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Thoughts on legal mobilization and academic citizenship

by Eva Rieter

This Blog was inspired by the publication of the first Clinic research report of the 2021-2022 project on undocumented Surinamese and the colonial past. It touches upon some general issues concerning legal mobilization and academic citizenship.

Legal mobilization

As lawyers and also as legal academics we are very much focused on litigation, legal procedures before other (quasi-)judicial fora, or mediation that may ensure access to justice for individuals and groups. But of course the law plays a role in other domestic and international fora as well, whether parliament, ministries and oversight bodies at the domestic level, or political and administrative bodies at the regional and international level. Here too, domestic and international law may play a role, often to freeze a status quo perceived by many as unjust. But not always. Sometimes the law is indeed mobilized to achieve access to justice for those groups whose rights had previously been denied/ignored. This can be done by examining actual legal practice and assess it based on higher law or commonly agreed underlying principles.

As lawyers we often have a misconceived understanding of causality, as if legislation or case law in itself causes change. Instead law can play ‘a’ role in achieving changes. We cannot exactly pinpoint the results of what we do as lawyers, but each of us has a role to play and by taking part in the clinic you are exploring how to increase your role in community service, as an academically schooled lawyer. In the clinic groups, researching for specific projects, you can enhance that role, exactly because you work together, and for a purpose, and because you interact with organisations in the process.

Of course, just as you cannot expect to singlehandedly achieve access to justice for groups whose access has been denied, 6-8 hands alone also do not do the trick. Nevertheless, by contributing considerable time and effort to provide a thorough piece of research as a group, you can give a modest contribution to legal mobilization. Moreover, you are learning things you can use for your next projects, in other settings. One of them is that you experience, to some extent, a Community of Practice, and another is that this gives you a chance to reflect on your own role(s) in achieving access to justice.

Access to justice

Access to justice for individuals and groups is only truly that when the rights holders whose rights have been denied are the ones to indicate what are the changes they need. They are the main agents mobilizing for change. As lawyers it would be rather contradictory to argue for something that these agents have no interest in, or to argue in a way that is contrary to their values and disrespects their dignity. This means that it is very important find out whose rights and interests are claimed, by whom, and who represents whom. Therefore a really important criterion in human rights lawyering is putting your efforts where the main change agents in a community find it is most needed and doing so in a manner that confirms rather than undermines their values. But it is not always easy to determine and the communities concerned may be have conflicting interests as well. Or we may not be aware of all the communities concerned.

At the same time, lawyers are approached to provide their legal expertise. This is the case whether they are legal counsel litigating cases or other legal practitioners, as well as when they are law students or legal academics. When we intend to invoke the law, and also when we do so in order to help change another piece of law, as lawyers we generally do so from within the existing legal system. There are some legal ‘facts’ that we need to ‘find’, even if we take a more relativist approach to both, and there are some established interpretation methods that we must identify. We cannot argue just anything and this applies all the more when we wish to adhere to academic values. We need to contribute with our legal expertise, and our academic insights.

Academic citizenship

We can research the applicable law and explain the hurdles and benefits of certain legal argumentation. We can discuss higher levels of law. We can discuss underlying legal principles that inform the law and we can look for inspiration in other legal systems that are not directly applicable in the case at hand. We cannot invent law and say it exists, simply because it would be nice.

In my view, as academic citizens, in addition to adhering to principles of independence, scientific integrity, academic freedom, thoroughness and thoughtfulness, and respectful and ethical behaviour, there are also citizenship values to adhere to, such as (next to the aforementioned respectful and ethical behaviour), curiosity, awareness (of our own role and position, of other perspectives) and moral leadership. In fact, these values can only enhance the academic work, as well as the wish to serve the local-international community.

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