Recently while teaching asylum law, we took some time in class to talk about justice. How do we know what is the right thing to do? What standard(s) should we use to decide whether a case result is just or not? I was just about to recap our discussion when a student asked, poignantly, "What does Justice have to do with the Law?"
In brief, the student commented that very few classes ever even talk about justice, and, the student also asked me directly if I have ever even talked about justice as a litigator before the court. Those were great questions. And, the student got me thinking…deeply…because if what we are doing is not just, then we should be doing something else. And, if we are not talking about justice, then, let's be frank, we are not engaging with our students in heart-felt learning because they came to law school – not to be mechanics robotically applying the law – but to make the world better, to make the world more just, in short, to restore and right and mend relationships.
As I reflected on my student's questions, I started to realize that implicit in much discourse concerning the outcome of cases are principles that manifest themselves in real impact on real people. So, my first step was to refocus on teaching about the people (and not just the mechanical facts, issues, holdings, and rationales). I try to find out what happened to the litigants. I sometimes call the attorneys that litigated the case. In short, I try to bring life to the cases that we read. Second, I try to keep my eye out for opportunities to talk about whether the decisions in the cases that we study are just (and why or why not). I try to make it explicit. Third, as we talk about representing people, I bring up opportunities to appeal to courts by using principles of justice.
So, that brings me back to learning. It seems like many law students are just plain tired, primarily it seems to me, because we have taught them that the law is lifeless. We've stripped the cases of all humanity. We talk about cases as if they are just impersonal scripts, and, in the process, our students begin to feel like the lawyer's job is just to keep the machine going. That they are a cog in a process that lacks life. That law school is not a place to learn about how to make the world better but rather just a place that keeps the world going, faltering along, without improvement, growth, or hope. Our students start to think that justice has very little to do with the law.
Perhaps that is true. But, it need not be so. That's because in a common law system the law grows out of relationships and arguments presented by real people to real people to resolve real disputes based on real appeals to the heart. So, as we teach our students, I need to help them empower themselves to speak boldly and think deeply about what the right thing to do is (and why). And, when I do that, my students start to sit up straight, they take notice, they start pondering, thinking, and, of course, learning…because they realize that they do have something to say, something that is important, something that might actually someday make a powerful impact in the lives of others when incorporated into the common law. In fact, our world needs their voices – all of their voices in order to realize justice for all.
If you're looking for a place to learn how to incorporate justice into your teaching, here's a great source. Professor Michael Sandel has a free web platform that focus on teaching justice with much of the discussion based on the law and litigation. And, in the process, you'll see a masterful teacher helping his students develop into learners. http://justiceharvard.org/justicecourse/ (Scott Johns).
