The Other Side of A Legal Education (Part 2)

A Continuation of Part 1 of “The Other Side of A Legal Education”

A Basic Description

  As an inter-disciplinary approach within legal studies, the Sociology of Law examines the interaction between two important spheres of influence; those significant yet routine set of structures that seek to inform our social lives. 

  These include the legal sphere, with its laws and regulations that we are required to know, understand and obey. And the cultural sphere, with its customs and societal norms we are expected to respect, follow and pass on to the next generation.  

 In this respect, the Sociology of Law is a very particular area of research. Where the study of the law, legal institutions and legal practitioners is considered as going hand in hand with investigating those social rules that dictate what is acceptable behavior and what is not. 

  In other words, this forgotten yet rich academic tradition focuses on the relationship between the law and the society that drafts and implements its provisions. Where cultural and societal norms are not considered to be external to the legal field. But are instead viewed as important and powerful forces that inform those operating within the legal community. As the founding father of this field put it:  

“The statement that legal institutions are based exclusively on legal norms is not true. Morality, ethical custom, decorum, tact, even etiquette and fashion, do not solely order the extra-legal relations; they also affect the legal sphere at every turn.”

Eugen Ehrlich

The Social Link

 Now, I understand that such a perspective is not eagerly accepted by the legal community in Ethiopia. Where viewing the legal system as purely objective, self-contained, and self-referential is considered to be the only correct way to understand the law and its practitioners. 

  Where looking at the influence of societal norms, particularly on those drafting and interpreting the law, is viewed as not only being a wrong approach but also a very misguided one. For it is seen as introducing what Hans Kelsen describes as “alien components” to an otherwise sterile and systematic field of practice. 

  But I fear this view of the law is very indicative of our collective tendency to confuse what ought to be with what actually is. As both the history of our legal system and the contemporary debates surrounding our laws point, without shame or subtlety, to a fundamental truth. Namely, that our legal system and our social norms are not as disconnected from one another as we would like to believe. 

አርአያ፡ “ይህን ያህል አስቸጋሪ አይመስለኝም። ከመሪዎቹ ውስጥ ጥቂቶች ቆራጦችና ፈቃደኞች ካሉ ሌውላው እንዲከተል ማስገደድ ነው። እዚህ ላይ አስፈጻሚዎቹ ባለሥልጣኖች ብርታታቸውን ማሳየት ብቻ ያስፈልጋቸዋል።ያን ጊዜ ሕዝቡ አዲሱን ሕግ ይቀበል የለምን? አዲሱንስ እርምጃችንን ጠቃሚ መሆኑን እያደር ይገነዘበው የለምን?”

የኢትዮጵያ ቆንስል በጅቡቲ፡ “እንግዲያውስ በዚሁ አኳኋን ዛሬ በኢትዮጵያ ምንም ለመሥራት የማይቻል መሆኑን ይወቁት።”

አርአያ (1938) 

   Whether we look at the lively interactions between ብላቴን ጌታ ሎሬንሶ ታእዛዝ and ከንቲባ ገብሩ ደስታ during the parliamentary sessions of the 1940s, the labor put into collecting older court judgments in order to inform the modernization efforts of the 1940s and 50s; the first-hand testimonies of those that actively participated in the preparatory and subsequent codification processes of the 1950s, particularly the likes of በለጠ ገብሬ፣ ሠይፈ ሥላሴ ሊበን and አፈንጉሥ ቅጣው ይታጠቁ; or the writings and speeches of their king and contemporaries, namely ቀዳማዊ ኃይለ ሥላሤ፣ ደጃዝማች ግርማቸው ተክለ ሐዋርያት and ይድነቃቸው ተሰማ; each of these historical realities point to a long tradition. One of viewing the law and any effort to reform it as needing to seriously consider the conventions and beliefs of the people. 

  And whilst there is much that can be criticized about the modernization process, it is also important to properly understand what such critics have called for. As they have never been in favor of a reform effort that is immune to cultural influences. 

  In fact, they would appear to be in favor of such an influence. For their analyses can generally fall into two categories. Where some argue that the modernization effort was too dismissive of the country’s legal tradition (i.e. making the new laws too foreign) whilst others claim that the reform effort was too biased towards one local tradition at the expense of others (i.e. not all cultural influences were accommodated). 

  So, for those of you who still think that the legal system is something that is either devoid of a cultural context or is immune from the influences of social psychology, I have to tell you this because you need to hear it. You are not only wrong. You are also missing out on a very fruitful and important field of research, for: 

“History shows that the state is no match for the uninterrupted sway of elemental forces which have their life and being in society. They operate with less force at the beginning perhaps, but they operate steadily, decisively, and without faltering.”

Eugen Ehrlich

A Final Word

  And this, in my mind, is why The Legal Education Reform Program failed. Not for any serious lack of imagination or implementation. But for its inability to seriously consider the influence of culture on those that were tasked to challenge its more oppressive tendencies. 

  Whilst any effort to create a more just society should be supported, continuing to see the legal community as a group of powerful and objective changemakers that are removed from cultural bias is not only wrong. It can also lead to the type of failure we witnessed with the Reform Program. 

  In this respect, the Sociology of Law gives us an important perspective into the relationship between the legal community and the cultural context in which it finds itself. Presenting a compelling case against the idea that legal professionals can simply rise above and change those societal currents that shape our collective values.

  And seeing as how our own legal history points to the inextricable link between social conventions and the law, we should not be so quick to assume that the legal community is an isolated island that is immune to present-day norms. Instead, we should be asking how our beliefs and traditions are still affecting this field we have devoted our lives to.  

   This, my dear reader, is the main goal of our Living Law pieces. 

 By pinpointing and analyzing the interaction between our legal and cultural spheres, we will try to show the profound influence that society wields over our beliefs, values, and behaviors. And by identifying this overarching power of society, we are calling for a more effective means of achieving social justice—where we do not simply try to legislate the problem away but instead view social justice as a noble yet difficult work. 

 One that should neither be underestimated nor oversimplified. But instead be based on an understanding of the complex relationship between social norms, systemic structures, and those who navigate within them. Be they law school students, lecturers, judges or those working in the halls of government. 

For More on the Resources Used for This Work, Visit Gudu’s Catalogue by Clicking Here.