The Critical Lawyers' Handbook Volume 1
3: Critical Legal Practice
Kim Economides and Ole Hansen
legal studies in Britain claims essentially to be a progressive intellectual
challenge to the dominant traditions in legal scholarship. It has given
a higher priority to the task of integrating legal theory within social
theory than to the critical examination of professional legal practice.
In other words, it is the activity of the law school, rather than what goes
on in the rest of the world, which has been chosen as the principal focus
of critical scholarship.
As a result, the relationship between critical legal theory and progressive legal practice appears at best problematical and at worst non-existent. Or, rather, it appears so to critical legal scholars. Most practising lawyers are too busy getting on with their work to notice, let alone worry about, the relationship between their activities and legal theory. While we have a theory in search of a movement, we have yet to identify a movement in search of theory.
In this article we shall argue the need for critical legal scholars to take practice seriously, and the need for progressive practitioners to be equally serious in accepting the contributions that academics can make. The practices of law and the institutional environments which envelop them must become a more important concern to the critical project if it wishes to retain the transformation of legal and social systems as part of its rhetoric. That should be uncontentious - as uncontentious as the statement that theory which places itself in the classificatory category 'legal' must have some point of reference with empirical reality as found in legal practice.
in the world of critical legal studies it is by no means always so.
A significant strand within critical legal thought (particularly that
displaying a tendency towards nihilism) emphasises the deconstruction
of the discourse latent in existing legal doctrine and practice. The resultant
trashing exercise tends to destroy any pretensions that lawyers might
have about the compatibility of progressive politics and legal practice.
Bankowski and Mungham provided an early example in Images of Law:
Scheingold (1988) points out that this leads many critical theorists to regard practitioners with a fundamental scepticism - to the extent that 'radical lawyer' is considered to be a contradiction in terms and progressive practitioners are condemned for supposedly adapting their clients to the prevailing system and thereby enhancing the legitimacy of that system in an attempt to find a way out of the impasse between theorists and practitioners Scheingold examines Campbell's (1983) attempt to formulate a socialist theory of rights. Scheingold finds that it does not work. Campbell's reformulation of bourgeois rights as duties of the socialist state may have internal coherence, but in the transformation, rights have lost their capacity for individual enforcement. Unenforceable 'rights' are simply not rights.
So we are back to square one. A vocal element within critical theorists would say, 'So what?' The postmodernist demolition squad would not consider that it was a matter for them to provide a theoretical basis for practice (Douzinas and Warrington in this book). A wider circle might argue, following the Frankfurt School, that critical theorists have no need to be concerned directly with social change. 'A critical theory', according to Geuss (Geuss, 1981), 'is a reflective theory which gives agents a kind of knowledge inherently productive of enlightenment and emancipation.'
As Cotterrell explains (1986, p. 8) there are clear limits to the scope of a critical theory which
The use of the Public Health Act 1936 by radical practitioners is a good case in point. That act (like the Environmental Protection Act 1990, its recent and almost identical replacement), among other things, lays down certain minimum standards of housing repair. In particular, if tenanted accommodation is in a state of disrepair which is prejudicial to health, a magistrates court may order the landlord to bring it up to standard (Environmental Protection Act 1990, s79). For the first 35 years or so of the Public Health Act's existence lawyers considered it to be merely part of the regulatory powers exercised by local authorities. Or rather, not exercised. Despite the fact that millions of homes fell below the statutory standard few prosecutions were brought. Left-wing local authorities differed little from the others.
But in the early 1970s the Public Health Act 1936 was developed into an important weapon for tenants. Radical lawyers and environmental health officers, principally in the law centres, discovered that s99 of the Act (now replaced by s82 of the EPA) enabled individuals to bring Private prosecutions in the magistrates courts. They also pioneered ways of bringing prosecutions not only on behalf of individual tenants but on behalf of groups too. In many instances, individual court proceedings were part of wider campaigns to improve conditions in the community.
In the meantime, local authorities had themselves become the largest landlords in the country and the private rented market continued to shrink. Because of the appalling quality of much of the local authorities' housing stock and the slowness with which repairs are carried out - if they are carried out at all - most housing disrepair cases under the Public Health Act 1936 (and now the EPA) were brought against local authorities, and among the authorities it is probably the left-wing ones which are on the receiving end of most summonses. In some authorities, repairs are prioritised according to whether a court order has been made or threatened rather than on the basis of need, with the result that those tenants who do not or cannot use the law are unlikely to have repairs carried out however desperate the conditions in which they live, whereas others with access to the legal system will be able to have relatively trivial defects remedied.
The history of s.99 (now s.82 EPA 1990) shows both the accuracy and the limitations of critical legal theory in relation to contemporary radical practice. First, millions of homes, mostly inhabited by working-class local-authority tenants, fall below the minimum standards of the legislation; to those tenants the law is a myth. Secondly, the law offers no solution to the mass of those tenants: the housing conditions are due to their economic inequality and powerlessness. The legal system is in reality not open to most of them to assert their rights, and if, by some freak of fortune, they were all able to use the system, the substantive law would undoubtedly be changed because the state could not 'afford' the cost of bringing the housing up to standard. Thirdly, it is not necessarily the tenants living in the worst conditions but rather those with the sharpest elbows - time, energy, access to lawyers - who get their homes repaired.
But that is not the whole story. If radical practitioners had not found a means of individual enforcement of the duties imposed by the Public Health Act 1936, its requirements would have been ignored - rather as one suspects would happen to Campbell's 'socialist rights'. At least by their use of s99 radical practitioners have been able in some instances to put flesh on the legal myth. More importantly they have improved the housing standards and, in some cases, saved the health and lives of thousands of tenants. In some localities the impact has gone beyond individual cases; communities have been empowered as a result of campaigns in which s99 proceedings were a central part. And for the local authority which genuinely wants to be responsive to the needs of the local community, s99 proceedings can be a valuable indicator of whether its housing officials are delivering the goods - by no means all housing disrepair is caused by external financial constraints.
If critical theorists are serious about being part of a movement aiming at social transformation they must establish a close and meaningful relationship with radical practitioners. The achievements of the practitioners must be built on rather than sneered at. But at the same time, the practitioners, if they are not to fall into the pit of reformist politics, must accept the value of theoretical insights into the gaps between radical legal practice and the professed politics of the radical practitioners.
The historical obstacles against such a coming together may seem too large. In addition to the specific factors mentioned earlier, it could be said that in many respects the divisions between critical theorists and radical practitioners are simply another example of the general split between academic and practising lawyers, which seems to be deeper in England and Wales than in other jurisdictions and which has existed since the development of law as an academic discipline in the nineteenth century.
Partington (1988) has suggested that legal academics may not be as marginal to mainstream practice as has previously been supposed. While his statistics on academic involvement in Practice are now somewhat dated he does show that academics have been more involved with practice than had hitherto been believed to be the case. But his definition of legal practice, which includes involvement in research and development of the law and legal services, is unlikely to be accepted by the mainstream practitioner. Nonetheless, Partington is clearly right in identifying a trend bringing practitioners and academics closer together. At the time he was writing large firms of solicitors were just beginning to recruit specialists to be in charge of in-house education and training. Now, some two years later, more than 40 firms have appointed, under various labels, training managers, most of whom were previously academic lawyers in universities and polytechnics.
In another development, the Law Society has decided to relinquish control of its Finals course to the academic institutions teaching it (Economides & Smallcombe, 1991; Hansen, 1990). Further, the Society has accepted that the institutions should be allowed - and perhaps even encouraged - to offer degrees which provide exemption from the Finals examination. The longer-term implication of that development could be that, for the first time in this country, the working practices of the profession would also become the teaching interests of mainstream academics.
new educational proposals are a symptom of the rapid technological and
economic developments in the profession which are leading to the disintegration
of its monolithic structure identified by Abel (1988) and which have already
led to the erosion of some of its most prized restrictive practices in
the Courts and Legal Services Act 1990.2
The same developments could lead to the practising profession showing
more appreciation for academic values than hitherto. A sharp, critically
trained mind and confidence in the use of abstract concepts are likely
to prove more important in the marketplace than the details of rote-leamt
At the theoretical level there are also grounds for optimism. A developing strand of critical thought, found particularly in North America, and shared even by Unger (1983), offers a way out of the academic blind alley and tries to connect with praxis. Trubek (see also Garth, 1987) for instance, has castigated 'the error of the cynic' who says that legal rights have no reality except as a smokescreen for oppression. He has called for a 'programme of critical social thought about law which
To achieve that objective, critical theory would need to illuminate and inform the work of radical practitioners, a process which could involve much rejection and pain. It would not only be the contradictions of casework, as illustrated by the example of s99, which would come under scrutiny, but also many of the values and much of the common sense of practice. Radical practitioners are likely to share much of this common sense with their more traditional colleagues.
Take, for example, the notion of independence. Few would object to a critical exposure of the 'independent' judiciary and traditional legal profession. But the law centres, with the support of the Law Society and the Bar Council, have used the same notion of independence to resist accountability to their funding bodies. What are the implications of that, and to what extent, if any, have the 'Independent' law centres succeeded in empowering their clients and communities? And how would radical lawyers in private practice respond to an independent empirical study evaluating their office organisation, employment practices and client relations? Questions of that sort must be faced or radical lawyering will be a contradiction in terms.
But there are also other areas where regular and close collaboration between critical theorists and radical practitioners can be successful without incurring conflict and friction. One example is information technology, which is being introduced by radical practitioners, although at a somewhat slower pace than the mainstream profession (Clarke & Economides, 1989 and 1990). The widespread use of flew technologies in the legal profession has encouraged existing tendencies to conceptualise law and legal practice in terms of pure technique and according to narrow criteria of' 'efficiency'. Critical theory would help practitioners to take into account the practical political dimensions of the conjunction of law and technology.
Finally, there is likely to be little disagreement between theorists and practitioners about the wider task. That must be to expose the pressure points for structural change which lie buried in legal institutions and the welfare state. If we can link a moral vision and enlightenment which sees beyond the limits of the market mentality with a political realism capable of decolonising law's empire we may then be in a position to glimpse the meaning of truth, justice and democracy.