The number of challenges that our societies face keeps growing, with new ones only being added on top of older, unresolved ones. Too little has been done to counter inequality, which has only been further aggravated by Covid-19 and the current food crisis. Whilst growing environmental degradation and the climate crisis have met an offensive war in Ukraine – where, next to all suffering, we are reopening coal energy plants and facing the threat of nuclear war.
A general scepsis as to the capacity of collective institutions to deal with any of these problems is growing throughout societies. Countering this scepsis, I believe, will crucially require societies to reclaim law as the core expression and vehicle of democratic government. For decades, we – legal scholars and teachers – have helped weaken the law by presenting it as ‘lagging behind’, as a feeble and inept tool of government, transferring thus much of its normative power into the hands of the most powerful market actors. We can, and have to, change this.
One way of reclaiming law as a tool of democratic government, which is both accessible and effective, is via teaching. This requires, however, that we teach law differently than we used to. In this blogpost, I argue that in response to mounting crises, legal teachers need to do three things. First, they need to demonstrate the democratic potential of law by making students privy to the diversity of legal institutions, social relations and individual motivations it can uphold. Second, they need to make clear that it is a possible, ambitious and laudable endeavor for lawyers to adopt a broad set of professional identities, values and responsibilities. Finally, underlining all of the above, legal teachers must adopt a concept of law that upholds it in a very specific, transformative sense.
Teaching Diversity in the Face of Adversity
The growing recognition that law – trade, environmental, administrative, or private – is complicit in many of the fundamental challenges we face is increasingly reflected in legal research. Yet, we law teachers face serious obstacles in incorporating such insights into our teaching.
The first obstacle we face is analytical; it is not easy to rethink any specific field of law in a way that would put, for instance, nature in its ‘rightful’ place. Doing so would require a rehaul of the very central propositions of law as developed in doctrinal scholarship. This may include rethinking what the proper scope of environmental law is, who the addressees of constitutional law should be or what the material substance and social relations upon which property and contract are based are.
The second obstacle we face is practical; even if someone wanted to undertake this Herculean task, such a rehaul would admittedly not rest on the strong legal and judicial foundations of more established approaches. This is all the more tricky since we cannot, and should not, relieve ourselves from the responsibility of teaching students skills and knowledge that still have purchase in courts, law firms and other institutions.
The way out of this conundrum, I argue, is to focus on teaching law as a repertoire of legal designs, legal institutions, market relations, political institutions, economic practices and personal motivations. This diversity should not only be taught via different histories or comparison, as is usually the case. Instead, we need to show the plurality of already existing alternatives in the very legal orders the students are studying. Both as a means of teaching students practical legal skills, as well as an eye-opener to the avenues of transformation.
For instance, in the field of private law (which I know best), we still teach in a very ‘non-diverse’ way, setting out only a small fraction of what is going on as ‘normal’ and relegating much of human ingenuity and motivations to the fringes. If you study property law, most of your time will be spent learning about exclusive and exclusionary property institutions, with little to no time being spent on public ownership or waste. If you study company law, 90% of your time will be devoted to limited liability companies and public corporations, leaving aside all kinds of cooperatives, social enterprises, ‘third sector’ or not-for-profits.
This balance needs to change. Teaching in this way performs the very world it ‘describes’, locking in unsustainable values and practices by making them look normal and natural at the very least, and socially desirable and excellent at the very worst. Genuinely expanding the repertoire of the possible ways of engaging in owning (commons, shared with others), or cooperative economic activity (via social enterprises or cooperatives), would instead enable students to appreciate a broader set of possibilities that they have as lawyers, citizens and humans. First, they can learn that they (and their clients) have the choice to relate differently to both other people and things. Second, they can come to appreciate that high profit margins are not necessarily the sole motivation for innovation, entrepreneurship or doing things together. And finally, they can gather that the right aspiration for life may be to seek meaningful, rather than just better paid, jobs. Or they may not learn any of those things. But the way we teach law should certainly not be the reason why they do not come to appreciate any of those things as possible.
Just to be sure, non-diverse teaching is not only the problem of private law or economic law (such as trade law). It has its very real versions in ‘public law’ as well. For instance, and with some hyperbole, environmental law should perhaps not limit itself to discussing only legal instruments concerning protecting species, rivers or areas, but instead may need to take seriously the matters of production, distribution and consumption. Constitutional law should also not remain concerned only with issues of power between states and individuals, leaving the conceptual implications of large private power or social media challenges unattended. Finally, administrative law should not remain blindly in set doctrinal categories, with little sensitivity to social context – which may lead to major social injustices and human tragedies, as was the case in the so called ‘tax affaire’ in the Netherlands, which led to the whole government stepping down in 2022.
Expanding Audiences, Values, Motivations
Non-diverse teaching also leads to non-diverse values and motivations that we equip our students with. The privileged audience in legal teaching is still a limited set of legal professions. In the past, this may have been justified by the fact that most students went on to traditional legal professions, becoming judges or most often lawyers. Yet much has changed in the meantime. Nowadays, a large proportion of law students do not go into ‘traditional’ legal professions. And yet, the core audience of legal teaching still remains traditional legal practice, which also most legal scholarship is still directed to.
One crucial side-effect of this lingering oversized focus on legal practice, in a social context of the clear hierarchy between those corporate legal giants at the top and the rest beneath, is the facilitation of quite crude ‘corporate capture’ of the best legal minds. Whatever students’ aspirations may have been when they entered law school – and those are indeed diverse – the majority of end up leaving with the idea that the best and the brightest should find their place at the centre of high powered, corporate legal practice. Yet given the challenges that we face, one should wonder if it is socially desirable to have the brightest legal minds devoting their time to fostering corporate mergers and enabling oligarchs.
If we present the legal world in a narrow way in our teaching, as being only that of legal practice, while giving study credits and social recognition for internships in large law firms, we open the doors to the most successful and resourceful in this crowd – legal corporate giants – skimming off much of the top legal talent. When much of the curriculum presents profit as the most natural human motivation, while excellence is embodied in the most profitable corporate law firms, how could we expect the ‘crème de la crème’ of our law schools to choose a career which is less well paid and less socially recognised?
To prevent this type of ‘corporate capture’, we need to give space and recognition in our teaching to a broader set of professional legal identities (including public official, judge, NGOs, social entrepreneur etc.), values (including public values, democracy, solidarity), responsibilities (for oneself and one’s interest as well as for other people and institutions) and finally, human motivations (social and cooperative). These are as least as natural, excellent and laudable as the set that is imparted to students today.
Law as a Vehicle of Democratic Transformation
At the heart of much of what I have said thus far stands the basic question of what conception of law we as legal teachers embrace. As the rule of thumb, the more naturalised our understanding of the social world is (i.e. as ‘set in its own natural ways’), the lesser role for law or lawyers we see there. In contrast, the more constructivist approach to law and society we take (‘society as institutionally made’), the greater role for law and lawyers we would see. Whichever it is, we will impart such understandings via our teaching.
I would like to suggest that at this historical juncture, faced with so many existential challenges, law teachers have a growing responsibility to uphold law in the latter, more transformative sense. In the past decades, we have far too often described law as weak or useless. We have told students that law is ‘lagging behind technology’, that legislators do not have enough knowledge to intervene in ‘the markets’, or that self-regulation is the best response to environmental, social or human rights challenges. Yet all of those claims are tendentious at best – when did self-regulation really solve any problems? – and the alternatives often prove worse.
The democratic task entrusted to us as legal teachers is then, I believe, to change the perception of our students on law’s capacity to bring about change. This requires us to first show the contingent and political nature of legal and social institutions. Second, to lay bare our capacity to change these institutions, individually and collectively. And finally, to let students appreciate the role of law as a vehicle for change.
Clearly, I easily concede that law is not innocent of the very problems we face today. It co-constitutes, in fact, many of them. But that is exactly the point. It cannot be the case that law cannot be employed differently – with the chances of this being greater when the stakes are higher. With the existential challenges we face, we cannot and should not give up on law as a public, democratic means for shaping our societies.
Many thanks to Candida Leone, Vladimir Bogoevski and Amy Lazel for their invaluable comments on this piece. All remaining errors are mine. Written within the framework of the European Research Council Project N-EXTLAW: Mainstreaming Law as a Vehicle of Social Change [Grant agreement No. 852990].