By Omar Madhloom, University of Bristol Law School
Many law firms now not only have dedicated pro bono departments, but also engage in pro bono in other jurisdictions. Broadly speaking, pro bono is the provision of legal services to individuals or groups who do not have the means to enforce their claim rights. Violations of human rights are now able to affect every member of the global community, and globalization facilitates human rights issues. Consequently, there is a global language of morality which includes the concern for justice, which inevitably extends to a discussion over protection of human rights. The question, therefore, is how to teach and train future lawyers to identify and respond to global injustices? One answer to this question is by embedding human rights education into Clinical Legal Education (CLE).
This blog is based on work co-written with Dr Irene Antonopoulos. The first was published as a book chapter (an early draft is available here) and highlights the limitations of the doctrinal method. In this chapter, we argue that this method suffers from various constraints in relation to developing into effective reflective practitioners, such as not preparing law students for the complexities and uncertainties of legal practice. To address some of the limitations of the dominant approach in legal education and to develop students’ reflective skills, we suggest introducing human rights education, namely the Universal Declaration of Human Rights (UDHR), into CLE.
There are two main reasons for incorporating the UDHR into CLE in order to develop reflective practitioners. Firstly, The skills and knowledge to address global problems are dependent on the attitudes and values that underpin a student’s future practice. Values are principles and beliefs that motivate or guide a person’s or an organisation’s behaviour. Being a member of a global community of legal practitioners requires a common desire to respond to global issues and concerns. However, legal education in England and Wales is lacking in a value-based approach due to it the influence of positivism. This form of legal education ignores the fact that international documents such as those of the UN and the European Union stress the importance of a value-based approach to professional activities (Council of Bars and Law Societies of Europe). Recognising these universal values for the global reflective practitioner requires identifying their source.
In its Preamble, the UDHR states that ‘recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world’. Largely uncontroversial in its provisions, the UDHR creates an accessible introductory framework for students to apply to their studies when reflecting on their own attitudes and practice, thereby introducing normative concepts. While the UDHR is a non-legally binding document, it omits legalistic language and instead creates a set of moral rights and duties. Despite the lack of legal sanctions for non-compliance with its provisions, the UDHR makes the protection of rights, free from discrimination on any grounds, a priority for all nation-states. Teaching students to reflect on the values promoted by the UDHR provides students with a sense of global citizenship in relation by reflecting on the protection of human rights as they enter their professional lives as practitioners and policy makers.
What does it mean to engage in reflection? In the context of professions, including law, the capacity to engage in reflective practice is a means of enhancing the quality of the work and prompting learning and development through a continuous reflexive process. Emergent professionals, such as barristers and solicitors, enter practice and are effective despite not having had formal training on how to reflect. They develop practical experience and professional knowledge, which includes propositional knowledge acquired to enter their chosen profession. To engage in their practice areas effectively, an additional element is required. Donald Schön observes that, traditionally, professional legal education has been based on a model in which practitioners are instrumental problem solvers, rather than problem setters, who select the technical methods best suited to particular purposes. An element which can promote reflective practice by focusing on client dignity is the UDHR. An optimal methodology for teaching human rights values is through CLE. This methodology allows students to reflect on their experiences with their peers, the (global) community, and the impact of law on their clients. Embedding human rights within education has been supported by the United Nations General Assembly, which suggested the adopting a human-rights-consistent teaching style in order for students to learn ‘tolerance and respect for the dignity of others and the means and methods of ensuring that respect in all societies’. Thus, embedding UDHR into CLE can develop students’ reflective practice by providing them with the opportunity to incorporate human rights values when engaging in analysis of the law and their professional duties.
The second reason for using the UDHR in CLE is that it can allow students to identify and address global threats to human rights. The advantage of this pedagogic approach is that it can promote the student’s reflection on injustices outside their jurisdiction. CLE, which is considered a global movement, is an optimal methodology for teaching students to reflect on global threats and violations to human rights. However, the difficulty with educating students to identify and address human rights violations in other jurisdictions is that legal education and training in England and Wales is predominantly a domestic undertaking. To overcome this challenge and promote transnational law clinic collaborations, Dr Antonopoulos and I explore the theoretical foundations for a social justice–centric global law clinic movement. Our starting position is that law clinics are in a unique position to engage in, and potentially promote, social justice issues outside their immediate communities and jurisdictions. To achieve this aim, it is necessary for law clinics to adopt a universal pro forma underpinned by the key concepts of CLE, namely social justice education and promoting access to justice through law reform. We argue that the main features of CLE are aligned with those of the UDHR on issues such as human dignity and social justice. Incorporating UDHR values into CLE serves three purposes. First, it acts as a universal pro forma, which facilitates communication between clinics across jurisdictions, irrespective of their cultural or legal background. In other words, the UDHR provides a set of core values that clinics can ascribe to. Second, it allows clinics to identify sources of global injustices and to share resources and expertise to collectively address human rights violations. Third, as moral communities, clinics have a (Kantian) moral right to engage in law reform.