Decolonisation of Legal

Knowledge
Editors
Amita Dhanda
Archana Parashar
ORoutledge
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Dr Damayanti Parashar
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Contents
Acknowledgements ix
Introduction
Decolonisation of Knowledge: Whose Responsibility? XL
Amita Dhanda and Archana Parashar
Chapter 1
Development and the Limits of State Politics: Rethinking
Emancipatory Politics in Contemporary Africa 1
Michael Neocosmos
Chapter 2
The Successful Failing of Legal Theory 44
Andreas Phitippopoulos-Mihahpoulos
Chapter 3
Power and Responsibility: The Curse of Spider-Man 64
Francesco Dominello
Chapter 4
International Laws and the Discontented: Westernisation,
the Development and the Underdevelopment of
International Laws 91
Gbenga Oduntan
Chapter 5
The Female Diaspora: Interrogating the Female
Trafficked Migrant 127
SharronA. FitzGerald
Chapter 6
Sexualised Economics: Divorce and the Division of
Farming Property in Australia 152
Malcolm Voyce
viii [ Decolonisation of Legal Knowledge
Chapter?
Responsibility for Legal Knowledge 178
Archana Parashar
Chapters
The Governance of Power: Taxing Choices 205
Radha Arun
Chapter 9
The Ability to Respond: Responsibility of Regulatory
Institutions 232
Vijaya Nagarajan
Chapter 10
The Power of One: The Law Teacher in the Academy 261
Amita Dhanda
About theEditors 282
Notes onContributors 283
Index 286
Acknowledgements
1 his collection of essays emanates from a panel discussion we had
conducted at the Critical Legal Studies Conference held in September
2007 at Hyderabad, India. We are thankful to our Universities, i.e.,
Macquarie University, Sydney, Australia, and the National Academy
of Legal Studies and Research (NALSAR), Hyderabad, I ndia, for
providing us with this opportunity. We are especially thankful to the
School of Law, Macquarie University, for supporting the participation
of a number of contributors to this volume who were panelists at the
conference.
An integral feature of an edited volume is the chasing of the
contributors to deliver on time. We are particularly thankful to the
contributors of this volume for sparing us from that unenviable task.
The punctual arrival of each contribution has made the putting together
of the volume very pleasurable for us.
Last, we wish to acknowledge the professional support we have
received for this venture from the team at Routledge. It is with pleasure
that we thank Omita Goyal, who ensured swift refereeing and early
approval for the project. We appreciate the efforts of Rimina Mohapatra
for her efficient coordination of many tasks, and also thank Lara
Chandni for her close reading of the copy, which weeded out many
inadvertent errors and ensured consistency of style.
Amita Dhanda
' Archana Parashar
260 I Nagarajan
Podger, A, 2007. 'What Really Happens: Department Secretary Appointments,
Contracts and Performance Pay in the Australian Public Service', Australian
Journal ofPublic Administration, vol. 66(2): 131-47.
Pusey, M. 2003. TheExperienceofMiddleAustralia: TheDark Sideof
Economic Reform. Cambrdge; New York: Cambridge University Press.
Schudson, M. 2002. "The News Media as Political Institutions', Annual Review
ofPolitical Science, vol. 5: 249-69.
Scott, C. 2000. 'Accountability in a Regulatory State', Journal ofLaw and
Society, vol. 27(1): 283-305.
Sexton, E. 2008. 'Papers Must Be Released, ACCC Told'. Sydney Morning
Herald, 1April.
Shearing, C. and J. Wood. 2003. 'Nodal Governance, Democracy and the
New "Denizens'", Journal ofLaw andSociety, vol. 30(3): 40O-419.
Taggart, M. (ed.). 1997. TheProvinceofAdministrativeLaw, Oxford: Hart.
Wilks, S. and 1. Bartle. 2002. The Unanticipated Consequences of Creating
I ndependent Competition Agencies', West EuropeanPolitics, vol. 25{1):
148-72.
Chapter 10
The Power of One: The Law Teacher
in the Academy
Amita Dhanda*
Introduction
A lanners of legal education have been continually required to
engage with questions surrounding the objectives of such education.
What should be the purpose informing legal education? Should it
be designed to enable both the creation and the promotion of the
social justice agenda of a polity, or should it take on the task of
providing technocrats to the legal system? The two objectives are
being presented in oppositional terms, primarily to highlight the way
in which legal education planners have viewed them, whereby, even
when the importance of both is acknowledged, one is privileged over
the other.
1
Legal education is a late entrant in the academy: in its earlier in-
carnations, the skills required to enter the profession were primarily
imparted through mentoring, whereby young legal apprentices ac-
quired their knowledge and skill by interacting with senior lawyers
already in the profession,
2
or trading schools imparted skills education
1 thank Radha Arun and Gabor Gombos for drawing my attention to
relevant literature and for their responses to earlier drafts. Their careful
listening and close questioning has been of great assistance in refining the
central argument of this article.
1
For an analytical description on the structure of legal education, along with
an exploration of the reasons for changing it, see Parashar (1999).
2
For a synoptic narrative on the imparting of legal education, see Douglas
(2001); for an experiential account of this mode of education, see Seth (2003).
262 I Dhanda
to fresh recruits (see Douglas 2001). The method of imparting know-
ledge was significantly influenced by the purpose for which it was
provided, and the use to which it was going to be employed.
Thus, when Thomas Jefferson felt that he needed citizen lawyers to
assist in the task of nation-building, he jettisoned the apprenticeship
system, established a college of law, and aligned legal education with
liberal discourse (ibid). A similar connection was forged by Gandhi,
though to varied effect: Gandhi, unlike Jefferson, asked lawyers
to boycott British courts, to advance the freedom struggle.
3
Along
with the political reasons that he referred to, Gandhi questioned the
mediated system of justice which impelled lawyers to exploit not re-
solve conflict.
4
Yet, his personal example showed that the self-same
skills could be effectively employed to further the cause of justice.
5
Gandhi
6
continually sought to privilege the task of nation-building,
and the humanist over the technocratic practice of law.
7
3
This was because, in Gandhi's opinion, by continuing to practice in the
British courts, lawyers accorded an undeserved legitimacy to British ruleby
contributing to the image that the colonial rule was happening in accordance
with the rule of Jaw. See Parel (1997:58-59).
4
The adversarial system may cause lawyers to adopt such a line, and yet
Gandhi reports how he realised 'that the true function of a lawyer was to unite
parties riven asunder'. He states, The lesson was so indelibly burnt into me
that a large part of my time during the twenty years of my practice as a lawyer
was occupied in bringing about private compromises of hundreds of cases. I
lost nothing thereby not even money, certainly not my soul' (Gandhi 1970:
111 in Parel 1997: 59).
5
Gandhi drew upon his lawyering skills to draft umpteen letters and
memorandums to assert equality, non-discrimination and freedom, to
challenge unjust laws, and to make proposals which would make for a more
law abiding society. To obtain detailed information on the unjust laws that he
sought to change and challenge in South Africa, see Nauriya (2006); and for
a descriptive analysis of the work undertaken by Gandhi, along with Motilal
Nehru, Fazlul Haq, C.M. Das and Abbas Tyabji in investigating the Jailianwala
Bagh firing and in setting down important principles for democratic rights,
see Nauriya (1996).
6
To conveniently obtain information on Gandhi's perspective on law and
the lawyers, see Gandhi (1962).
7
Technocracy tends to mask the questions of justice, which should be at the
heart of any engagement with law. And I need to make this proposition, even
as I agree with Llewellyn infra note 10, that, without possessing adept legal
craftspersonship, it was not possible to recast the legal mould in consonance
with justice.
The Law Teacher in the Academy I 263
The law academy has been unable to exclusively cast itself into the
nation-building role. There has been a continuous need to ask 'how
far "must" a University Law School sacrifice its university mission to
the sad practical fact that its graduates must earn a practical living in
the practical practice of practical law?' (Llewellyn 1962:375). Llewellyn
terms such questions 'misposings*. It is these misposings he contends
which result in the abdication of a university's responsibility. It is
Llewellyn's view that 'the good work, the most effective work, of
the lawyer in practice roots in and depends on vision, range, depth,
balance, and rich humanity' and therefore he holds that, 'the best
practical training, along with the best human training, is the study of
law, within the professional school itself as a liberal art' (ibid.: 376).
Holmes places a similar stress on curriculum reform to expand the
vision of the student of law (1897).
It needs to be noted that, whilst Jefferson was concerned with the
engagement of lawyers with governance questions, Llewellyn and
Holmes were attempting to promote a more rounded legal education.
However, the class and gender biases of legal education were sub-
jected to critical scrutiny oniy with Critical Legal Studies and Feminist
Jurisprudence.
8
Duncan Kennedy, in a large body of writing, highlights
how the law school, with its hierarchical structures and practices,
socialises the law student to the hierarchy outside and thus etherises
students from engaging with social justice questions or assuming social
change responsibilities.
9
More recently, the Global Alliance for Justice Education has been
facilitating discourse between law teachers to induct justice concerns
in curricula, teaching methodology and evaluation processes. The
Alliance has especially promoted using clinical legal education as the
route to inducting social responsibility in the law academy.
10
Each of the above initiatives for the reform of legal education has
ushered in different kinds of changes in the structure of the same.
8
For a fascinating piece on how feminism should be employed to
foundationally rethink the legal curriculum, see Mackinnon (2003).
9
Duncan Kennedy made an early engagement with questions surrounding
legal education with his student contribution 'How Law School Fails: A
Polemic', in the Ya/e Review of Law andSocial Action; see also Kennedy
(1980, 1981,1982,1987).
10
Information on the various initiatives of the Alliance in terms of con-
ferences and resources can be obtained on their website, httpj//www.gaje.
org/ (accessed 6 April 2008).
264 I Dhanda
Though these proposals for change have often been floated in Anglo-
American jurisdictions, their impact has not been restricted to the
Anglo-American world alone. Instead, these law reform proposals
have been drawn upon to plan legal education reform in both the
developed and the developing world.
11
The purpose of this synoptic narration was not to evaluate the
structural changes. Rather, the narration was made to underscore
how structural change dominates legal education reform exercises.
This happens to be the case even in writings celebrating the role of
individual educationists.
12
Consequently, the kind of critique that
a man like Gandhi made of the legal profession, whilst employing
his legal education to more socially relevant objectives, is also not
the subject of study.
13
The underlying premise of the reform efforts
seems to be that, if the legal academy has to be social justice sensitive,
then its governance hierarchies, curriculum priorities and teaching
methodologies need to be necessarily geared to achieve this objective.
Thus stated, the proposition seems obvious and unexceptionable.
However, I take issue with this statement in order to draw attention to
the role of the individual teacher in this social justice enterprise. Is the
role of the teacher totally determined by the structure of the academy?
Is structural change the only route to reform? Or does the teacher
possess sufficient autonomy, distinct from the structure, which enables
her to be an autonomous change agent? Stated differently, what is
the role of human agency in altering the culture of the academy? What
is the interplay between human agency and structural change, and
how does one impact upon the other?
I raise these questions on the impact of structural constraints on in-
dividual law teachers because I wish to draw attention to the change
making potential of the individual. Ordinarily, an acknowledgement
" I ndia is an apt case study the induction of the case method approach,
clinical education and the ushering in five year courses are some of the
innovations in I ndian legal education, the genealogy of which can be traced
to Anglo-American roots.
12
Thus, for example, see Llewellyn's assessment of the contributions of
various law teachers to American legal education (1962), or Upendra Baxi
doing a similar exercise in 'Enculturing Law: Some Unphilosophic Remarks'
,
I3
At best, what we have is a compilation of Gandhi's views on law and
lawyers. See Gandhi (1962),
The Law Teacher in the Academy I 265
of the force of circumstances and the power of context makes for the
adoption of a deterministic perspective towards human agency. By
believing that a deterministic perspective is inevitable, an alternative
route to reforming legal education is closed. Moreover, this denial
of individual power also exempts the individual from assuming
responsibility.
This article proceeds on the basis that questions of power and re-
sponsibility cannot be raised in structural terms alone; the singular is
also possessed of power and needs to make choices in affirmation or
denial of it. Our understanding of the dynamic between power and
responsibility would be incomplete if the role of the singular in this
equation were not appropriately foregrounded. The testing of this
premise required two kinds of inquiries: one, concerning the change
making abilities of an individual person; and two, on the change
inciting opportunities available to the individual law teacher. Whilst
the first inquiry was not bound by context, the second was necessarily
grounded in it, and the context of the second inquiry generated
immeasurable anxiety. As a practicing law teacher, I had to reckon
with my own analytical biases and continually ask myself whether my
so called objective analysis was no more than a scholastic presentation
of my own lived experience.
14
Was I asserting the existence of a power
and the accompanying responsibility because I had wielded it, and
not because it inherently exists? I was especially alive to this danger
because of the umpteen examples of persona! experiences disguised
as scholastic truth that Bourdieu cites in Homo Academicus (1988).
My next question was, what consequence should attach to Bourdieu's
expose? Should the dangers of bias bar academic self reflection? Or
should the searchlight on bias be used to prevent spurious scholastic
14
1accepted tenure as professor of law at one of the leading law schools in
India after working as a law researcher for nearly 15years at a premier legal
research institution. Ordinarily, people enter the academy from the bottom
of the teaching hierarchy and then work their way upwards. In the manner in
which the I ndian academia functions, junior faculty are on the receiving end
of a lot of interfering supervision which often curbs innovation and initiative,
and by the time this faculty reaches the top hierarchy, it has gotten used to the
beaten track and the established way of doing things. As I j oined the academy
at the top of the hierarchy, I escaped this supervision and, because I made a
switch from research to teaching, I had all the excitement and freshness which
is possessed by any first entrant to the academy.
266 I Dhanda
analyseswhere the scholar wittingly or unwittingly presents his own
subjective reality as objective truth? In my opinion, Bourdieu's work
was better employed to obtain the second purpose. Consequently,
I am writing this piece dwelling on the social justice objectives of
legal education and the role of the law teacher in the legal academy
in acknowledgement of my ideological biases, and not in denial of
them.
15
As a feminist scholar, I have been in agreement with the
feminist insistence on first person writing and have largely, though
not uniformly, followed it. However, the feminist ethic of first person
writing is being deliberately employed in this piece to further scholastic
integrity.
As already stated, this study on the power and responsibility of the
individual law teacher does not begin in the academy. Instead, I test
the veracity of my hypothesis by looking at that body of writing which
dwells on the kind of person who overcomes the constraints of the
structural, and in which circumstances. This body of thought is being
elaborated upon because it accords an initial validity to the hypothesis
of this piece that there is a dynamic relationship between the singular
and the structural, whereby the individual both makes and is made
by context. Since these writings happen outside the academic field,
they also offset some of the authorial bias which may surface, whilst
tracking the interplay between the singular and the structural in the
law academy.
Change Making Power of the Individual
Richard Fox, in his study entitled GandhianUtopia, notes how anthro-
pological inquiry under the leadership of pioneering anthropologist
Franz Boas analysed the historical processes which contributed to
the evolution of culture and the creation of new culture. Boasian culture
history, Fox informs us, 'studied the way new cultural assemblages
developed, it did not deal with questions of human agency the
constructive role played by individuals in culture making' (1989).
Fox contends that this silence was a significant absence in Boasian
anthropology, and hence argues for a contingent culture history,
15
Even as this piece is not autobiographical, insofar as it has autobiographical
flourishes, I have in writing it encountered all the travails of public-centric
self-reflection that Bhiku Parekh refers to in 'Indianization of Autobiography'
(1989).
The Law Teacher in the Academy I 267
combining the singular (the chronicle of personages) with the structural
(the analysis of processes).
With mis end in view, he turns to Gandhi, who he finds to be of
importance both as mentor and as exemplar." Fox obtains special
learnings from the fact that Gandhi did not subscribe to the life course
mode of perceiving life, but that to him a human was a constantly
evolving being who had lives, and not a life course. This discontinuous
notion of time allowed greater growth opportunity to the individual,
who, depending upon lived experience, could alter ideas and practice.
These individual experiments allow for a constant becoming of the
personal. Insofar as Fox explores the contribution of human agency
to culture history, he engages with the notion of personhood instead
of selfhood. By personhood, he refers to the public actions and ideas
of the individual. Gandhi believed that persons change through
individual experimente, and cultures through collective experiments.
A discontinuous and uncommonly revolutionary personhood. Fox
holds, provides an opening for understanding how individual human
agency can assume authorship of cultural change. Human endeavour
is needed both for the continuance and for the abandonment of cul-
tural traditions. Consequently, the change enterprise can begin only
after the recruitment of the first convert.
16
The outcome of this change
enterprise, prompted by individual struggle and informed by personal
experiments, is indeterminate, not predetermined.
Paul Ricoeur (2007), analysing the ideational evolutions in the
sociology of knowledge, points out how Marx, Mannheim, and Lukacs
place a disproportionate emphasis on the structural, especially in
their treatment of ideology (Fox 1989: 33). Ideology is viewed as
anonymous and such emphasis, Ricoeur points out, signifies that
Mannheim and Lukacs treat ideology as typical of a group or class,
rather than as singular production of a particul jr thinker. They fail to
acknowledge that before an ideology becomes a generalised answer,
it, is first of all, an individual problematic or question or dream posed
by an individual thinker. An individual problematic, to be sure, has a
relationship to its socio-cultural milieu, but it also defies the milieu by
16
'Socialism begins with the first convert. If there is one such you can add
zeros to the one and the first zero will account for ten and every addition will
account for ten times the previous number. I f, however . . . no one makes
the first move, multiplicity of zeros will also produce zero value' (see Gandhi
1984 in Fox 1989: 28).
268 I Dhanda
being posed. Ricoeur sees Utopia as a view from nowhere or a leap
outside whose friction is to constitute the rethinking of social life. Every
social order, Ricoeur contends, gives rise to Utopias that break through
existing circumstances and allow society to evolve to the next order
of existence. Utopian visions or dreams motivate a continuing human
struggle. And this individual aspiration for change, when authorised by
group struggle, may have structural consequences, such as the creation
of another social order, but this consequence in no way diminishes
the significance of human agency in the entire process.
Subsequent to an organisational survey in the United States,
Stephen Covey reports that a vast majority of the workforce feels that
they possess far more talent, intelligence, capability and creativity'than
their present jobs require or even allow. This information causes him to
conclude that, despite all the technological gains, product innovations
and expanding world markets, 'most people are not thriving in the or-
ganizations they work for. They are neither fulfilled nor excited , . .
They are bogged down and distracted. Most of all, they don't feel they
can change much' (Covey 2004). Such a situation subsists, according
to Covey, because, despite functioning in a 'Knowledge Worker Age',
organisations continue to operate according to the 'Controlling Indus-
trial Age Model' which absolutely suppressed the release of human
potential. The Knowledge Worker Age, Covey contends, needs to
displace the thing paradigm of the industrial age, and replace it with
the whole person paradigm.
Deliberating upon the process for obtaining this change, Covey,
on the strength of his own experience with organisations across the
world, roots for human agency. His work has led him to conclude
that most of the great cultural shifts were prompted by the choice of
one person. He further informs us that, very often, this one person
was not the formal leader. According to Covey, these persons could
function as change agents because, 'regardless of their position, these
people first changed themselves from the inside out. Their character,
competence, initiative, and positive energy in short, their moral
authorityinspired and lifted others' (ibid: 25). Covey does not make
the same sharp distinction between personhood and self-hood that
Fox posited, but like Fox, he is speaking about that reformation of the
personal which impacts upon the public domain. Only such an impact
can get him to describe the change agents as 'islands of excellence
in a sea of mediocrity' (ibid.: 26) whose impact was contagious. This
contagion could spread because the agents of change, both found
their own voice, and inspired others to find their voice.
TheLaw TeacheriniheAcademy I 269
The power of individual choice also comes to the fore when we
examine the lives of individuals who, by choice or force of circum-
stances, are required to take decisions whose impact will not be
restricted to them alone.
17
Sidney Poitier, in his memoir, TheMeasure
ofa Man(2000), elaborates on the necessity of having to make such
choices while deciding the kind of movies he would do, and with what
kind of representation of the Afro-American man, Poitier assumed
this responsibility in extremely adverse personal circumstances, be-
cause he could see how the capitulation of the Black Man was es-
sential for the social stereotype of the Black Man to continue to have
unchallenged currency. Thus, in confirmation of the assertion made
by Ricoeur, Poitier's refusal obliged the managers of Hollywood to
-both alter scripts and make movies which were more respectful of the
dignity of the Afro-American man.
According to Poitier, he could resist the forces of cultural imperialism
because of his untrammelled childhood, where he was continually
required to pit himself against nature and leam how to survive. Since
he did not encounter the racist perspective in his formative years,
it failed to define his sense of self and personhood when he was
confronted by it. Poitier's life exemplifies the symbiotic relation
between the structural and the singular. It shows that the courage
to depart from the set script contributes to the creation of an icon.
The power accompanying the iconic status throws up questions of
responsibility.
18
The choice before the icon is whether to become
entrapped by the image, or whether to use it to challenge uninformed
perceptions. The reality of such choices needs to be acknowledged if
the accompanying reflection has to be triggered.
19
17
Feminist literature, critical race theory and Dalit writings do bring to the
fore the representational burdens placed on individual men and women by
stereotyping and labeling. I t is my contention that similar identity responsibilities
reside with professionals, and the actions of any one professional, be it lawyer,
doctor or teacher, impacts on the manner in which the profession to which they
belong is viewed. For a sample of writings which show such an awareness,
see Chagla (1974), Haksar (1999 )and Seth (2003).
18
In an interesting turnaround strategy, Nandita Haksar has asked key
iconic figures to assume such responsibility (2007).
19
I nsofar as teachers occupy exclusive performance space and the
demonstration effect of their actions is high, they have the potential to be
icons and this potential makes the insights emerging from Poitier assume
relevance for them.
270 I Dhanda
The primacy of the individual in any change enterprise is again
brought to the fore by spiritual leader Eckhart Tolle, while addressing
the existential questions surrounding life and death, happiness and
suffering.
20
Tolle points to the history of communism a system ori-
ginally inspired by the noblest of idealsto show what happens when
people try to change their external reality or create a new earth without
changing their inner reality. The plans to change the outer world,
according to Tolle, are doomed to failure because such plans are made
'without taking into account the blueprint for dysfunction that every
human being carries within: the ego
1
(2005:13). Even as he perceives
the dysfunction in the human being, he also sees in the individual
creature the ability to jump the barrier of structural constraints. Thus, in
another passage, while elaborating on his understanding of evolution,
he opines that 'when faced with a radical crisis, when the old way of
being in the world, of interacting with each other and with the realm
of nature does not work anymore, when survival is threatened by
seemingly insurmountable problems, an individual life-form or a
specieswill either die or become extinct or rise above the limitations
of its conditions through an evolutionary leap' (ibid: 20).
Tolle holds that the capacity for change an individual life form
demonstrates to survive the threat of nature is also possessed by the
individual human to overcome existential obstacles. However, 'driven
by greed, ignorant of their connectedness to the whole, humans
persist in behavior that, if continued unchecked, can only result in
their own destruction' (ibid.: 11). The solution, according to Tolle, is
not in trying to be good, 'but by finding the goodness that is already
within you, and allowing that goodness to emerge' (ibid.: 13). Tolle
then elaborates on a detailed prescription for overcoming the ego and
feeling the inner body which is the life energy that dwells between
form and formlessness.
It is neither my intention, nor is it possible, to do justice to the
spiritual message of Tollein the space of a short chapter. I have
referred to his learnings primarily to emphasise that the most elab-
orate of structural reforms will not achieve its intended purpose if
individual consciousness is not in accord with this larger objective.
And reflection on this larger purpose is a minimum first level task
20
The two books where Tolle has done so are ThePowerofNow: A Guide
to Spiritual Enlightenment (2001) and A New Earth: Awakeningto YourLife's
Purpose(2005).
TheLaw TeacherintheAcademy I 271
that needs to be undertaken by human beings generally, and more
particularly by teachers. However, reference to such learnings is not
being made in order to just reinforce the 'teachers as role models'
body of thought. I refer to Tolle because I find his pathways of inner
exploration restorative of both inner harmony and autonomy. This
is so because Tolle does not require human agency to assert itself in
disputed territory; instead, he asks us to overcome our ego and en-
gage with our consciousness to find our inner beings. This discovery
cannot but be empowering for the individual teacher as she sets out
to perform her multiple roles of mentor, agent provocateur and co-
learner. I will return to this perspective of Tolie, but after dwelling on
how the issue of agency has been addressed by Duncan Kennedy,
amongst the foremost CLS scholars engaging with issues of hierarchy
and social disconnectedness in legal education.
The Hierarchical Stranglehold of the Law Academy
Even as Duncan Kennedy perceives modem law schools as 'intellectually
unpretentious', 'barren of theoretical ambition' and plagued by the
'trade school mentality', he designates them as political places which
provide 'ideological training for willing service in hierarchies of the
corporate welfare state' (1982). Kennedy then demonstrates how the
law academy, through its curriculum, classroom methodology, extra-
academic interactions and post-degree placements, so 'structures the
pool of prospective lawyers . . . that their hierarchical organization
seems inevitable' (ibid: 607). Kennedy has arrived at the aforesaid
conclusion by analysing the practices at play at each of these sites,
be it the privileging of technical legal reasoning over policy based
arguments, the personality diminishing impact of the Socratic Method,
or the promotion of learned helplessness and dependence in the
manner in which recruitment is undertaken.
In comparison to this segmented explanation of Kennedy, Bourdieu
offers a more general explanation of the production of hierarchy in law
(1987). Bourdieu perceives law as one of several social fields which
generates the habitual patterned ways of understanding, judging and
acting, according to the particular position of the individual member.
This patterned way of understanding he terms 'habitus'. Different
conditions of existence, such as educational background, social status,
or profession, give rise to different forms of habitus. While there is an
internal resemblance between the habitual practices of group members,
the habitus also indicates distinction from other groups. Once an
272 I Dhanda
entry is made into the field of law, the entrants become subject to this
patterned way of interaction and are obliged to conceive their own
social situation according to the interpretations of those who impart
education. By this miscognition, those subordinated to the power
accord legitimacy to the power relations without subjecting them to any
objective scrutiny. As this misunderstanding is induced by structural
instead of conspiratorial means, it confers, according to Bourdieu,
an inherent advantage on to the holders of power because, they not
only control the actions of those they dominate, but also the language
through which the subjected comprehend their domination. Such a
process of subordination is unleashed on persons at different tiers of
the institutional hierarchy, with the elaborate structural process making
the power yielders willing partners in their own oppression.
Kennedy's analysis of structural supremacy has been criticised
as highly impressionistic and overly particularistic in import, while
Bourdieu has been seen to provide the more holistic explanation
(Shain n.d.)- My purpose in elaborating on these juristic and socio-
logical explanations has not been prompted by a desire to weigh their
Interseauthenticity. Instead, I refer to them to show that, irrespective
of the explanatory differences on the means by which it is produced,
both Kennedy and Bourdieu concede to the all-pervasive presence of
structural hierarchy in the academy. For the purposes of this article,
the crucial enquiry is, how do Kennedy and Bourdieu situate human
agency in this omnipresent structural hierarchy?
While Bourdieu perceives the structure to be hermetically sealed,
Kennedy, despite all his cynicism, does not hold that institutional
hierarchy cannot or should not be challenged. In fact, he suggests
various counter-associational strategies to the students to subvert
the dominant lexicon. He indicates similar strategies of dissent and
challenge to the faculty. However, what needs to be noted is that
Kennedy, unlike Richard Fox, posits a pragmatic rather than a moral
assertion of the alternative vision. To that end, he suggests, 'the building
[of] a left bourgeois intelligentsia that one day might join together
with a mass movement for the radical transformation o f . . . society'
(1982: 610). This organisation around ideas requires, according to
Kennedy, to develop 'a practice of left study, left literature and left
debate about philosophy, social theory, and public policy that would
give left intellectuals the sense of participating in a community' (ibid.).
At the law school, this requires the setting up of a law study group. This
group which, Kennedy expects, would be constituted by people who
TheLaw Teacherin the Academy I 273
are uneasy with the ideological bias of the law school, would, in his
view, develop into an organisation by talking about law school ex-
periences, reading texts together, and trying to relate the texts to the
institutional setting. He asks students to look for allies in the faculty,
and also to seek out the left members of the local bar. He also suggests
a speakers' programme as a procedure to inject left thought into the
school; or to launch an insurgent underground newspaper to raise
key issues of concern in a polemical way, directed at both students
and empathetic teachers.
The pragmatic thrust of Kennedy's vision comes to the fore when,
before outlining the tasks that the group should undertake, he sig-
nificantly states that '[w]hat one does with this possibility of influence
depends on circumstances the contingent ebb and flow of school
issues. It also depends on euen morefundamental issues, like, Do you
havetenure? I am suggesting activism not selfimmolation' (Kennedy
1982: 612; emphasis added). Having filed this pragmatic caveat,
Kennedy sug-gests organising an act of resistance against classroom
bias, curriculum change to reduce political bias, and the establishment
of a politically sensitive legal services clinic as three kind of projects
that could be usefully taken up at some point. However, it is the final
suggestion, which unwittingly forges an interesting connection with Fox,
that is of special interest to this article. In this final proposal, Kennedy asks
the group to practice Utopian thinking. Again, unlike the moral en-
terprise outlined by Fox, pragmatism rules for Kennedy. Thus, Utopian
thinking is according to Kennedy, not an attempt 'to discover an ideal
form of social arrangement which would put an end to historical
struggle and uncertainty, but a practice of formulating demands so as
to reveal the hidden ideological presuppositions of institutional life'
(ibid: 613). It should be so formulated that it cannot be dismissed
peremptorily, and yet it is Utopian because it cannot be accepted
'as it violates the unspoken conservative norms that guide admin-
istration in fact if not in name' (ibid.). If I draw from Ricoeur's exposition
on ideology, discussed above, then 1can say that Kennedy is not asking
people to dream; instead, he is content with setting up an environment
which enables them to dream.
Insofar as an enabling environment has to precede the act of
dreaming, Kennedy's proposition seems unexceptionable. The dif-
ficulty in his position primarily arises from the 'us and them* polarities
that he creates to analyse the production of hierarchy especially
274 I Dhanda
as he at no point explains how and why similar polarities and hier-
archies will not obtain when the driving ideology is left instead of right
wing. This silence is especially pertinent because the link between left
ideology and authoritarianism has been so explicit and all-pervasive
in political governance.
Kennedy constructs his explanation for the all-pervasive hierarchy
at law school by closely analysing the operative everyday practices
at the school; his recipe for subverting the hierarchy is modest and
woven into these same practices. That these strategies will enable
students to obtain familiarity with left wing thinking seems acceptable;
what is definitely not clear is how these strategies will also subvert
the all-prevailing hierarchy of the system. In a manner of speaking,
these strategies proposed by Kennedy fall into just the trap which is
referred to by Tolle when he speaks of changing the world from the
outside without addressing the dysfunctionalities that may reside in the
individual. Since Kennedy does not take this egotic dysfunction into
account, he cannot visualise a situation where, despite a changeover
in ideology, there is a continuance of hierarchical oppression. It would
therefore seem that, if the stranglehold of hierarchical functioning has
to be loosened in the academy, individual players need to perceive
the limitations of structural reform, acknowledge the power of human
agency, and assume the concomitant responsibility. Since the previous
sentence could be easily dismissed as a rhetorical flourish, in the
last segment of this article I examine sites in the academy where the
individual teacher wields power, and dwell on what the responsible
exercise of such power would entail.
Responsible Exercise of Singular
Power in the Academy
Kenneth E. Eble, in an eminently readable book on the craft of
teaching, dwells at length on the various components of the same
(19/6). These include classroom management, delivery of lectures,
facilitation of discussions, selection of reading texts, allotment of
assignments, setting up of tests and awarding of grades. As Eble
discusses each of these issues, he requires the practicing teachers to
agonise on the various ways in which these tasks can be undertaken.
Thus, for example, while a large part of the transaction of teaching
takes place in the classroom, Eble asks individual teachers to reflect
on whether they, in fact, require such a congregation of the students.
How integral is the assembly to the task of learning? And what impact,
TheLaw TeacherintheAcademy I 275
if any, would a varied geometrical formation of the classroom furni-
ture have on the task of learning?
Even as Eble initiates enquiry on how much and what kind of
learning happens in the classroom, he proceeds with his analysis on the
assumption that classrooms are here to stay. Hence, the more important
issue then becomes how to regulate classroom transactions. What
should the teacher do to enhance class participation? Should students-
who prefer to undertake their learning activity in a more reclusive
manner be challenged or left alone? And should considerations of
equity trump concerns of quality that is, should the teacher gag a
confident, articulate student in order to give speaking space to a more
diffident one, even when the confident student may more effectively
contribute to the class discussion?
I think the questions raised by Ebie are importantand not so that
all practicing teachers can arrive at that one perfect way of managing a
class, but because there is no one way of managing a class. Practicing
teachers have to keep asking these questions with every new batch
they teach, and often with the same batch.
21
Thus, for example, I do
believe that a teacher should so manage her class that all students are
afforded an opportunity to participate. In order to provide this op-
portunity, if the more gregarious student has to be curbed, then so be
it. Some students will actively seek this opportunity, others need to
be especially invited, and still others have to be coached outside the
classroom before they summon the courage and confidence to speak
before their peers. To ask a student a question before he or she is ready
to answer can, in my opinion, destroy rather than foster confidence.
And a teacher has to work on her receiving transmitters to correctly
receive and process the signals emitted by the students.
Eble undertakes a similar kind of enquiry in relation to each of the
above mentioned issues. Thus, he asks queries to be raised on the kind
of issues which are best taught through lectures, what techniques make
for an effective class discussion, and how tests should be employed
to further the objective of learning. To that end, Eble asks a teacher
to persistently ask herself why she is administering a particular test,
and to delink the activity of testing from that of grading. He also sug-
gests student participation in testing and grading to democratise the
process.
21
A recent effort to this effect is Roy Stuckey's Best Practices forLegal
Education: A Visionanda RoadMap(2007).
276 I Dhanda
In my view, considering that career advancement for students is
directly routed through grades, if teachers adopt a supercilious or
arrogant perspective on the same, they only alienate the students. At
the same time, evaluation is amongst the grubby tasks of teaching,
22
I have, over the years, started to use examination papersand evaluation
as a learning site to evolve a one to one equation with my students.
I do this in several ways, such as by creating first principles problem
situations, in which the students are required to test the principles
that we have been discussing in the course. The students are also told
that there is no one right answer to the question, and more than one
way of approaching it is possible it is the effectiveness of their route
and the competence with which they employ legal principles to justify
their position which is being assessed. More importantly, this openness
allows me to learn from my students, from the patterns they discover
in the problem, from the interpretations they open up for me. As 1
cannot undertake the evaluation on the basis of a predetermined right
answer, there is a real opportunity to engage with the mind of each
student on a one to one basis. In order to enhance the transparency
of the exercise, I provide reasons for the grade accorded on every
script and allow students who are not convinced to persuade me
otherwise.
It would be appropriate, at this point, to clarify that the above issues
surrounding the craft of teaching have not been deliberated upon to
assess the comparative value of various ways of doing teaching, but
to show that, despite the so-called structural constraints, there are a
large number of decisions which have to be arrived at by the individual
teacher. These decisions are the public power of the teacher and hence
offer fair opportunity to her to engage with her personhood. However,
transparency and reflexivity need to be integrated in the execution
of these activities if they are to yield such results. Further, insofar as
the activity of learning is an interactional exercise, she need not limit
22
The demands of the market require universities to evaluate their students
and certify to the world outside what their expectations could be from different
categories of students. Unfortunately, this necessary evil has in it the potential
to hijack the entire learning programme. Consequently, it is wise that teachers
explore the learning possibilities of this exercise and thus prevent it from taking
over the teaching programme. These opportunities are more clearly available
to teachers in universities which adopt internal assessment. For some best
practice guidelines, see Eble (1976:235-63).
TheLaw TeadierintheAcademy I 277
herself to individual experiments, but can be open to collective ex-
periments on the basis of respectful dialogue with students and col-
leagues. And that can happen when teaching is perceived in the way
in which Eble sees it 'as presence of mind and person and body
in relation to another mind and person and body, a complex array of
mental, spiritual, and physical acts affecting others' (1976: 8).
It is this complex comprehension of the craft of teaching that causes
Eble to devote an entire chapter to situations which present major
ethical dilemmas to the teacher, such as cheating, plagiarism, faking,
hostile students, bad classes, flattery and student adulation. Eble
deals with each of these issues as a humanist educator, where he asks
solutions to be sought on a case to case basis in acceptance of human
frailty, and to examine the root causes of the breakdown situations
instead of riding the high horse of perfection and morality.
23
To the extensive list provided by Eble, I just wish to add the prac-
tice of providing recommendations. I add this procedure primarily
because it is amongst the few practices which operate totally on the
strength of individual judgment, and hence is a good site for the
individual teacher to reflect on how the academy should be peopled.
How should student effort be rewarded? Should entry into academia
be determined only on the basis of consistently high grades, or should
the teacher assist in comebacks and evolution by explaining earlier poor
grades and subsequent growth and development? At my university,
where the undergraduate programme is primarily constituted by
mandatory courses in mercantile laws, I have a number of outstanding
deep-thinking students whose grades drop because they are unable to
perform the feats of memory required to score well in those courses.
The question then is, should these students be disadvantaged for
their inability to bend for the system, or should other educational
institutions, scholarship foundations and prospective employers be
provided a coherent explanation? Again, even as there is need to debate
and discuss the values informing the practice of recommendations,
my reason for referring to them here is just to show that this is one
more site for reflection and ethical practice available to the individual
23
Thus, for example, while dealing with the issue of plagiarism, even as
he condemns the practice, andhe asks teachers to ponder on the confusion
surrounding the definition of the practice, and the extent to which mechanical
mindless assignments and lazy, inattentive and delayed evaluation contribute
to it.
273 I Dhanda
teacher. A disproportionate emphasis on structural reform prevents
reflection by the individual person on the choices that he or she needs
to make. In the absence of reflection, the power for harm and good that
subsists at such places is also not appreciated, and the responsibility
for the responsible use of such power is not assumed.
Conclusion
Since I have, in this article, underlined the importance of human agency
in any social change enterprise, I have placed a disproportionate
emphasis on this phenomenon in the body of the article. Despite this
disproportionate emphasis, I am not dismissing the importance of
structural reform; what I have been objecting to is an exclusive en-
gagement with it. In fact, it is my contention that our understanding
of social change would be partial and incomplete if we adopt mech-
anistic, single cause explanations for the same. The induction of human
agency in the change process is induction of a highly unquantifiable
variable, and the wide diversity of the variable unleashes unlimited
possibilities on the direction of change. Just the acknowledgement
of these unlimited possibilities, without more, restores autonomy to
an individual. And this restoration is necessary if the more ambitious
social justice programmes are to strike root, be it in the academy or
outside.
The case for multiplicity of causes and outcomes is strengthened
with the abandonment of single causes and dichotomous explanations
in the physical sciences: the mind-body divide giving way to the
mind-body continuum, the Newtonian single cause, definite outcome
mechanistic physics being replaced by the multiple cause, uncertain
outcome paradigm of quantum physics.
24
This new paradigm caused
Niels Bohr, a leading exponent of the same, to ask for human under-
standing of the complex reality of truth when he sagaciously pointed
out that, 'the opposite of a correct statement is a false statement.
But the opposite of a profound truth may well be another profound
truth' (Wilbur 1974). If the paradigm of the new physics contributes to
human acceptance of the simultaneous presence of several profound
truths, then just the acceptance of this reality could substantially
21
For a layperson's accessible account of the developments see Capra
(1982). '
The Law Teacher in the Academy I 279
contribute to a scientific interrogation of prejudices,
25
Thus, the distrust
of human agency and the need to control it can be viewed as an example
of a deep-seated prejudice against humans generally, and persons who
are lower in the socio-economic power hierarchy, more particularly.
To dispel this prejudice, it is necessary that the unparalleled positive
energy of human agency be continually explored and foregrounded.
I have, in this article, attempted to do the same in the context of the law
academy, in order to bring home the fact that other education reforms
will not find their target without the empowerment of the individual in
the academy, be it teacher or student. For a teacher to empower the
one in her student, she needs to realise the power of her own one.
And for a student to be a part of this venture, we require conscious
garnering of individual imagination, initiative and enterprise.
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