Is ‘activist lawyer’ an oxymoron?

When I first entered law school, I wanted (maybe) to be a lawyer but I was more interested in the ethical questions and political issues that the law inevitably involves. I think this is why a lot of people are drawn to law.

This isn’t going to be a piece about corporate careers versus social justice alternatives (although I have opinions on that, too). Rather, I want to talk a bit about the inherent bias within law schools as institutions that create lawyers, about the kinds of discourse on ‘social justice’ issues that are promoted and deemed acceptable, and how they limit and regulate what more (openly) socially and politically progressive law students might do with their legal knowledge.

I recently did quite an interesting and thought-provoking course at my law school on public interest litigation. Public interest litigation is a broad term that incorporates many discrete areas of the law in Australia and abroad. Australia does not have a constitutional bill of rights (excluding the legislative rights charters at the state level in Victoria, ACT, and the Human Rights (Parliament Scrutiny) Act 2011, the effectiveness of which is ambiguous due to parliament’s ability to override these pieces of legislation). Our rights are limited to those found in legal precedent, legislation, international treaties and conventions, legal norms (rights to property), the Federal Constitution (if you look hard enough) and so on.

Public interest litigation (or ‘PIL’) is about using these areas of law to achieve human rights for your individual client or claimant group. A working definition of a matter where PIL could be used would be one that ‘affects a significant number of people, or raises matters of broad public concern, or impacts on disadvantaged or marginalised groups.’

But what the public interest is – and, perhaps more importantly, who is defining it – is contentious. For example, there have been a large number of religiously-affiliated amicus curiae in American reproductive rights cases, involve submissions about the foetuses’ right to life in the name of the public interest.

In the profession, there is a lot of disdain about the term ‘human rights lawyer’ because of Australia’s dismal ‘rights’ landscape. The question is debated hotly: can you be a human rights lawyer in Australia – or anywhere, for that matter?

That’s what my course was about: essentially, How to Be a Human Rights Lawyer in the Australian Context 101.

But it was not really what I had hoped for when I enrolled. I had secretly wanted it to tackle the question of whether it is possible to be an activist lawyer.

There is a small but noticeable minority of law students deeply frustrated at the lack of critical engagement with human rights as a norm in law school discourse and pedagogy. Many law schools have a liberal outlook on human rights and are involved in promoting human rights discourse, its relevant institutions such as the United Nations, European Court of Human Rights, UN treaty bodies, etc.

Law schools can be accused – and I think rightly – of limiting the way students conceptualise oppression, offering human rights as the only solution for rectifying abuses of power and systematic inequality, rather than as merely one framework of many for critiquing entrenched inequality. We are rarely taught how unquestioningly accepting human rights as a complete project provides an imperfect and perhaps flawed way of addressing structural violence.

I am not opposed to human rights, but I am opposed to turning human rights into a hagiography of treaties, accepting the concept as a kind of academic religion. Dean Spade – lawyer, trans activist and professor at Seattle University School of Law – has written often about how the language of human rights and public interest litigation has co-opted social movements, convincing minorities that they must ‘wait out’ oppression until the right political moment presents itself. The human rights paradigm has prevented many of us (within and outside of the legal academy) from seeing globally entrenched and sanctioned subordination as anything more than a set of particular incidents of discrimination (as discrimination law requires). The institution of human rights and the ways in which human rights are taught has prevented us from building social and political movements that value community above atomistic, individualised and Western notions such as the security of the person and rights to privacy, ideas that have often been utilised for libertarian ends.

Although I largely enjoyed the learning experience and class discussions, I found in my public interest litigation course that it can be near heresy to question the inherent value of pursuing aims under the specific guise of ‘human rights’.

Many law schools have succeeded in silencing and (almost) entirely removing Critical Legal Studies.

Though multiple definitions of Critical Legal Studies exist, the scholar Mark Tushnet provides what he calls the ‘most plausible’ one: it is, he says, the ‘political location for a group of people on the Left who share the project of supporting and extending the domain of the Left in the legal academy.’

Essentially, Critical Legal Studies and Critical Race Studies (the latter drawing on Critical Legal Studies and civil rights scholarship) involve an acknowledgment that law is politics by other means. These approaches have given us some of the most talked about ideas legal scholarship has ever produced (intersectional feminist theory being merely one of them).

In failing to make room for such answers to the questions students raise about global inequality, racism, sexism, homophobia, and poverty, law schools have also nearly erased the contributions of many people of colour in the legal academy, particularly women and LGBTI people.

Within the academy, human rights has a level of racialised, elite credibility that Critical Legal Studies and Critical Race Theory do not possess, with these now viewed by many as US ‘fads’ that peaked in the seventies and eighties.

I think this is ridiculous. As a final year student I have seen a good portion of students come and go from different law schools with a passion to use their degree for ‘something worthwhile’. Many of them are seeking out what is increasingly known as ‘alternative’ career paths. They are passionate about using their degrees for moral or ‘socially just’ means. In many ways our law school has embraced this passion, as well as profited from it. Yet many law schools have become proponents of the ‘human rights framework’ and in presenting this as the only way, legal or otherwise, to address inequality, they have failed us.

Perhaps the ‘activist lawyer’ question inevitably leads us down a path many in the legal academy and student body are uncomfortable with. We might just have to question the arbitrariness of our legal system and government, and confront why, even as lawyers working in such systems, we lack faith in the courts and in procedural fairness, the very things that are claimed to be the foundations of our legal system. As one student put it, we might need to realise our task may actually be one of ‘working ourselves out of a job [as lawyers]. But that’s a discussion we need to have.

Theo Kohler

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  1. Good article. I’m very disappointed though, to find little discussion of the fact that law courses themselves are extreme replicas of the disadvantage we see in society (ie – vast majority of law students are white and upper middle class), so any engagement in human rights dialogue is weighted down by this lived experience. Human rights law is often full of misguided, bleeding heart, middle class white lefty lawyers…or at least it was ten years ago, when I’d just finished law school and worked in the area.

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