Irrespective of where you stand on the relationship between law and the feminist movement, it is undeniable that the law has immense power over our lives. The law is ambiguous and inaccessible to the majority of people, who are only able to access the law through lawyers. The biases of lawyers and judges who interpret the law often shape how it is actually implemented.
Since lawyers – and especially judges – tend to mostly be upper-caste men from specific backgrounds, their biases tend to benefit their own privileged groups by worsening disadvantages against minority groups. For instance, there have been trends of judges upholding narrow theories of consent in matters of sexual assault and of the uncritical importance given to the idea of “merit” in considering reservations.
I propose that the biases held by judges and lawyers are not only unchallenged but actively reinforced by the teaching methods in law schools. The law is often taught through a legal positivist method, which focuses only on the text of the law and variations brought about to it through case law.
The historical context of the law, if discussed at all, is limited to the bare minimum. Three slides at the most. The historical/social context of judgments or the internal biases of judges are rarely discussed. They are only brought up if the course deals with social sciences or if the course teacher is personally inclined to discuss these factors.
The supposed neutrality of the law is reinforced through the foundational courses in Legal Methods and Jurisprudence, where the concept of the Rule of Law is given supreme importance. The Rule of Law gives importance to the idea of the law applying to everyone, irrespective of their circumstances.
Since lawyers and judges tend to mostly be upper-caste men from specific backgrounds, their biases tend to benefit their own privileged groups
While the idea that the law must apply equally to everyone is promising in theory, in practice, treating everyone as formally equal only reinforces disadvantages. However, ‘law’ and ‘politics’ are considered to be two separate fields in most theories of jurisprudence.
Critical theories are an exception to this idea of the law being separate from politics. Feminist legal methods, critical race theory and critical legal studies view the law as an expression of the politics of dominant groups. They assume that the neutrality of the law is a myth. By its very design, the law protects the interests of the privileged.
For instance, the majority of criminal offences in the United States deal with protecting property, rather than protecting people. Foreclosure laws in the United States make it more difficult for the black middle-class to own homes as compared to the white middle-class. Closer home, in the Indian Constitution, only the fundamental rights, which provide for formal civil and political liberties, are enforceable.
The directive principles of state policy, which actually enable changing the social and economic conditions of people, cannot be enforced. Unsurprisingly, critical theories which raise questions like these form a very small portion of the syllabus at my law school. The main focus continues to remain on the writings of (primarily white and male) English and American legal scholars.
Some foundational courses – such as ethics – are even more problematic. Not only was our ethics course devoid of any writing by marginalized voices, but historical thinkers and jurists with regressive views continued to remain part of the syllabus.
I remember a reading on the Seven Lamps of Advocacy (1923) by Justice Abbott Parry, who states: “[E]very pleader who acts in the business of another should have regard to four things: First, that he be a person receivable in court, that he be no… woman.” Of course, this aspect of his beliefs was not discussed in class.
It would be unfair to state that critiques of the law are not allowed in law school. On the contrary, most good professors encourage their students to examine contentious laws and write about them. However, these critiques are grounded in abstract theory rather than looking at the law as an expression of politics.
In a debate on reservations, for example, a student of constitutional law would be encouraged to look at the matter from a perspective which does not consider caste. In other words, the most important factor in criticising a decision on reservation would be its consistency with previous decisions. The impact of the law on different caste groups would be irrelevant, as long as “the law” was consistent. This assumed that the law is set in stone, and could not be altered to suit the changing needs of people.
If “the woman question” is ever brought up in law school, it is done in courses that are believed to be connected to women-related issues, such as family law. However, even then, it is a specific set of (privileged) women who are discussed in the syllabus.
Our family law professor did an excellent job of covering the personal laws of all major communities. The syllabus, however, constrained her from looking in more detail at issues like the impact of tenancy laws, the impact of gendered rights on transgender subjects, or the diverse personal laws applicable to the tribes in the North-East. While, to her credit, she did assign projects on these issues, a classroom discussion would have been more impactful.
The dismal consideration of women in the law is matched by the lack of any attention at all to caste as a legal subject. Discussions on caste are confined to the social sciences courses: Sociology and History. However, when it comes to the law, such teaching is absent. The SC/ST Atrocities Act was not even mentioned in our criminal law course, and our constitutional law course was extremely critical of the notion of reservation.
The main focus continues to remain on the writings of (primarily white and male) English and American legal scholars.
There was no discussion on caste in our courses on labour law, environmental law, or human rights law – all of which could have led to some extremely important discussions. While we were lucky to have had a comparative course on caste and critical race theory, it must be said that this course was offered as an elective. Moreover, it could not, by itself, cover all of the aspects discussed here.
It is impossible for law schools to completely do away with the legal positivist method, and I am not arguing for the same. In order to be able to engage with the present legal system, lawyers need to be able to understand how it functions. A legal positivist method is certainly required to that extent. However, the idea that the law is neutral, and separate from politics and social context, must be done away with.
Critical methods of analysing the law have to occupy a larger part of the curriculum and must be taught from the very beginning of law school. The application of these methods must continue to be reinforced wherever possible, if not through teaching, then through student presentations and projects.
For example, students must be taught to ask questions about how laws would impact women, Dalits, Adivasis, disabled persons when the law does not explicitly deal with them. Social science subjects must be accorded the same respect as the law and must be integrated with the teaching of legal subjects wherever possible. Law professors should also move away from relying solely on European and American writings, and look at introducing more diverse scholarship to students.
The law is about much more than just getting the right contract or company transaction to come through. Hopefully, legal education in India will someday recognize that.
Featured Image Credit: bLAWgical thinking
This account stems from the personal experiences of the author, as well as from her discussions with law students from other universities, and does not intend to stand in as a universal experience of all law students. The author is grateful to Manisha Arya of National Law School, Bangalore and Padmini Baruah of the Abdul Lateef Jamal Poverty Action Lab for their feedback and comments.