundamental challenge in South Africa. Particularly disturbing is the prevalence of violence committed by and against young people. The main purpose of this article is to look at how South Africa should deal with the issue of youth violence. It argues that while structural violence constitutes a significant contextual cause of the phenomenon, a more proximate and specific cause lies in young people’s exposure to direct violence in their schools, homes and communities. In many cases, therefore, simply sending young people to prison – where they may experience even greater levels of violence – is not the answer. This article thus examines the potential merits of restorative justice as a response to the problem of youth violence, focusing particularly on the 2009 Child Justice Act. This research is based on fieldwork in South Africa and draws upon both the author’s qualitative interview data and a range of surveys with young people conducted by the Center for Justice and Crime Prevention in Cape Town.     

Access to justice: a new approach using human rights standards

This article details a trial of a new approach to measuring access to justice that utilises human rights instruments as the reference point. It involves an examination of people's actual experience of the justice system using human rights standards as the benchmark. The research project selected the right to income security. The project trialled a range of methods gathering data about how people have been treated in the Australian social security system and how they would expect to be treated if there was a human right to social security in Australia. This data is assessed against the set of standards developed to measure the enjoyment of the right to social security. The trial suggests that without knowledge about human rights and legal rights, without the confidence to exercise those rights and without the capacity or capability to seek or find help it is unlikely that people will realise their rights and accordingly access to justice is placed in question. The research methodology has the potential to be a useful model to conduct further access to justice research.     

Public investment in private problems: legal aid and the family justice system

This paper examines findings from the Legal Aid Board Research Unit's Case Profiling Study in the light of the current reform programmes for both legal aid and family law. The findings relate to over 650 legally aided family cases including divorce, separation, ancillary relief and Children Act 1989 applications. The main aim of the study was to gain a better understanding of what is currently funded by the legal aid fund. Costs have been related to stages of cases and to the strategies employed by solicitors. Finally, I comment on the future role of legal aid in family law, suggesting that, to a large extent, public investment will be maintained. Remuneration of service providers will evolve as systems of contracting are introduced in January 2000. There will be continued emphasis on family mediation as an alternative method of dispute resolution. However, cases involving issues relating to children and their welfare will remain within the scope of public support. Domestic violence and other emergency issues will also merit high priority. Although there will be extensive changes in other areas of legal aid, family law appears to remain relatively unscathed.     

DNA evidence in South Africa: Lessons learned to date

A trend was noted over the past 15 years in the South African courts. This trend has a multi-factorial origin and highlights the problems faced in the use of forensic science evidence in court. Although there have been improvements on how DNA evidence is gathered and presented in court, due to the fact that certain cases have been contested at the DNA evidence level, multiple issues remain that have not yet been addressed when DNA evidence is submitted to court. These issues include: accreditation, regulation of the forensic science profession, continued education, training of court officials, quality assurance, biased testimony, lack of transparency with regard to processes and procedures followed in the forensic community, incorrect interpretation of DNA evidence, lack of scientific knowledge (including the scientific method) by DNA experts, awareness by the legal profession and an over emphasis on the prosecuting perspective. These same aspects continue to plague current cases. Despite the above, the window of opportunity to address the above has not yet passed. However, it will take continuous and concerted efforts from the scientific and legal professions to bring about the appropriate change to facilitate justice for all in South Africa.     

Criminal justice response to human trafficking in Nigeria and South Africa: suggestions for better performance

This article evaluates the response of the criminal justice system of Nigeria and South Africa in relation to human trafficking, and offer suggestions on pragmatic steps that can be taken to combat its scourge. Over the years, concerted efforts have been made to develop effective, and internationally coordinated approaches to combat the phenomenon at the national, regional and continental levels, but unfortunately, such conscientious have not yielded the desired results. Nigeria and South Africa have criminalised the menace by enacting anti-trafficking laws, but these regulations have not been able to adequately stem the tides of the crime, considering its rising profile in recent times. The reason (among others) is essentially due to the fact that these laws are selective, and not all-inclusive. Policy makers in both countries are merely formulating and adjusting strategies on an experimental basis. Though there is improvement in inter-agency cooperation within each country, but there is a wide gap in cross-national cooperation. The author draws on evolving international standards to propose six fundamentals of an effective criminal justice response to human trafficking that can be adopted by these two countries.     

Courting Custom: Regulating Access to Justice in Rural South Africa and Malawi

The continued relevance of customary law for the regulation of the daily lives of Africa's citizens poses serious governance challenges to sovereign states, such as how best to regulate customary dispute settlement. While confronted with largely similar problems, the South African government proposed to enhance and regulate the position of its traditional courts, whereas Malawi has opted for the creation of hybrid local courts that combine characteristics of regular state courts and customary fora to be the main avenue of customary law cases. This paper analyzes the strengths and weaknesses of both approaches and displays how the two countries’ historical and political contexts enable and constrain their regulatory choices in the field of customary dispute settlement, as well as influence the risk and benefits of the various options. In this respect, the political power of the traditional leaders is a significant determinant.     

An access to justice approach to mediation and the construction of positive legal professional identity

Research indicates that practising and teaching alternative dispute resolution may reduce the prevalence of mental health issues within the legal profession. This paper builds on these findings by arguing that an approach to mediation focused on access to justice, of which social justice is core, will enhance positive legal professional identity. This approach, which is yet to be trialled, values equality of access and achievement of just outcomes. It does not over-privilege neutrality and self-determination and also values the positive role of law within society. The paper outlines the nature of an access to justice approach to mediation, and explores how this approach may be challenged by the more traditional and fundamental values of mediation, namely, neutrality and self-determination. In addition, it discusses the approach in light of the provisions of the Australian National Mediator Accreditation System (NMAS) Practice Standards and explores the relationship between the access to justice approach and positive legal professional identity. Overall, it discusses the importance of an access to justice approach to mediation in legal education and lawyering and explores the relevance of that approach to promoting social justice, wellbeing and positive professional identity.     

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.