Emerging Voices in Law & Legal Education

Annual Meeting of the International Association of Law Schools, 

Al Mukhtasar Ballroom, 

The Ritz Carlton, Doha 

November 11, 2018 

Panel 3: Emerging Voices in Law & Legal Education 

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Summary of Decolonising the Law Movement in Africa: 

Emerging Voices in Law and Legal Education 

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Lethokwa Mpedi 

Executive Dean, University of Johannesburg, Faculty of Law, South Africa 

From colonization (the laws, rules and regulations; its cultures, customs and values) to decolonization (independence, apartheid, and reconolonization), Mpedi reflected on what people are teaching and its relevance to Africa’s location and social context.

The key players are academics, students, judiciary, legislature, and civil society. Academics must ask who is teaching, what is being taught, why/how is it taught, and how is it assessed? Academics must also ask if they know/understand their students, and importantly, how to bridge the gap between “them/us?” Courts -- that are independent and are subject only to the constitution and the law -- issue decisions that are binding and should apply impartially without fear, favor, or prejudice. The legislature must move away from its obsession with legalese and Latin and become more accessible and relevant in its laws, rules, and regulations. Civil society is responsible for monitoring, advocacy, and enforcement. It faces the challenge of mistrust by the state, lack of funds, and a hostile working environment.

Next, Mpedi discussed the issues and challenges of the movement to decolonize the law. What should society keep, introduce, or discard? Should the old legal text and authorities be retained? Should the laws of King Shaka Zulu be reintroduced? If not, then what concrete changes are needed, e.g. the court dress code? Furthermore, when should imitation or innovation be applied to areas such as comparative law or legal history?

Peers, such as Kenya’s M-Pesa, can teach lessons on the mobile money transfer system for the unbanked masses. Mpedi continued to explain how the clash between foreign and local cultures and values influence law, language, and culture. For example, the concept of prescription may not apply in some ethnic groups and/or given the multiplicity of languages (e.g. 13 in S. Africa). The final challenge Mpedi presented is the inaccessibility of laws due to the urban and rural divide and multiple official languages. People with disabilities, the Khaisan and Bushmen, and those subjected to fee farming are particularly vulnerable.

Mpedi concluded by saying that key players must innovate. Imitation is no longer enough. They must consider local content to find local solutions. They must also appreciate the population of first generation law students.

Simon Chesterman 

Dean, National University of Singapore Law School, Singapore 

Presented by video 

Asia is composed of 4.5 billion people and fifty countries in which there are several thousand law schools. How can Asia’s law schools and scholars formulate and contribute to a more global conversation on the role, and rule, of law? During colonization, colonial powers prohibited a legal education in the colonies. Leaders began establishing law schools around the time of independence. The rule of law proved essential to the development of independent governments.

Asia in particular benefited from this development, and legal education is slowly changing. In the 2011 QS Rankings, three Asian universities ranked in the top fifty compared to the top eight in the most recent rankings. Part of this success came from imitating the best of the western traditions of legal education. Despite this success, two flaws exist in the rankings: 1) method, and 2) assumption.

Nonetheless, the Asian context provides a space to teach pluralism: national, global and Asian. “National” is jurisdiction specific. The challenge is whether it will compromise the rule of law. “Global” includes the forces of globalization and technological innovation pressure from the outside. “Asian” considers “Asianness.” This category is exogenously defined with no regional organization, but -- given the economic dynamisms of the region -- provides great opportunities. It also provides an intellectual opportunity. In other jurisdictions, comparative law meant comparing U.S. to other western legal systems. It could now include intra-Asian comparisons.

In conclusion, voices have emerged to show a thriving discourse outside of the tradition-bound. The aim of legal education should not be integration, but pluralism that allows for diverse approaches and ways of thinking about the law. Finally, the status quo in untenable in Asia. The West no longer dominates considering the economic activity and the patterns of flow of capital and ideas to and from Asia. In short, Asia is no longer a rule-taker.

Tomasz Koncewicz 

Professor, Faculty of Law, University of Gdansk, Poland 

For articles on the topics of his discussion, see https://www.researchgate.net/scientific-contributions/2117783098_Tomasz_Tadeusz_Koncewicz

This speaker did not send me his slides, as requested. Thus, this summary reflects my limited notes and the abstracts of three articles he has written on related topics. In my opinion, this presentation provided the most intellectually challenging concepts offered at the conference. It resonated strongly with me in light of the Trump administration’s authoritarian impulses, the politics of “the other,” the politics of fear and resentment, anti-pluralism, and national exceptionalism -- key ingredients to the rise of authoritarian/populist governments in Poland, Hungary, and possibly other European countries.

Under these new regimes, the national constitution protects the state, not individuals. The law reflects only the demands of the majority. The constitution is eroded as a source of higher law. The constitutional court is an ally of the majority and a government enabler. It no longer protects the minority. The rule of law no longer frames the decision-making process in a tradition “defensive” way. It now plays an offensive role in protecting the authoritarian rule. The rights of the opposition are viewed as constraints on the will of the people. Suspicion grows about international institutions. The collective takes precedence over the individual. Human rights take a back seat.

He calls this result “constitutional capture.” The government goes after institutions to support the popular resentment. Thus, constitutional courts die when citizens don’t support them.

As a result, the national constitution protects against dangers that no longer exist OR cannot protect against current dangers.

Lawyers can inadvertently enhance the trend. They are trained to spot the wrong signs of danger.

From his articles:

The Capture of the Polish Constitutional Tribunal and Beyond: Of Institution(s), Fidelities and the Rule of Law in Flux

History might have stopped for the Polish Constitutional Court in 2015-2016. After thirty years of building an impressive resume as one of the most influential and successful European constitutional courts and living proof of 'the rule of law in action', the Court has fallen under the relentless attack of a right-wing populist government and succumbed to it. This paper moves beyond the hitherto dominant perspective of 'here and now' and lawyers' fixation on 'the boat', and instead focuses more on the journey and important lessons the journey might teach us and enhance the understanding of 'our boat'. The Polish case ('the boat') is much more than just an isolated example of yet another government going rogue. An important European dimension colors what has transpired in Poland over the last twenty months. To understand what has happened in Poland and why, one has to take a longer view and revisit not only its 2004 accession, but also its 1989 constitutional moment. The constitutional debacle in Poland must be but a starting point for a more general analysis of the processes of the politics of resentment and constitutional capture that strike at core European principles of the rule of law, separation of powers and judicial independence.

Polish Martial Law on the Docket—Judging the Past and the Clash of Judicial Narratives

The totalitarian regimes leave sometimes to the next generation a challenge of dealing with legal problems that lawyers will find later difficult to solve within the confines of democratic state governed by the rule of law. The authors analyse this process of coming to terms with the past through the prism of the Polish decree of 13 December 1981 on the Martial law. Two case studies chosen for their analysis show how two supreme Polish courts—The Polish Constitutional Tribunal and the Supreme Court—dealt with this very issue and each came up with its own understanding of how to look back on the martial law. The latter attempted to justify and uphold the judicial decisions made during the application of martial law in Poland, yet doing so, it violated basic tenets of legal axiology. The former, on the other hand, was determined to make good the damage wrought by the Supreme Court but while doing so it overstepped its own competences and in the process became a court of facts, rather than laws. The analysis shows how martial law continues to pose important conceptual and axiological questions and is everything but a matter of the past.

The “emergency constitutional review” and Polish constitutional crisis of constitutional self-defense and judicial empowerment

Courts that owe their existence to democratic institutional choice must act prudently, or the choice may be withdrawn” and the Polish Constitutional Tribunal is no exception. On balance, its jurisprudence of 30 years respected the choices made by the principal or, using M. Shapiro’s words, the Tribunal acted prudently and has built credibility and legitimacy incomparably greater than that of other Polish public institutions. Yet, the current attack on the Tribunal is not premised on the dissatisfaction with the overall performance or particular acts of the Tribunal, but rather strikes at its very existence and the very premiss of judicial review. We are not dealing with some hasty decisions of the majority being the result of the transient dissatisfaction with the Tribunal’s case law. If this was the case, we would not have reasons to sound off the alarm as political tinkering with the unwanted decisions taken by constitutional courts happen all the time and everywhere. It forms part of more larger and sophisticated plan aimed at debilitating possible pockets of resistance and independence, curbing democracy, the rule of law and the division of powers. In this paper I will argue that when the demos indeed chooses independent judges and courts as dispute resolvers and subjects them only to the Constitution and statutes (art. 173 and 178 of the Polish Constitution), the rule of law (art. 2 of the Constitution), elevates the Constitution to the status of the supreme law of the land (art. 8 of the Constitution), makes the separation of powers with checks and balances as one of the cornerstones of the Republic of Poland (art. 10 of the Constitution) and the judgments of the Tribunal universally binding and final (art. 190 of the Constitution), and, last but not least, inserts direct application of the constitution into the Constitution itself (art. 8(2)), the demos must then accept that courts will be ready to take these systemic features seriously and rule against the whimsical and instrumental politics of the day. It is now beyond dispute that there is a gradual constitutional coup d’état in Poland whereby the Constitution is being modified through legislative sleight of hand. In these extraordinary constitutional circumstances, the constitutional review by the ordinary courts is simply a necessary and urgent response to the relentless and no-holds-barred politics of the parliamentary majority of the day. The response must has at its core self - defense of the constitutional essentials mentioned above. Judges cannot simply stand by and watch the legal order torn apart in the name of “the people”. They must defend the Republic and uphold the law. This is exactly what they are sworn to do. Nothing less, nothing more. The government’s persistent refusal to publish judgments of the Tribunal brings to the fore a more general question of whether the constitutional integrity, rule of law and systemic coherence of Polish legal order, might be secured through legal means other than centralised constitution- al review? Below I will argue in favour on “emergency constitutional review” exercised by the ordinary courts. Such review is defended on the ground of constitutional self-defence and judicial empowerment that must be resorted to in the name of constitutional essentials and constitutional integrity. The emergency review is to make make sure that, despite the emasculation of the review functions of the Tribunal and its ensuing paralysis, the Constitution remains the supreme law of the land.

A Judicial Perspective 

Honorable Emmanuel Ugirashebuja 

Dean Emeritus, University of Rwanda, School of Law; 

President – East African Court of Justice, Tanzania 

This speaker also failed to send me his slides or notes.  Accordingly, this summary is especially short because of my flagging notetaking skills.

This judge emphasized the skills lawyers (and law students) need to thrive. They are:

1. Complex problem-solving.

2. Critical thinking.

3. Creativity.

4. People management.

5. Emotional intelligence.

6. Good judgment.

7. Negotiation skills.

8. Cognitive flexibility.

9. Tolerance of the ideas of others.

He also described a critical thinking inventory:

1. Truth-seeking.

2. Open-mindedness.

3. Analytical thinking.

4. Systematic approaches.

5. Confidence in reasoning.

6. Inquisitiveness.