A Manifest Revolution: Access and Specialization in Legal Education and Practice

Michael Feindel, Olivier Fuldauer

Abstract


The new consciousness of legal ignorance stems from the perception that law has become more complex. It is not simply a case of there being more rules or regulations, rather, the meaning and function of law have become more complicated. Intuitions of justice, the content of "natural law," have been qualitatively displaced by positivist law-making. Legal dilemmas are less easily framed in terms of moral imperatives as law becomes more site-specific, more embedded in material circumstance and social histories.

The law has become more complex because the society it regulates has become more complex. More decisions need to be made because more choices exist, and in this sense, law attempts to structure a society that is increasingly defined – though this logic exceeds the very notion of "definition" – by its variance with itself, defined not by what it is but by the possibilities of what it can be or, alternatively, by what it is not. Only in rhetoric can the organization we call society be reduced to one set of values or to a single overarching principle of social cohesion – if indeed cohesion is easily distinguished from tension.

The forces effecting the articulation and construction of the law resist any simple or holistic characterization of legal knowledge. The decomposition of the unity of legal knowledge has meant that its content no longer submits to any one end; it is no longer evident to say for whom or for what it is, or should be, composed. This predicament does not, however, release us from the need to decide and re-decide these questions. It is in view of these issues that a new perspective on legal education and legal practice is offered.

While critics of legal institutions have identified both the problem of wider access to legal knowledge and the increasing specialization of legal knowledge, rare is it that these cuts are made by the same sword. Typically, proponents of access to the law oppose the concentration of special knowledge in the hands of an elite whose access to 'legal institutions is primarily based on socio-economic privilege. The "crisis" of legal knowledge has painted a picture that hints at even greater elitism: the knowledge lawyers require to function effectively in society is due to become even more removed from the civilian denominator of "common sense."

The authors contend in this comment that the aims of wider access and of specialization can be viewed in complementary terms.


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