The Necessity of Democratizing Law

The main principle of democracy is grounded in the idea that people should take part in political decision-making. Although there are a host of factors in “democratic” nations that fly in the face of this and like principles, an especially conspicuous one is the inaccessibility of law. And while there are many ways to democratize the law, an initial step would be to incorporate it into mandatory education.

The law is the means through which power is exercised in a society that has renounced crude violence. It legitimizes other forms of violence by giving them a veneer of rationality, specifying who can be violent and under what circumstances. As far as individuals are concerned, the law prescribes obligations and rights; it allows them to vindicate claims against each other or the state by creating forums for adjudicating disputes. The law provides remedies and enforces compliance.

The law also serves as an expression of the power of the state. It enables and sets limits to state action. All legitimate modern governmental actions find their legitimacy in the law. And even where the government breaks the law, its indiscretions are enabled by the greater legal framework. To illustrate, when the police act illegally, their ability to do so arises from taking advantage of their legal empowerments. The law gives police officers the power to arrest people, and a police officer’s ability to conduct an illegal arrest is made possible by this entitlement.

Apart from defining individual rights and the power of government, communities use the law to alter the economic and social reality. Today, all political and economic conditions have a legal component (contracts, property, treaties, etc.), and a proper understanding of the legal dimension is crucial to conceptualizing manifold contentious political issues (including the issue of “free trade”).

The state actualizes its economic and social policies through legislation and government agencies. Legislation is the creation of new law, while an agency’s power is embedded within a pre-existing legal framework established by the legislature. Indeed, the broadest and most significant social decisions are couched in the language of the law.

However, having the ability to appreciate in general strokes the significance of a controversial bill is a far cry from being aware of a law’s actual and potential ramifications. More importantly, the significance of such a bill can only be fully apprehended in the context of a network of complementary and antagonistic laws. No law operates in isolation, and its effect upon the social order depends on its relation to other laws. Such knowledge can help one participate more robustly in our democracy, not merely as a befuddled voter, but as an active and critical petitioner.

If we have faith in democracy, surely it would behoove us to democratize the law. This in turn can be accomplished only by incorporating it into our compulsory education. Everyone should know the law and know it well.

Knowledge of the law would greatly contribute to its demystification, but society can additionally insist that children learn the history of law. Not only would this lead to an increased awareness of current affairs, but it will demonstrate that law is historical rather than natural. This will serve as a gateway to greater participation and empowerment by broadening the political imaginary.

The histories of law are a treasure trove of hidden stories, ones of struggle and oppression, of progress and defeat. A critical knowledge of the history of the law can only heighten one’s sensitivity to both the structural distribution of power and the means to surmount its supposed inevitability.

The average person experiences the law as an imposition by an external power. The precise behavior demanded is often only vaguely understood, and even this limited understanding tends to be colored with myth.

It is therefore unsurprising that when one confronts law, one rushes towards a practitioner (if one has the money of course) regardless of the simplicity or complexity of the question involved — one lacks the deliberative tools, after all. The practitioner solves the client’s problems in a non-transparent manner and often without much of the client’s input. Ironically, while the client is the one who stakes everything in this scenario, she is also the one with the least control over her situation.

The layperson’s helplessness is exacerbated by the principle that ignorance of the law is not a defense. Therefore, one is potentially liable for transgressing prohibitions one did not even fathom existed. The traditional rationale for this principle is that, in its absence, a defendant could easily abuse the justice system by claiming ignorance, while discrediting such a plea is notoriously difficult.

This type of argument seems shaky in light of the various standards of proof one can find in the legal system. For example, tort law is based on a preponderance of the evidence standard. Adjudicators can use a lower standard for prosecutors to disprove ignorance defenses than other types of defenses – ignorance that is often quite reasonable. Such an alternative is an improvement over the law’s absurd indifference toward the reasonableness of the accused’s belief about the law.

While this injustice is tempered by the notice requirement – the requirement that knowledge of the law must have been accessible in some way – this requirement sets so laughably low a standard that it does little to protect people from unexpected legal dangers. One might suspect that the true motivation behind the legal principle against pleading ignorance lies in the prevalence of ignorance. Too many people can plausibly argue that they reasonably did not know the law, and this would undermine the law’s current operations. That social order requires the deployment of legalized violence (at least in our current stage of development) is not an argument for the law’s blindness with respect to fairness, but an argument for familiarizing everyone with the law.

The democratization of law should also involve the democratization of access to legal information. The law is supposed to be a public resource, yet the main online databases in America (Lexis and Westlaw) are not only private, but also exceptionally expensive. One would think that open access to the laws would be a no-brainer in a country with strong democratic aspirations. This omission is especially appalling in light of the American worship of the rule of law.

The rents of the legal industry are based on monopolizing a public resource — it profiteers from the disenfranchisement of the people’s birthright. It is time to dismantle the legal cartel. “But don’t we need regulation and standardization to protect the clients?” Quite to the contrary, the lawyer has so much responsibility precisely because people are helpless – a helplessness that is a function of the lawyer’s monopoly of knowledge. As a result of this helplessness, clients also lack the tools to evaluate their lawyers’ dedication or competence. Clients must put their fate in the hands of strangers, trusting blindly in their good faith.

The lawyer herself often has a poor understanding of the extra-legal components of the case. While she might try to advocate on behalf of a community, its lived realities are often foreign to her. She sees herself as an engineer working towards a solution to a technical problem without considering how her advocacy fits within a broader struggle.

On the other hand, the community’s lack of legal knowledge prevents it from fully taking advantage of the legal possibilities when fighting for justice. Professional elitism further exacerbates the wide gulf between advocate and client. Empowering people to become advocates for themselves and their own community is thus the logical means through which to bridge the gap.

Considering that few lawyers can perform their duties in a manner that is commensurate with the needed degree of responsibility, advocacy should be vested in the communities where it rightfully belongs. The structure of legal education only heightens the tension between lawyer and community.

As a general rule, those who attend law school are relatively well-to-do. And even there, those who are public-minded have rarely encountered the sort of hardships their clients struggle with daily. Furthermore, legal education is geared toward training professionals — the kind of people with limited imaginations who refuse to entertain social alternatives. Meanwhile, in the background hovers the specter of crushing debt. It is therefore unsurprising that law schools rarely teach a holistic understanding of the law that helps situate the law as formative of the social reality or that law students rarely seem troubled by such an omission. If law school becomes obsolete because law has been popularized, then this would only be a net benefit for society.

It thus follows that law must be taught early, extensively, and critically. At this point, one might wish to raise the argument that the complexity and dryness of law precludes its incorporation into the basic curriculum. This position underestimates children’s learning potential. Moreover, it is based on the assumption that law is difficult to understand.

As a current law student, I can vouch that learning law is surprisingly simple once one masters the pretentious lingo – at least at the standard set by law schools today. As for the counterargument that law is too dull for basic education, my only response is that discovering how to motivate students is the job of educators and curriculum designers.

It is true that although learning the basics of law is straightforward, mastering the law is a major challenge. This is no argument for preserving the privileges of the legal industry and the law schools. It is common knowledge within the legal profession that there is little relationship between current legal education and practice. There is absolutely no good justification for protecting the established system of legal education. I will also remind the reader that there is more to being a good advocate than being a technician.

Law school is dismal at preparing advocates in this broader sense. The law should be returned to the people, who are its rightful owners. The people are the ones best situated to know the current social needs in order to best direct the practice in a socially conscientious manner – but only if they are given the proper education.

Josh Komarovsky is a 3L.