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Pedagogies of Justice : Critical Approaches to Public Legal Education

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Pedagogies of Justice : Critical Approaches to Public Legal Education BIROn - Birkbeck Institutional Research Online Enabling Open Access to Birkbeck’s Research Degree output Pedagogies of justice : critical approaches to public legal education https://eprints.bbk.ac.uk/id/eprint/44178/ Version: Full Version Citation: Wintersteiger, Lisa (2020) Pedagogies of justice : critical ap- proaches to public legal education. [Thesis] (Unpublished) c 2020 The Author(s) All material available through BIROn is protected by intellectual property law, including copy- right law. Any use made of the contents should comply with the relevant law. Deposit Guide Contact: email Pedagogies of justice Critical approaches to public legal education Lisa Wintersteiger School of Law Birkbeck, University of London. Submitted for the degree of Doctor of Philosophy for the University of London August 2019 Declaration I hereby declare that the work presented in this thesis is my own, except where explicit reference is made to the work of others. 2 Abstract Public legal education is generally understood as a set of informal educational practices aimed at improving access to justice and social cohesion that predominantly focus on marginalised or disadvantaged populations. Public knowledge of law and its associated informational and educational practices provide a decisive locus for the legitimizing function of the normative ideal of the rule of law with its underpinning assumptions of security and stability. These ideals occlude a legacy of violence and political oppression that haunt the legal order, an erasure that is perpetuated when legal education is inattentive to its political- philosophical underpinnings. The pivotal role of public legal knowledge also carries the possibility of alternative critical engagements with justice systems that fundamentally interrogate the juridical-political order. This alternative possibility is explored in light of readings drawing from Critical Theorists of the Frankfurt School (Walter Benjamin, Theodor Adorno, Max Horkheimer), through whom we encounter a reading of the problem of law as evidence of the violent founding (and preservation) of any political community. Their insight not only helps us to think differently about the inherent instability of the liberal legal order, but also suggests alternative pedagogical approaches attuned to the danger of the positivistic and technocratic rationalities of law. What these thinkers share, above all, is a lack of faith in progress in the advance of human civilization and modern institutions of justice. The refusal of a linear historicism of law (as process, trial or as tradition becoming law) also engages a negative utopianism that offers a way to think about public legal education as a form of counter-education. This opens a space of contestation with the presuppositions of law and legal orthodoxies, as community educators attempt to work with and against law. A sustained concern of the thesis is to reconceive the public’s ability to analyse and critically engage with law and the justice system as fundamental to the constitution of the body politic, and to explore the development of counter-hegemonic educational strategies. 3 Table of Contents Abstract 3 Acknowledgements 4 Table of Contents 5 Introduction 6 1. The radical roots of public legal education 21 Defining public legal education 28 The Anglo-American emergence of the public legal education 38 Legal needs studies and access to justice 52 2. Public legal education and the rule of law 73 Formal and substantive accounts of the rule of law 78 Public legal education in global rule of law developments 83 The enlightenment ideal of the rule of law 91 The rule of law and the sovereign state 95 3. Fated orders: Law, myth, guilt 112 Critical Theory and the Frankfurt School 117 Critical Theory and the liberal rule of law 127 Mythic violence and the origins of law 135 4. Critical theory, critical pedagogy: Hope in the past 155 Philosophies of education: From early civics to socially 159 transformative accounts of public legal education Critical theory and critical pedagogy 172 On study: Kafka and Benjamin’s gateway to justice 187 5. Conclusion 206 Bibliography 219 4 Acknowledgements This thesis is profoundly indebted to the patient oversight and generous help of my two supervisors, Dr Sarah Lamble and Professor Lois Gander. Both as passionate activists and as academics, they have lent wise council as well as comradely support throughout. I was incredibly lucky to have been surrounded by a large, stimulating and warm PhD community at Birkbeck. We discussed, critiqued, marched and danced through our time with the School of Law sharing a politically and intellectually demanding environment that helped us collectively to reach the ends of our various projects. Too many to name here, but in particular I would like to thank Tara Mulqueen, whose friendship and careful reading of many parts of this thesis I were invaluable. Dear comrades and interlocutors Dr Elena Loizidou, Basak Ertur, Maria Carolina Olarte, Soo Tian Lee, Paola Pasquali, Richard Bowyer, Mayur Suresh, Hannah Franzki, Tshepo Madlingozi, Kanika Sharma, Alexandra Koenig, Barbara Kraml, and Dan Matthews. I was also privileged to work closely on parts of the thesis with Dr Thanos Zartaloudis and Dr Anton Schütz whose historical and theoretical insights shaped patient reading and re-read of Walter Benjamin as well as encouraging my own ideas. Enormous thanks go to Laura Corballis for excellent editorial support. Over the period of the project I was also engaged in establishing an education charity, which provided frequent inspiration for research and informed the ideas presented. I cannot repay the kindness, encouragement and mentorship of Sir Henry Brooke, his unshakeable belief that “every good idea has its day” frequently buoyed flagging spirits. For the Board and staff at Law for Life who allowed me time to pursue and complete such a significant undertaking and take my hands off the steering wheel now and again, I am deeply grateful and endlessly proud of that we have achieved. I have the privilege of being surrounded by a community that has supported me in a myriad of ways. To mention just a few people who have kept me going and brought light, laughter and solace along the way, thank you Shane Collins, Spencer Marshall, Alessandro Risorto, Anna Rogers, Jamie Kelsey. My long suffering and extraordinary family: David, Sebastian, Brigitta, Iliana, Alice and Alex. I love you all. 5 Introduction This research project has evolved over two decades of working at the intersections of law, education and poverty. It began in the North East of England in the 1990s with the Citizen’s Advice service supporting people with a multitude of complex and interrelated legal issues; helping them to secure welfare entitlements, defend evictions and negotiate with creditors. Working in welfare rights and subsequently teaching and supporting others in the field, provided an early grounding in law and education, albeit only with a partial and limited knowledge of the workings of the justice system. What became increasingly urgent to attend to in the daily work of advocacy and legal advice was the abject effect that a lack of knowledge of rights and entitlements alongside a basic understanding of the legal system had on people’s lives. Moreover, with a limited supply of expert advice how this lack of knowledge served time and again to compound marginalisation and trap people in cycles of poverty and disadvantage. It also led to growing discomfort about the power imbalances, dependencies and hierarchies inherent in the relation between adviser and client. In later years, this led to a growing interest in the value of legal education as a way of intervening more holistically in the lives of people who would repeatedly encounter legal problems. Developing strategies for self- advocacy and legal techniques to defend and protect the rights of the most disempowered people against more powerful actors became central to my work and research interests. What was most fascinating, then and now, in the creation of ad hoc educative spaces, was the fertile ground they provide for reimagining what law means and how alternative voices exploring and engaging with the justice system could serve to remake and rethink the political and legal landscape. This thesis has grown out of those spaces and from those people, from the belief that the most fertile imaginaries for justice come from those for whom justice can’t be taken for granted. Over the last decade this belief has guided my research and teaching endeavours. In 2011, I co-founded a charity and education foundation to support public legal education in the United Kingdom. A decade of designing and testing 6 public legal education practices left many structural and theoretical questions unanswered. The purpose of this thesis is to address the central research question of how political and philosophical theories influence public legal education practices, and how, in turn, these practices come to shape the juridical-political order in which they are deployed. The emphasis on political-philosophical underpinnings results in some limitations to the scope of the project, in particular the lack of systematic exposition of public legal education practices as they exist today or that might be gleaned from a systematic literature review of global practices. Moreover, the approach to political theory has focused on the development of liberal and subsequently neoliberal legal theory, its proponents and detractors. Wider research into
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