Legal Education
Multifaceted approach in legal education
Anisur Rahman
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Photo: bestphilippinelawyer |
Last month was quite economical to me in terms of bread and butter; attended three seminars and had had delicious foods in all the events. Especially in a government sponsored seminar there were plenty of foods and we couldn't help leaving much of them due to lack of space in our little stomach. Perhaps the authority did not know ours' size. Truly speaking, I was happy to get something from government exchequer with a feeling that I am realizing at least little from my paid income tax as well as value-added tax.
I owe a lot to the Brac University for its generosity. It is ritual, you know, to say something in favour of the topic of a seminar. At least one should not oppose the proposition completely; some time one will not be tolerated, especially in a seminar organised by a donor agency as it costs them a lot. The contacting person may loss the job for his/her wrong choice!
How come a newcomer of this world would know the rule of the fixed- match? There is no Harts' (1961) secondary rule to inform a newcomer too. As a result, I strongly opposed the proposition of the Brac Seminar in favour of clinical/case based legal education. I am grateful that my lunch had not been denied as I was not much obliged to the fixing-rule!
It's time to put my thinking about the legal education into words.
I came across, several times, few communications in this page which advocated for reorganising our legal education as well as for making it more object oriented. In addition, they were advocating for case based method of teaching with a view to prepare our law graduates for the court; to be straight to produce lawyer.
My opposition, with due respect, is on this point of producing lawyers only. Is it the goal of a university to produce good lawyers? I think we are narrowing the field of legal education by setting our objective to produce lawyers. Instead our objective should be of producing good researchers with vast knowledge on genealogy of law.
In brief, the clinical legal education was introduced in USA at the beginning of the 20th century when the realist theory being 'law is something said as well as applied by a judge' came into being. Zerome Frank, who was one of the fathers of the realist school of legal thought, was also one of the proponents of this case based legal education: nothing will be considered as law until it is applied by the judges in the court. Therefore, judges are, in reality, the law maker or law giver.
The British Colonizer, perhaps, had imported this idea of 'judge made' law in India in the guise of judicial precedent. Application of the decision of the superior court in Indian jurisdiction, one might say, is a colonial invention. This blind imitation of the decisions of the colonial masters has simply refrained one to question the rationality of their decisions.
I just discover, few months ago, that judicial precedent is one type of codification of law: publication of the decisions of the superior court had served the necessity of codifying law in the colonial India until the formal codification of laws came into being. To be specific, codification of laws had taken place in India by two ways: by establishing law commissions from 1833 onwards and through publication of the decisions of the superior court, i.e. Privy Council. Our legal historians did not do justice, unfortunately, on the latter type of codification.
As a result case based study of law was encouraged to memorise the idea of law or legal interpretation of the colonial judges without any question. It is to remind us that case based study of law generates 'censored' knowledge, which leads to ignorance. And of course ignorance always leads to belief what is not.
In this case based study of law one will be deprived of knowing the history behind the interpretation of law or rationale behind the application of a rule. For example many of us do not know the history as well as rationality of promulgating such a draconian Penal Code (1860) for Indians. Even, many of us do not know that the unofficial British citizens in the colonial India were enjoying indemnity for many offences described in the Penal Code.
I often come across another serious appeal for human rights based legal education (so far I can recall at least two essays had been published in this page). That brings serious concern in my mind that is our legal education producing animal who is not human being! [Khan (2012) popularises the idea that human beings are one of the revolutionary species of animal who can talk]. In that case we have to think twice of our present education system as a whole.
But do we know the other side of the coin? Have we ever thought of cultural and political domination which is embedded in the human rights movement? The problem is that we often interested in history; history tells the truth which, sometime, makes many of us discomfort.
Ours is 'black letter legal study' which includes reading legal texts, interpreting statutes and commenting on judgments of the superior court. Our legal education did not do justice, like my university teachers, to the legal history. Nor do they consider law as one of the species of social science and try to establish inter-relation between them. What I mean is to necessity of the multifaceted approach in the legal education.
David Washbrook (1981) has called for reinterpretation of colonial laws by arguing that the objectives of the colonial laws were to extract revenue as well as establish political domination. Upendra Baxi, one of the Indian legal luminaries, too has done an extensive work on law and pattern of class power which leads to authoritarian application of the law.
Therefore, the goal of legal education should not be confined to produce lawyers only. Instead of, we have to consider law as one of the disciplines of social science and have to encourage inter-disciplinary legal education. A law graduate must know the economics, sociology, anthropology, political theory and so on to understand the nature of law. Lest we forget that these graduates will be the interpreter of the law tomorrow.
Perhaps, we can set the goal of our legal education to produce rebellious lawyers in the sense that the law graduates will question the application of the law; often the law itself.
The writer is Assistant Professor, Faculty of Law, Eastern University.
