Mixed Legal Jurisdictions and Clinical Legal Education: Latest Trends
There seems to be no consensus on what is meant by mixed legal systems or mixed jurisdictions (Palmer 2008). The classic approach is to limit mixed jurisdictions to private law systems based on a mixture of common law and civil law (Palmer 2008: 7). The modern, broader approach is to take a legal pluralistic approach that regards mixed jurisdictions as involving two or more different legal systems or traditions within a country’s legal system (Palmer 2008: 13). Given the trend toward the globalization of legal practice and legal education, particularly clinical legal education (see generally Bloch 2011: xxv), I intend to adopt the broader pluralistic approach for the purposes of this chapter.
According to the broader approach, the following mixed systems can be identified: (a) mixed systems of civil and common law;1 (b) mixed systems of civil and customary law;2 (c) mixed systems of civil, common, and customary law;3 (d) mixed systems of civil and Islamic law;4 (e) mixed systems of common and customary law;5 (f) mixed systems of common and Islamic law;6 (g) mixed systems of civil, Islamic, and customary law;7 (h) mixed systems of common, Islamic, and customary law;8 (i) mixed systems of common, Hindu, Islamic, and customary law;9 (j) mixed systems of civil, common, Indian, and Islamic law;10 (k) mixed systems of civil, common, Jewish, and Islamic law;11 (l) mixed systems of civil, common, Greek Orthodox, and Islamic law;12 and (m) mixed systems of Islamic law and customary law.13 However, the list is not closed, and other the types of mixed legal systems may exist.
Given the broad definition of mixed jurisdictions, this chapter deals with the following issues:
• What is clinical legal education?
• What types of clinical legal education programs exist?
• What types of skills are taught in clinical legal education programs?
• Why are interactive teaching methods used in clinical legal education programs?
• Which mixed jurisdiction countries have adopted clinical legal education?
• How are clinical legal education teaching methods affected if they are used in mixed jurisdiction law schools?
• How does the service component of clinical legal education work in mixed jurisdictions?
What Is Clinical Legal Education?
Clinical legal education is an interactive, reflective method of teaching practical legal skills to law students in a social justice context. During the process, students are confronted with real-life situations and play the role of lawyers to solve legal problems. They do so by interacting with clients or each other to identify and resolve legal issues, and they are subjected to critical review by their teachers or peers. Clinical legal education enables law students to play an active role in the learning process and to see how the law operates in real-life situations (Brayne, Duncan, and Grimes 1998: 1).
Clinical legal education provides law students with the tools that lay the foundations for their future careers as lawyers. Whereas traditional legal education tends to focus on the theoretical content of the law and to be knowledge based, clinical legal education goes further and provides law students with the necessary skills for legal practice. It also inculcates values such as the duty of lawyers to become involved in social justice issues in society and to display professional responsibility while practicing law (McQuoid-Mason and Palmer 2007: 10).
In most countries, the mission of clinical legal education is to teach law students practical legal skills in a social justice setting (compare with McQuoid-Mason 2000; see also McQuoid-Mason 2002). Social justice refers to the fair distribution of health, housing, welfare, education, and legal resources in society (compare with Bhagwati 1987; Honoré 1968: 68). Social justice is concerned with satisfying what poor people need rather than providing what they want. Clinical legal education programs play a valuable role in this respect.
What Types of Clinical Legal Education Programs Exist?
Clinical legal education programs vary greatly, depending on their educational objectives, the client target group, and the method of service delivery used. Examples of different service delivery components of clinical legal education programs include the following: (a) campus clinics,14 (b) off-campus clinics,15 (c) mobile clinics,16 (d) farm-out clinics or externships,17 (e) community clinics,18 (f) street law-type clinics (discussed later), (g) alternative dispute resolution clinics,19 (h) legislative drafting clinics,20 (i) clinics teaching legal study skills,21 (j) mixed clinics,22 and (k) simulated clinics.23 Again, the list is not closed.
The two most common types of law clinics used in clinical legal education programs are live client clinics and legal literacy or street law-type clinics.
Live Client Law Clinics
Clinical legal education programs involving live client law clinics include both academic and service components. The former require classroom attendance, and the latter require work in a law clinic.
In clinical legal education programs that are fully integrated into the law curriculum, law students are given academic credit for their work and assessments as in any other law course. The academic part of these programs involves students attending lectures or seminars and taking practical classes on the types of topics that are handled by the clinic during the service component in the law clinic. The emphasis is placed on skills training, and the students are evaluated according to the academic rules of the faculty.
In programs that are not fully integrated into the law curriculum, the faculty may require students to participate in the program on a “duly performed” basis. In such a program, academic credit is not given, but participating students have to complete the program satisfactorily to fulfill the graduation requirements of the faculty. These programs also usually include mandatory classroom work on skills training so that the students are able effectively to deal with the service component of the clinic.
Some programs are entirely voluntary and place much less emphasis on academic work. These programs tend to provide some training in the skills required in a law clinic but may not have a mandatory classroom component (see generally McQuoid-Mason and Palmer 2007: 10–11).
Traditional clinical legal education programs, particularly in developing countries, require students to service live clients under supervision in a law clinic. Very often these programs are held in general practice clinics that take walk-in clients.24 The students usually give advice to clients and act as clearinghouses for other agencies (compare with McQuoid-Mason 1985: 64).
In the more advanced clinics, law students may assist qualified lawyers to litigate. In some common law countries, such as the United States, and mixed legal systems, such as the Philippines, certain students may even be allowed to appear in court under “student practice rules” (compare with Walker 1980: 1101).25 In countries with civil law procedural rules that allow people other than lawyers to appear on behalf of litigants in civil cases, law students may also be able to represent clients in court.26
The challenge for live client clinical legal education programs is to balance the academic work required of students during their law degree with their duty to provide legal services to poor and marginalized clients in the law clinic (see generally McQuoid-Mason and Palmer 2007: 10–12).
Street Law-Type Clinics
Street law-type clinics are legal literacy programs conducted by law students, usually aimed at high school children, prisoners, and others (see generally McQuoid-Mason 1994). In street law programs, students are taught to teach the law using interactive learning methods. During the process, students are often asked to give advice about practical aspects of the law.
As in the case of live client clinics, street law students are subjected to critical review by their teachers and peers. Street law-type clinical programs also have academic and service components (compare with McQuoid-Mason 2000; see also McQuoid-Mason 2002).
Street law-type programs that are fully integrated into the law curriculum give law students academic credit for their work as in any other law course. The academic component of street law programs involves classroom work. In street law, students are trained to use different types of interactive learning methods to teach schoolchildren, prisoners, or other people about law, human rights, and democracy. Although the emphasis is placed on how to teach interactively, students are also taught lawyering skills such as preparing a mock trial and thinking on their feet. Where street law is a credit course, the students are given grades for their work.
Where street law programs are not fully integrated into the law curriculum, some faculties require students to participate in the program on a “duly performed” basis as part of community service projects. Although no academic credit is given for such courses, participating students are required to complete the program satisfactorily in order to graduate. Even though street law is not a credit course, students have to learn how to use interactive teaching methods.
Street law programs that are entirely voluntary place much less emphasis on academic work. These programs, however, still require the students to be trained in street law teaching skills (for example, in a one-off workshop) but may not have a mandatory regular classroom component (see generally McQuoid-Mason and Palmer 2007: 12–13).
The service component in street law programs requires students to go into high schools, prisons, or other organizations and to teach the target audiences about the law. To do so successfully, students have to be taught how to use interactive teaching methods (see generally McQuoid-Mason 1994).
In street law programs, students give limited legal advice. They usually refer more complicated inquiries to a traditional live client law clinic or recommend that the person seek legal advice from the state legal aid scheme or a private lawyer.
The challenge for students participating in street law-type clinics, as for those participating in live client clinics, is to balance their service work with their other academic work.
What Types of Skills Are Taught in Clinical Legal Education Programs?
Skills Taught in Programs with Live Client Clinics
The clinical legal education curriculum at law schools with live client clinics usually includes the following lawyering skills: (a) client interviewing, (b) client counseling, (c) trial advocacy, (d) negotiation, (e) critical thinking, (f) problem solving, (g) drafting, and (h) oral and written communication skills (McQuoid-Mason and Palmer 2007: 85–86). The majority of these skills are required irrespective of whether law students are studying in common law, civil law, religious law, or traditional customary law mixed legal systems. Even in jurisdictions that do not allow litigants to be represented by lawyers, law students can still be trained in ways to advise lay clients to represent themselves using lawyering skills.
Client interviewing and the taking of instructions are very important because they occur at the first point of contact between lawyers and clients. Students have to be taught how to put their clients at ease and how to build trust between themselves and their clients. They must learn how to make their clients feel free to tell them everything that is relevant. Client-centered interviewing techniques must be used to ensure that the lawyer has a clear understanding of the client’s needs and requirements (Alexander 1997: 12; Twist 1992: 20).
Client counseling involves the lawyer advising the client once he or she has helped the client identify what the issues are. Students need to be trained to take a client-centered approach to counseling. Clients should be given choices regarding the alternative procedures that could be followed and encouraged to make an informed decision on the course of conduct they would like to follow (Chapman 1993: 25). This approach applies whether or not clients will be represented by lawyers or are being advised by lawyers on how to represent themselves in a religious or customary law court.
Trial advocacy skills require law students to be trained in case analysis, trial preparation, and case presentation and questioning (for example, in common law systems, including opening statements, leading evidence in chief, cross-examination, reexamination, closing arguments, and so on). The skills taught will vary according to whether common law adversarial or civil law inquisitorial court procedures apply. Students need to practice the oral and written skills necessary to prepare for, and conduct, a case in court (see generally Palmer and McQuoid-Mason 2000: 32).
Negotiation is a skill that all lawyers require because most of the cases they deal with will involve attempting to reach an agreement about something. Students need to know that litigation is not the only way to settle disputes. They also need to understand the importance of principled negotiation (see generally Fisher and Ury 1981). Law students in clinic situations spend a great deal of time negotiating and need to understand the dynamics involved (see, for example, Lee and Fox 1994: 150–51). In specialist alternative dispute resolution clinics, students may also need to be trained in mediation techniques, including how to listen, what steps are involved in the mediation process, and how to draw up a mediation agreement.
Critical thinking requires students not simply to accept what the law is or what the courts or textbooks say the law is. Students should be encouraged to question legal principles and solutions offered and to think creatively about how they can help clients to solve problems using both legal and other remedies.
Problem solving is the essence of legal practice. When problem solving, students should be able to identify the issues, generate alternative solutions to the issues raised, and develop a plan of action. They should learn to be open to new information and ideas and to be flexible in their approach while dealing with problems (Iya 2000: 62, 67).
Students in law clinics may be required to write letters and draft documents, such as pleadings, contracts, wills, leases, and other legal documents. They need to be taught these skills before they attempt to undertake writing and drafting tasks on behalf of clients. The clinics need to imbue law students with a commitment to accurate and good drafting techniques (Barnhizer 1990).
Communication is the lifeblood of legal practice. Law students need to be trained in both oral and written communication skills. These skills include use of words, thinking skills and logical reasoning, speaking skills, reading skills, and writing skills (Palmer, Crocker, and Kidd 2003: 3–84).
Skills Taught in Programs with Street Law-Type Clinics
Students in street law-type clinical legal education programs acquire the following necessary skills for lawyers: (a) writing skills, (b) communication skills, (c) ability to think on their feet, (d) trial advocacy skills, (d) critical thinking skills, (e) problem-solving skills, and (f) oral skills (McQuoid-Mason 2008: 36).
Street law students learn to develop their writing skills preparing lesson plans, writing reflective essays, and developing mock trial packages.
Street law students develop the important lawyering skill of being able to communicate the law and legal principles to laypeople in simple language.
Ability to Think on One’s Feet
Street law students have to learn to think on their feet when responding to questions from learners. This skill is crucial for lawyers, particularly those involved in court work, because they may have to answer questions from the bench.
Trial Advocacy Skills
Street law students learn trial advocacy skills when training their target audiences to prepare for mock trials by teaching them about court procedures, the rules of evidence, ways to question the accused and witnesses, and ways to make closing arguments. Teaching others is one of the best methods of learning.
Critical Thinking Skills
Street law students learn about social justice and the public’s perceptions of the law and the legal system. Doing so enables the students to think critically about the legal system and how it operates in practice.
Street law students are continually faced with the types of practical problems experienced by their target audiences. This challenge gives students an opportunity to develop their analytical skills to identify and solve legal problems.
While using interactive teaching methods to conduct community legal education programs, street law students develop confidence in public speaking and the ability to interact with school learners and the community in general.
Why Are Interactive Teaching Methods Used in Clinical Legal Education Programs?
Unlike traditional methods of teaching the law, clinical legal education is student-centered rather than lecturer-centered. To achieve a student-centered experience, clinics use a number of interactive methods to train students in legal skills and to sensitize them to social justice issues.