Rethinking the Legal Reform Agenda: Will Raising the Standards for Bar Admission Promote or Undermine Democracy, Human Rights, and Rule of Law?
Russell G. Pearce
Fordham University School of Law
Samuel J. Levine
Touro College - Jacob D. Fuchsberg Law Center
May 11, 2010
Fordham Law Review, Vol. 77, pp. 1635-1663, 2009
Fordham Law Legal Studies Research Paper No. 1402783
Pepperdine University Legal Studies Research Paper No. 2009/8
This Article offers a critique of, and alternative to, the American Bar Association's efforts, supported by the United States government, to promote the requirement of a college education in law as prerequisite for becoming a lawyer in developing countries. Using the examples of China, which currently has a far more open system for becoming a legal services provider, and South Africa, which already has a system consistent with the goals of the ABA, the Article argues that more stringent education requirements actually undermine democracy, human rights, and rule of law. In China, where the most significant advocates for human rights under law are peasant lawyers without college degrees, the requirement would directly harm human rights efforts. Moreover, the requirement would dramatically decrease the number of legal services providers in a country with few college graduates, thereby minimizing access to justice and public education on rule of law, while increasing authoritarian government control of the legal profession. In South Africa, the existing requirement of a college degree in law extends the harmful legacy of apartheid in the legal system, delaying the entry of non-whites into a legal profession that is overwhelmingly white, in addition to promoting continuing inequality in a system where the college attendance rates of non-whites are still below the rate for whites. Accordingly, the requirement impedes the realization of democracy and equal justice in the South African legal system, while preventing lawyers from serving the important function of educating the public on human rights and rule of law.
As an alternative, the Article suggests the model that the United States employed prior to the 1930s,when entrance into the legal profession was relatively open. As a result of less restrictive admissions standards, lawyers played a key role in promoting equal rights and justice for, and democratic values among, nineteenth and early twentieth century white Americans - most prominently, communities of immigrants from authoritarian nations, while at the same time laying the foundation for efforts to secure formal legal rights for Women and People of Color.
Drawing from these examples, the Article proposes that reform advocates abandon efforts to replicate the modern American model in favor of more inclusive education standards no greater than necessary to ensure a threshold level of competence in legal representation. This approach would instill a greater sense of empowerment throughout the legal system and a stronger sense of respect for the law among all members of society.
Number of Pages in PDF File: 30
Keywords: lawyers, legal profession, legal reform, South Africa, China, legal history, rule of law, human rights, democracy, bar admission, legal education, developing nations, countries in transition
Date posted: May 13, 2009 ; Last revised: July 22, 2013