I’ve spent a fair portion of my time this semester exploring around the law. That is, instead of taking purely substantive law courses, I’ve been studying issues regarding legal theory and law and society. So far, it has provided me with much appreciated perspectives on the project of the law and its relation to social change.
It is easy to become cynical over the idea. Some of us come to law school with high hopes of shaping the future, only to be disillusioned by how little impact any one individual has through the practice of law. But I’ve come to the conclusion that it’s not really through law where social change happens. Developments in the law merely reflect the direction of where society is heading. Social change happens through the ongoing discourse between concerned members of society; a re-enactment of that discourse occurs once it broaches the law, either through the courts or the legislature. As lawyers, we serve as advocates and translators to turn social change into legal reform. In order to affect change, then, it is important not to look at the law as a set of rules and principles that purport to govern society, but as a reified entity that impacts the ways we exercise our autonomy. Insights from interdisciplinary approaches on this stubbornly autonomous field can enable us to understand how the law interacts with society.
Social change is inevitable. The same goes for the direction of which change occurs. Anyone who has studied the history of Western civilization will know that change is reactive, that social movements build off each other, and that new ones arise to counter the old ones that have run out of value. It is also cyclical in the sense that although scientific and technological advances move us forward, the core as to what makes us human does not change. The resultant cultural discourse is thus between changes in society and our human experience within it. It is what allows us to pull on insights from the great thinkers of the past and present and appropriate their ideas to help shed insight onto contemporary social issues. It is what will allow us to bridge the gap between societal concerns and the law. It is how decisions like Bedford come about and how the Carter appeal to the Supreme Court of Canada presents the very real possibility that the Court will overturn its two decade old Rodriguez decision on assisted suicide. Social change is going to occur; conservative social values preserved in law are going to be replaced by more liberal, equality- and sustainability-oriented principles. It is only a matter of when, of how long, and if we want to be in control before something happens that makes that decision for us. I am not making an argument for radical autonomy, but for socially-minded concern for all members of society.
Recently, my Jurisprudence class has been working through the Hart-Fuller debate and what it means for the rule of law. For those of you unfamiliar with the debate, it concerns the connection between law and morality, explored through the context of Nazi Germany. Hart argued from a legal positivist standpoint that law is devoid of morality; that is, there is a difference between what the law is (norms recognized and enforced by the governing body) and what the law ought to be (norms that are just, based on their merits). Fuller, on the other hand, argued that legality only exists when the governing body adheres to the internal morality of law that allows us to govern our interactions with clear reference to the legal rules that order society. On this point, the legitimacy of a legal system breaks down the more the law becomes opaque, since members of society can no longer be sure of what law is that governs them.
Morality finds its way into law because if the governing body adheres to Fuller’s principles, then it would be unable to enact grossly unjust laws without resorting to force to uphold them; members of society would not stand for them, and rebellion would ensue. Putting in place procedural justice that recognizes all members of society as rational agents pushes a governing body into passing laws that result in substantive justice, since it allows us to engage in a discourse as to what we want the substantive law to be.
To an outsider, however, regardless of how well our legal system adheres to the internal morality of law, the law can appear opaque, resulting in issues of access to justice. Drawing on Kafka and discussions from my Law & Literature class, a couple of insights can be gleaned. Most of Kafka’s work focuses on the individual’s struggle to receive validation from society. What his protagonists are concerned with is being acknowledged as a person with rights. With respect to the law, the only option outsiders have is to struggle through it, since it is the only avenue where justice can be achieved. For Kafka’s protagonists, there is no resolution—justice is perpetually unachievable.
Take, for instance, Josef K. in The Trial. He is unexpectedly arrested by unidentified men of an unidentified agency for an unspecified crime, tries to navigate the bureaucracy of the legal system, and is informed by a lawyer how dire and hopeless his situation is. He becomes consumed with worry over the trial and tries to take matters into his own hands without success. He is eventually stabbed in the heart by the two men, muttering the last words, “Like a dog!”
A few things stand out to me. Firstly, the lawyer in the novel was unable to provide sufficient legal assistance to Josef K.’s case. This is in no doubt a reality for some litigants, who can spend thousands of dollars on a lawyer without even the filing of a statement of claim. Secondly, the legal system is unnavigable because there is no easy access to information regarding its proceedings. This is also something citizens can struggle with, especially in some tribunal settings. Finally, Josef K.’s last words can indicate his perception on how he was treated. Without ever achieving access to the legal system, without ever being provided reasons, he was not conferred the status of a human being. His rights as a rational agent were never recognized. How can we ever be certain the governing body in The Trial followed the rule of law if we never know what the rule of law is?
So what does this all mean for us future lawyers who have aspirations of being a part of social change? We can be actively involved in exchanging stories in a way that ensures everyone participating in the trade is treated as a rational agent, with equally valid perspectives and modes of being. If we are to adhere to the rule of law, we should encourage participation in the substantive debate of what the law ought to be. But when parties are not viewed as equals, there is a resultant loss that occurs where the greater party claims victory over the lesser, whether the debate, for example, is between economic freedoms versus social rights or religious liberty versus equality.
Through my Law & Film class, I witnessed this type of struggle in the film The Journals of Knud Rasmussen, which depicted the victory of Christianity over traditional Inuit spirituality. What caught my attention was how formalized institutions can consume story-oriented, meaning-rich activities. No doubt the humanities have paid attention to narrativity in recent decades, given the loss of a unifying meta-narrative with technological progress and the advent of globalization. Greater attention is being placed on understanding the perspectives of others instead of treating them as other and not acknowledging their rights as human beings.
As advocates of justice, our responsibility is not only towards individual clients, but to society as a whole. It may be true that each of us individually can do very little, but by participating and instituting processes that speed up how quickly social developments are translated into law, we can bring about social change a little faster so that the law approximates our collective idea of what it should look like.