Teaching to the Paradoxes: Human Rights Practice in U.S. Law School Clinics
Maryland Journal of International Law, Vol. 26, No. 10, 2011
29 Pages Posted: 27 Oct 2011
Date Written: May 1, 2011
International human rights clinics share the “principle that globalization both changes the law and is in turn changed by it, an assumption that challenges traditional notions of state sovereignty and the salience of domestic legal regimes, and acknowledges the resulting transnationalization of legal, political, and economic systems and the generation of new global institutions.” International human rights clinics have to navigate the substantial tensions in the law itself. International law is simultaneously orthodox and innovative, a paradox that, in fact, challenges legal education on the whole. Law students should graduate knowing not only the “black letter” norms and principles but also being able to critique the rules and anticipate changes in the field. International human rights law is intrinsically evolving, and even as it evolves, it must constantly justify its efficacy by re-asserting its foundational tenets.
For decades, critical legal theorists have censured the doctrinal method taught at law schools for failing to probe – the social, economic, and political conditions underpinning legal doctrine, legal process, and particular legal results. Consequently, little space is devoted to discussion about the role of values, voices, emotions, and political choices – in both legal process and substantive outcomes.
Fundamentally, clinical legal education asserts that the law is not neutral; it teaches students to read between the lines of legal doctrine and look for the multiple stories that lie within. Clinical legal education aims to impart a sense of professional responsibility for social justice, to expose students to methods and skills and provide opportunities for them to practice using the law for social change. Nowhere is this more true than in the realm of international human rights, with all its contradictions, and where the line between law and politics is often blurred. The paradox of orthodoxy and innovation that I invoke underscores the value of critical thinking as context, skill, strategy, and goal of international clinical education.
This article explores these themes within the problematics of human rights enforcement, exceptionalism, and the convergence of international and domestic law. It considers measure state accountability and compliance with international law obligations, and the value of a human rights based approach as a conceptual framework and methodology that places individuals and communities as rights-holders at the center. A critical analysis of the relationships of stakeholders to one another and of the power dynamics at play in the pursuit of justice should be at the core of legal education.
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