Fall 2011 Stories

After rectors, presidents, and faculty met in Mexico City in April 2010 for an inspiring conference on Jesuit Higher Education in a Globalizing World, one thing was clear: wherever we are in the world, the context in which we work, live, and teach is changing dramatically. In particular, the context where injustice is happening is changing.

THE NEW CONTEXT OF INJUSTICE(1)

I would like to draw on the Indian Nobel Prize Laureate Amartya Sen, who in his most recent book, The Idea of Justice, undertakes a criticism of the prevailing theories of justice (primarily modern social contract theories) from a non-Christian and non-overtly-religious perspective and highlights their inabilities to perceive the real nature of the many problems of global injustice, and consequently their inability to counter them.(2) Significantly enough, these problems are closely related to what the 34th General Congregation of the Society of Jesus describes as the “new dimensions of the promotion of justice” (Decree 3)—which include the risks and the opportunities involved in globalization (N. 7). This global frame is also highlighted in the 35th General Congregation’s discussion of the new context for the Jesuit mission—the context of the global world, full of tensions and paradoxes (Decree 3, N. 11).

As a law professor at a Jesuit institution, my perception is that the prevailing model of legal education (on a global scale, although with significant geographical and cultural nuances) marginalizes to a great extent the question of justice, separating it from the central core of legal education. This is not a coincidence. In my view, this disjunction stems from the fact that legal education, for the most part, lies on the more general paradigm of the theories of justice that Sen is criticizing. Thus, the inability of the latter to identify and fight against injustice in the global context necessarily pervades the former. In this essay I will describe in more detail how this happens and suggest how Jesuit institutions can (and are designed to) contribute to a positive change.

[T]he Society of Jesus has magnificent potential as a globalized organization itself, whose members and areas of action cover a multicultural reality....This global character was both intellectually and physically obvious at the 2010 Mexico City conference, as it is in the scope and universality of the Ignatian message.

THE EXCLUSIONARY CHARACTER OF DOMINANT THEORIES OF JUSTICE AND LEGAL EDUCATION

Sen criticizes the prevailing theories of justice, and in particular John Rawls’s contemporary version of social contract theory as it is advanced in his seminal book, A Theory of Justice,(3) for being institutionalist (concentrating on fair institutions, rather than real human life and social realizations), transcendental (aiming at the achievement of perfect or ideal justice rather than comparing different situations of relative injustice), and exclusionary (limited to the consideration of justice within one particular political community). Although these three concepts are all significant in relation to the limitations of the prevailing concepts of legal education, I will concentrate on the third concept, of legal education as exclusionary, since this concept is most relevant to the context of a globalizing world.

The contractarian tradition is by definition focused on one particular political community. The social contract, both in the Rawlsian version and in the more classical, is signed by specific individuals (with the exclusion of others) who come to an agreement that links them together (and not to others) in order to establish a fair society. This is coherent in the context of the contractualist tradition, which aims at the legitimization of state political power. However, as Sen rightly points out, evaluating justice in a specific state without taking into account perspectives from outside this state is quite limited in its perspective. First because, in the global world in which we actually live, what occurs in one country usually has a great impact on other countries, and second, because the perspectives that come from beyond one’s own borders are often useful for illuminating the perspectives belonging to a specific community, thus making it possible to fight against parochialism.

Parochialism in the consideration of justice pervades legal education through the principle that identifies law with the local production of written rules by a particular state. This principle functions as dogma in the strict sense of the term. In its most extreme version, law and state are claimed as exactly the same thing from a conceptual point of view (as defended by one of the most influential Western legal thinkers of the 20th century, the Austrian-born Hans Kelsen).(4) And this dogma defines the curricula and methodologies in law schools to such an extent that it can be considered the dominant paradigm in contemporary legal knowledge.(5)

The dominant position of the national/state character of law is an important factor when it comes to explaining the marginalization of justice in law schools (for the same reasons offered by Sen in relation to the exclusionary character of Rawlsian theory of justice). On the one hand, injustices in our world are global in dimension and national law is irremediably narrow, whether it be as a perspective from which to contemplate and analyze them or as an instrument to combat them. On the other hand, the concentration on national law excludes perspectives from beyond the borders of a given state, thereby making law an area condemned to parochialism.

Though the field of international justice seems to be the appropriate way to advance (and this is what Rawls himself explored in his work The Law of Peoples, opening up the social contract to the dealings between representatives of different communities),(6) Sen notes that international justice is not the same as global justice, and often the nature of injustice in our world is global and not (only) international. Besides the structural problems that stem from the absence of a supra-state offering institutional support, both the victims and the agents of injustice can be individuals, groups, and organizations (public and private) that are different from the states. The interactions between all these agents, which are not necessarily dependent on national borders, cannot be rerouted toward a perspective of international relations based on the traditional concept of relations between states, which prevails in current legal theory.

Thus, the dogma of the state character of law, which controls legal education, is not only parochial (because it excludes perspectives from other parts of the world), but it is also reductionist even within national borders because it does not consider the legal relevance of agents other than the state, or does so only indirectly. In this respect, it is significant that the study of legal pluralism, which attacks the dogma of the state character of law (for being parochial and state reductionist) is still not very present in law schools, though it is acknowledged in other fields, such as sociology and anthropology.

HOW JESUIT INSTITUTIONS CAN HELP

The 32nd General Congregation formulated the Society of Jesus’ mission as “the service of faith, of which the promotion of justice is an absolute requirement,” and the 34th General Congregation stated that the “integrating principle” of its mission is “the inseparable link between faith and the promotion of the justice of the Kingdom” (Decree 2, N. 14). More specifically, the Society of Jesus carries out its mission to serve faith aimed at the promotion of justice via two dimensions: “the inculturated proclamation of the Gospel and dialogue with other religious traditions” (GC 34, Decree 2, NN. 14–21). Both dimensions are, in my view, crucial for the purposes of reshaping legal education along the lines suggested in this short essay. If inculturation provides for a powerful correction against the institutionalist vision of justice, dialogue and pluralism are central to the fight against parochialism. This dialogue is of course inspired by the life of Jesus himself, who “crossed over physical and socio-religious frontiers” (GC 35, Decree 3, N. 14). In this area, the Society of Jesus has magnificent potential as a globalized organization itself, whose members and areas of action cover a multicultural reality (GC 35, Decree 3, N. 43). This global character was both intellectually and physically obvious at the 2010 Mexico City conference, as it is in the scope and universality of the Ignatian message.

We must build bridges between institutions and real life, between books and action, between laws and the consequences of their application, between the law school and other areas of knowledge, between different legal systems, traditions, and social–legal cultures.

We are witnessing a paradigm shift in legal education as the principle of the state or national character of law (that has been predominantly assumed as the starting point since the 19th century) is increasingly critiqued. Imagination and creativity are called for to suggest alternative paradigms, and as Fr. Nicolás highlighted in his keynote speech in Mexico City, Ignatian dispositions and attitudes can be significant resources in this endeavor.(7)

Far from being an oxymoron, legal education requires imagination, both at the curricular and at the methodological level. A focus on nonlegal and nondogmatic subjects is essential to understand the social context in which law exists and the consequences of its application on a global level. In this respect, legal pluralism should be an important object of study. Furthermore, there should be more international and comparative subjects and approaches than there are today, not mainly for the utilitarian acquisition of norms of other state systems, but rather to open up perspectives that will allow us to understand and assess our own system in a better light. And, of course, at an anthropological level, it is part of our tradition to work on the comprehensive training of the individual both as a professional and as a person. As was highlighted in Mexico City, perhaps the most important question to ponder is what sort of anthropology are we transmitting to our students. If our students are entering the legal profession, this anthropology must be centered around concepts of justice and the realities of injustice.

The “tradition of Jesuits building bridges across barriers” (GC 35, Decree 3, N. 17) is precisely what we need today in legal education. We must build bridges between institutions and real life, between books and action, between laws and the consequences of their application, between the law school and other areas of knowledge, between different legal systems, traditions, and social–legal cultures. By fulfilling our own mission, and being faithful to our very identity, Jesuit institutions can make a significant contribution to legal education and culture. If we add our immense power as a global network, I suggest that we are in a privileged position to advance global legal change that must come.