Nothing is so practical as good theory. ~ Kurt Lewin
When Public Legal Education (PLE) began to take shape in Canada, it was an innovative, disruptive form of legal service. We were definitely thinking ‘outside the box’. So far out, in fact, that the mere thought of educating the public about the law was threatening to the legal establishment. Over time, PLE has come to be seen as an essential legal service. In the process, though, PLE’s unique potential to expose injustice, promote social justice, and enhance confidence in our legal system has been compromised. How did that happen?
While there are many answers to that question, one of the most fundamental is that we have not paid enough attention to the theories that are implicit in our work. To capture the full potential of PLE, we need to make those understandings explicit and to challenge their utility. Why are we doing what we are doing? Are we making a real difference or are we propping up a system that is increasingly losing its ability to cope – and even its legitimacy? What role can we play in transforming our legal system into a justice system?
Photo Credit: Alexandra Hunter
Let’s start by reconceptualizing PLE. Consider this metaphor:
Public legal education exists in the terrain that overlaps the space occupied by the public on one side and the space occupied by the legal community on the other. In ecological terms, PLE is an ecotone, a fertile zone that lies between two biological communities. It has attributes of both as well as its own unique features. PLE providers are the amphibians that can live within both the public and legal communities. We have unique opportunities to learn from and communicate with both. An ecotone is also a zone in which biodiversity flourishes and different forms of life learn to live together. What if we could harness that potential!
So much for metaphors…
An interdisciplinary field, PLE draws both theory and practice from a host of other disciplines, not just law and education. Keeping up with developments in this extensive range of knowledge is impossible for any single organization but collectively we have a lot of capacity. I suggest we harness that capacity to take a hard look at some of the theories that constrain our ability to, again, think outside the box.
Theorizing the Public: Who we serve and why
The public in Public Legal Education has, for the most part, been an untheorized aspect of our practice. In the early years we quickly realized that there was no such thing as the ‘general public’ but rather, numerous ‘publics’ with quite different needs and learning preferences. So, we worked with tenants, or inner-city agencies, or librarians, or whatever group presented us with an opportunity to help people better understand their legal circumstances. It wasn’t long, though, before we were called upon by funders to focus our services on publics variously identified as vulnerable or marginalized. More recently, PLE agencies have been urged to help to relieve the crisis in the courts by providing information to support self-represented litigants.
But meeting the needs of the public as consumers of legal services has been accomplished largely at a cost of programs and resources that would help them perform their roles as citizens. Few programs are funded to support law-related education in the schools. Where are the community-based programs that help people understand how the system works and why it produces the results it does? LawNow is one of the few services that provides context for, and explanations of, contemporary law-related issues. But it wasn’t always so.
PLE is well-positioned to work with community members to co-create knowledge that goes beyond what is captured in formal legal knowledge.As we lost funding for citizen development and engagement activities, the media resumed its role as the primary source of the public’s information about our legal system. As a result, public understandings often hang on media accounts of high-profile, often sensationalized, legal cases. Couple these stories with personal experiences in dealing with legal matters and a distorted picture of our legal system emerges and becomes popularized. Misinformation breeds distrust leaving our legal system, a fundamental institution of democracy, vulnerable to reactionary ‘reforms’ and to cutbacks to its critical infrastructure. Why should governments pump resources into a struggling legal system if the public doesn’t believe it is accessible or operates fairly?
Realizing PLE’s full potential surely includes reactivating its vital role in citizenship development and engagement. What could this look like? Models exist. It is timely to revisit them.
It is easy to grasp PLE’s mandate to enhance the public’s understanding of the law. It is more difficult, and, perhaps, counterintuitive to see that PLE can also play a role in helping the legal community understand the public’s needs and interests, and more significantly, understand the impact that the law has on the people it is meant to serve. Remember the ecotone!
Which leads to problems with the concept of law that lies at the base of most public legal education.
Theorizing Law: What law? What justice?
From its beginnings, PLE has reflected the positivist understandings of the law that were prevalent at the time. While HLA Hart did not publish his The Concept of Law until 1972, his three features of a modern legal system consolidated positivist understandings of law that were largely taken for granted by then. I reference his work because in it he made claims about modern legal systems that explain why legal positivism has had a firm grip on our imaginations.
The presence of both primary and secondary laws
Hart argues that a modern legal system contains two types of laws. The primary laws are the laws that govern our activities. The secondary laws are the laws about the laws: how they are made, recognized, reformed, administered, and the like.
In the early years of PLE, we argued that people had a right to know the laws that governed their affairs – in effect, Hart’s primary laws. Our programs and services focused on the day to day legal problems that people had, how to prevent them, how to recognize that they had a legal dimension, and how to get help. This rationale is captured in the report of The Action Committee on Access to Justice: Prevention, Triage and Referral Working Group.
We promised our sceptics that we had no intention of turning people into their own lawyers, so Hart’s secondary rules were off the table. Well, mostly. Some of us did teach people how to read statutes, participate in court proceedings, and the like. But other PLE providers saw this as inappropriate for their clientele. Ironically, as I have already noted, we are now called upon to help self-represented litigants make their way through the courts.
Realizing PLE’s full potential surely includes reactivating its vital role in citizenship development and engagement.But whichever position a PLE group takes on providing help with secondary laws, most PLE groups still work from a positivist understanding that the law is the body of knowledge that is understood and developed by people who inhabit the legal realm.
Thinking outside the box means re-conceptualizing the ‘legal’ in Public Legal Education to include other understandings of the concept of law. Whose understanding of law counts? Not just people within the system but people outside it? How is it experienced by people? What about the vast amount of discretion that is exercised both formally and informally by people in the system? What about critiques of the law? Alternatives remedies? Once we free ourselves from understanding law as being what lawyers, judges, and police know, we will begin to experience the creative potential of our ecotone!
The existence of a special class of people who understand the secondary laws
Hart saw the secondary laws – the laws about laws – as the real indicia of a modern legal system. These laws would be sufficiently complex that a privileged group would need to be trained and trusted to apply them. In Canada, this is reflected in the monopolies that law societies have to determine who is qualified to practice law in their jurisdictions. Knowledge of the secondary rules is hard won through law school, articling and practice. Law societies have been very reluctant to allow the type of paraprofessional stratification that we see in health care.
Well, the number of people who now represent themselves in court challenges the Hartian view that only lawyers need to know and should have access to the laws about the laws. The increase in self-representing litigants has revived consideration of the potential roles for legal paraprofessionals. Do all legal matters require the attention of lawyers? Lawyers don’t even practice in all areas of the law. Who helps people whose legal problems need more holistic solutions? Or even non-legal solutions? In their report, “Community Justice Help: Advancing Community-Based Access to Justice”, Julie Matthews and David Wiseman recently tackled issues involved in allowing legal paraprofessional to provide some forms of legal services under certain conditions. Is this the start of something bigger? Where would PLE fit?
The separation of law and morality
Perhaps most vexing for PLE is the positivist separation of law and morality, or more commonly, law and justice. When PLE began, we spoke of access to the law or to the legal system – which is what we were all about. However, in the mid-seventies, the expression, access to justice, became more popular. But in conflating law and justice, the expression implies that access to the legal system provides access to justice. It isn’t so. Our legal system makes no apology for the fact that judges are not charged with dispensing justice. The test of the validity of their decisions is the appropriateness of their application of the law to the facts before them. They do not rule on how fair the laws are or on the justness of their decisions. The only form of justice that our system holds out is procedural justice – and even that is compromised by the real limits in the ability to get your day in court.
An interdisciplinary field, PLE draws both theory and practice from a host of other disciplines, not just law and education.As this might suggest, much of the contemporary ‘access to justice’ activity focuses on improving access to legal advice and representation and on streamlining access to the courts. However, the focus on access to justice opens a window of opportunity for PLE to engage the public in discussing the kind of justice we and want – formal justice, substantive justice, social justice, restorative justice? What are the options? PLE organizations are well-positioned to bring together stakeholders to critique the legal system and expose injustices. Critical theorists have provided us with forms of analysis we did not have when we were launching early PLE programs. Times have changed, and we have new tools to work with. Let’s use them.
Legal positivism is still the dominant concept of law embedded in our legal system. But contemporary challenges to a Hartian understanding of the concept destabilize it and create opportunities to give the ‘legal’ in PLE other meanings.
Theorizing Education: New ways of knowing
Programs focused on providing legal information tend to adopt the ’empty vessel’ or ‘banking’ theory of education. One party – the expert – has the knowledge and the other party – the recipient – does not. Information travels only one way. But educational theory and practice offer other ways of knowing and other knowledge domains. PLE is well-positioned to work with community members to co-create knowledge that goes beyond what is captured in formal legal knowledge. How do publics perceive our legal system? What have they learned through their encounters with the system? Does the system work the way people in the system think it does? And what is the actual impact of the law on the lives of people? Co-created knowledge expands what counts as legal knowledge and whose knowledge counts. It gives us a way of engaging diverse perspectives on what our current legal system looks like and what it would take to make it more just.
In raising these challenges to the theories that guide much of contemporary PLE, I do not mean to trivialize the importance of the service PLE organizations currently provide. Nor do I mean to suggest that theorizing is easy. It’s not. But it is work we have to do if we want to advance access to ‘justice’ not just access to the legal system. Nothing could be more practical!
About Lois Gander
