2010 joint winner

How might a legal education enable students to contribute to the improvement of society?

Sitanta Ni Mathghamhna (Birkbeck College, University of London)

Before entering the second year of my LLB, I attended a weekend retreat on the topic of ‘Literature and the Law’ organised in collaboration between the law school and the university’s creative writing MA. At some point over the course of the weekend, one of the attendant tutors enquired as to why I had chosen to study law, suggesting it would be more usual for someone with an interest in literature to pursue an English degree instead of, as he perceived it, the arid highways and byways of legal discourse. As with many a fresh law student (myself included) he was slightly perturbed to realise the common law is not laid out in immutable tracts, but is a malleable creature decided on a case-by-case basis. Subsumed within the, at times obscure, language of the court one finds not only legal fictions, but a trove of mini novellas crystallizing the mores and concerns of the day.

The role of the judge in these courtroom dramas is supposed to be confined to that of mere conduit, a cipher channelling parliamentary will and/or precedent jurisprudence. However, the myth of judicial impartiality, the idea that the court doesn’t make the law but merely interprets it, has been thoughtfully challenged by the legal realists and others including Hart, Dworkin and Rawls. Legal realism disputes the traditionally accepted manner in which the bench is assumed to resolve a case i.e. by looking at the law and then deciding how to rule. Rather, legal theorists averred, more often than not the judicature decided how they wanted to rule and then consulted the law to find statutes and cases which buttressed their opinions. Indeed one of the realists chief proponents, Jerome Frank, is credited with the adage that a judicial decision might be determined by what the judge ate for breakfast. Frank’s premise was far more nuanced than that, but he did believe a host of non-legal considerations impact on the decision process, including political opinions and assumptions about how people of certain races or appearance might behave.

As a central part of our legal education we are taught in a manner which fosters an awareness of such criticism of the law. I regard this as one of the most valuable aspects of a legal education, as it has helped me develop a heightened realisation of the contingency of human institutions and following on from that, fostered an ability to think critically and view the world from a multiplicity of perspectives. The study of law has highlighted something else for me too; the sometimes equivocal nature of humankind and the perils inherent in wilful innocence and assumptions of infallibility in our institutions and systems of government. These are invaluable insights and may be the reason why lawyers are disproportionately represented across the spectrum of public life.

Key challenges facing society

Economic, technological, scientific and medical progress have combined to render the twenty first century perhaps the safest age in the history of civilisation. People in the western hemisphere live longer and healthier lives in conditions of affluence unimaginable even to our recent predecessors. However the disintegration of traditional communities and the nuclear family, increasing mobility, high profile coverage of issues like terrorism and escalating access to desensitising content such as extreme pornography has lead to an enhanced perception of danger and alienation. Our world is one in which established moral narratives have fallen away and we exist under “a firmament no longer lit by the consoling beacon fires of the ancient hope” (JK Huysmans, A Rebours, Oxford University Press).

The ideological vortex combined with new methods of communication has rendered it easier for extreme ideas to spread and gain foothold. Hannah Arendt in her study of the trial of Nazi war criminal, Adolf Eichmann, developed the idea of the ‘banality of evil’. Arendt hypothesised that acts of immense wickedness are not necessarily executed by sociopaths, but by ordinary people who unquestioningly acquiesce in what they are told to do and thereby believe their actions to be normal. At one point Arendt noted of Eichmann ‘He did his duty…he not only obeyed orders, he also obeyed the law.” This power of The Law to act as a normative force, lending credence to iniquity, imbues it with danger. Paradoxically a legal education, with its emphasis on critical analysis and crucially self criticism plays a vital role in empowering individuals to question ideology and in so doing perhaps help prevent a repeat of the horrors of the 20th century, when under marmoreal skies from Mons to Kigali more lives were lost for less utility than at any time in human history.

Demagoguery, of a kind often little better than sophisticated extremism, still flares whenever threats, real or imagined, are perceived. Toward the latter half of 2009 an Iowan Senator, Charles Grassley, began pressing the US Attorney General to ‘unmask’ Justice Department lawyers who had represented Guantánamo detainees when they were in private practice. The lawyers identities were subsequently revealed by Fox news and the ‘Gitmo 9’ have become the target of a conservative group called ‘Keep America Safe’, who promptly released a video asking in sinister overtones “Whose values do they share?” To suggest the lawyers acting on behalf of the Guantánamo detainees’ advocated terrorism is the worst kind of sophistry. By taking on an unpopular cause they ensured deeply disliked individuals were allowed their day in court and that the Constitutional right to a fair trial upheld.

A legal education imparts an ability to see beyond the individual to the greater principle at stake and to question the effect of the means of punishment and detainment, however iniquitous the alleged crime, on society at large. Despite our sense of moral dispossession, in striving to uphold a sense of equity, to act in a manner adherent to an ideal of justice even when that ideal appears to be mocked by those whom potentially have the most to gain from it, can not only help ease the sense of being alone in the desert of man, but also plays an important role in ensuring the state and its institutions are held to account, which is perhaps the greatest legacy a legal education can bequeath to society.

Last Modified: 14 October 2010