On the question of how to bring law schools and lawyers together in the work of educating law students for the practice of law, I've recently posted online a short article I published in spring 2009 in my school's law review, the New York Law School Law Review. The piece is called "The Clinical Year." Here's the abstract:
"This article makes the case for the value -- and the feasibility, under current accreditation and related rules governing law schools -- of a clinical rotation for law students, modeled on the rotations that are a key part of medical school education. The 'clinical year,' which would engage students in almost full-time practice/study for their third year of law school, could be a significant step in building the complete apprenticeship that the Carnegie Foundation for the Advancement of Teaching has urged. It would also rely to a large extent on the supervision, and teaching, that adjunct law school faculty -- supervisors at the rotation settings -- would provide. In that respect, the 'clinical year' differs from in-house clinical education. The article addresses the differences in students' experience that this approach to bridging the gap between theory and practice would generate, and argues that this model is worth exploring, despite -- and in some respects because of -- these features."
You can download the full text from my Social Science Research Network page.
Saturday, August 22, 2009
Friday, August 14, 2009
Legal education and the limits of resources
If we start from the premise that students learn better if they have the opportunity to work closely with a faculty member than if they do not, we immediately face the problem of scarcity: how can a relatively limited number of faculty members engage on an individualized or small-group basis with a large number of students? There are many possible answers, but no simple ones.
We could, for example, double the number of faculty, but only by either doubling the cost of law school or halving aggregate faculty salaries. If we chose to double the cost of law school, in turn, we could either double tuition or find other revenue sources -- but it is hard to believe that our society wishes to double its investment in legal education, by whatever mechanism.
We could keep the number of faculty constant, but double the amount of teaching that we do, but only by reducing something else that we do by the same amount; unless that "something else" is of no value (and just to avoid being misread, I do think that scholarship has value!), reducing it will be a cost.
We could find ways to impart the knowledge and understanding currently conveyed in classes by some more efficient means that required less of faculty members' time, thereby freeing up faculty time for more individualized teaching; but it's not clear to me that there are more efficient means for helping large numbers of people to learn and work with law than our current Socratic classes. This doesn't abandon the original premise that students learn better from working closely with a faculty member; our large classes may be ideal for teaching up to a certain point, but at that point another, more individualized approach may be needed to help the students go further.
I've put all these in extreme ways, to be sure. There may be ways to make some valuable changes in each of these three respects (perhaps a subject for future posts). While legal education is often said to be a conservative institution, law schools have in fact developed more small-group, practice-related education over the past 30 years -- this is what the clinical legal education movement has been about -- and it's turned out to be quite possible to move in this direction without up-ending our institutions. Though we have not gone as far as many (myself included) would like, we may well be able to go further, and to do so by a relatively organic process in which this form of education gradually spreads as both existing and new faculty find it meaningful and worth carrying out.
But I wonder if we also need to "broaden the frame." Law school lasts only three years for full-time students. Put differently, full-time students normally go to school for 6 semesters, each with 14 weeks of classes, or 82 weeks of classes in all -- just over a year and a half of in-class instruction. That really isn't a great deal of time. It seems very likely (and there's some survey evidence to confirm) that much of what students learn in their law school years that prepares them for practice they are learning from their part-time or summer jobs, and that much of what newly admitted lawyers are actually doing is learning on the job. These observations suggest that we should try to understand our students' education as a process that continues in between classes and after graduation. If law schools can contribute to their students' out-of-class education as well as their in-class learning, they may be on the path to broaden the frame and the effectiveness of their students' preparation for practice.
We could, for example, double the number of faculty, but only by either doubling the cost of law school or halving aggregate faculty salaries. If we chose to double the cost of law school, in turn, we could either double tuition or find other revenue sources -- but it is hard to believe that our society wishes to double its investment in legal education, by whatever mechanism.
We could keep the number of faculty constant, but double the amount of teaching that we do, but only by reducing something else that we do by the same amount; unless that "something else" is of no value (and just to avoid being misread, I do think that scholarship has value!), reducing it will be a cost.
We could find ways to impart the knowledge and understanding currently conveyed in classes by some more efficient means that required less of faculty members' time, thereby freeing up faculty time for more individualized teaching; but it's not clear to me that there are more efficient means for helping large numbers of people to learn and work with law than our current Socratic classes. This doesn't abandon the original premise that students learn better from working closely with a faculty member; our large classes may be ideal for teaching up to a certain point, but at that point another, more individualized approach may be needed to help the students go further.
I've put all these in extreme ways, to be sure. There may be ways to make some valuable changes in each of these three respects (perhaps a subject for future posts). While legal education is often said to be a conservative institution, law schools have in fact developed more small-group, practice-related education over the past 30 years -- this is what the clinical legal education movement has been about -- and it's turned out to be quite possible to move in this direction without up-ending our institutions. Though we have not gone as far as many (myself included) would like, we may well be able to go further, and to do so by a relatively organic process in which this form of education gradually spreads as both existing and new faculty find it meaningful and worth carrying out.
But I wonder if we also need to "broaden the frame." Law school lasts only three years for full-time students. Put differently, full-time students normally go to school for 6 semesters, each with 14 weeks of classes, or 82 weeks of classes in all -- just over a year and a half of in-class instruction. That really isn't a great deal of time. It seems very likely (and there's some survey evidence to confirm) that much of what students learn in their law school years that prepares them for practice they are learning from their part-time or summer jobs, and that much of what newly admitted lawyers are actually doing is learning on the job. These observations suggest that we should try to understand our students' education as a process that continues in between classes and after graduation. If law schools can contribute to their students' out-of-class education as well as their in-class learning, they may be on the path to broaden the frame and the effectiveness of their students' preparation for practice.
Sunday, August 9, 2009
Apprenticeship and accreditation
This post, as you'll see, is not about South African law specifically but about legal education (another of my main professional interests, which I hope to discuss more in the future). I'll start with a reasonably modest proposition: if legal education should be a more complete apprenticeship for practice than it now is (the central argument of the Carnegie Foundation for the Advancement of Teaching's recent study of law schools), then it might be a good idea to eliminate those accreditation rules that block students from engaging more directly in apprenticeship while in law school. There are a number of these rules, and there may be good reasons to retain some or even all of them. Moreover, they are by no means absolute bars to apprenticeship experiences. But they share the characteristic that they divide legal education away from the legal profession itself, and so the logic of apprenticeship suggests they should be reexamined. For example:
Standard 304(c) requires 45,000 minutes of attendance in regularly scheduled class sessions at the law school, out of a total of 58,000 minutes of all sorts, for graduation. Using a 50-minute hour, this requirement calls for 900 hours of classroom study; assuming 14 hours per credit, the result is 64 credits of classroom study out of the 83 credits required for graduation. Obviously this simply doesn't leave very much room for nonclassroom study -- especially since a variety of activities, including moot court and law review, typically claim some of the nonclassroom credits. (In-house clinic work, however, can be counted towards the 45,000 minutes of classroom attendance.)
Standard 304(f) bars students from being "employed" for more than 20 hours per week in any semester in which they are taking courses totaling more than 12 class hours. It is striking that there is no such limit on, for example, students' work on a law review. This rule is especially troubling because it is so significantly paternalistic; while restricting students' work hours may encourage students to actually engage in their classes, to the benefit of others, the principal impact seems to be to tell each student what is good for him or her. Paternalism in education is not necessarily out of place, but this particular rule -- which bars students from too much of an experience that may actually be educational (as an apprenticeship), and that certainly defrays the cost of law school -- not only constrains students based on what it claims is good for them but may not be right in its claims. If students disregard it, its main effect may be to teach them to dissemble. Its exact impact, moreover, is unclear and could be quite startling. The term "employed" is not defined; if it includes work in an externship placement, or in a mandatory pro bono activity, or in a volunteer position, then the impact on student choice and experience would be even greater than if the provision applies only to paid work.
Standard 305 permits credit for nonclassroom study, for example in externships. The number of credits is limited by Standard 304, since these credits don't fall within the 45,000 required classroom minutes. In addition, Interpretation 305-3 bars granting credit to students for work for which they are paid. Clearly this Interpretation presses students to choose between earning income and participating in externship programs designed by law schools to have educational value (more educational value, by assumption, than simple employment would have -- though Northeastern's co-op program, and the theory of "ecological learning" that supports it, raise some questions about this assumption). The Interpretation also implicitly suggests that where students earn income for their work they are not being educated. Nothing could be more contrary to the ideal of lifelong learning that law schools aspire to impart to their students.
This Interpretation also makes it harder for students to earn the money to cover part of the cost of their education, and it likely makes it harder for students to invest in their placements the numbers of hours that would enable them to become more valuable members of those legal staffs. It's also possible that potential employers, though they undoubtedly get a benefit from having free externs under the current system, would be more willing to invest resources in educating students on the job if the students, by virtue of being paid, were encouraged to work enough hours to make that investment more likely to pay off.
Standard 306 permits distance education, but not for more than 4 classroom credits for a student in a term or more than 12 overall. Those limits mean, it would seem, that distance learning can be an adjunct to classroom learning, but not a substitute. Whatever the merits of that choice in terms of comparing the pedagogical value of a distance learning hour to a classroom hour -- a question now being examined by various innovators, including my New York Law School colleague Michael Perlin -- the impact of restricting the role of distance learning is to limit the degree to which students can make law school classroom study an adjunct to intensive out-of-class learning through apprenticeship experiences (at least for students who are not enrolled in a part-time program).
There are larger issues, to be sure. For instance, it might be argued that the provisions I've cited do not undercut educational apprenticeship, because that apprenticeship should be provided primarily within the law school itself, rather than in large or predominant part through work/learning experiences elsewhere. In that case, the rules to focus on would be those that constrain, or do not sufficiently support, the offering of clinical experiences to students. Those rules do deserve attention, but I think the rules I've mentioned here also need reconsideration, because in the long run it seems to me that an effort to provide apprenticeship education that relies solely on law schools' internal resources is unlikely to be successful. I hope to say more about that, and other related questions, in future posts.
Standard 304(c) requires 45,000 minutes of attendance in regularly scheduled class sessions at the law school, out of a total of 58,000 minutes of all sorts, for graduation. Using a 50-minute hour, this requirement calls for 900 hours of classroom study; assuming 14 hours per credit, the result is 64 credits of classroom study out of the 83 credits required for graduation. Obviously this simply doesn't leave very much room for nonclassroom study -- especially since a variety of activities, including moot court and law review, typically claim some of the nonclassroom credits. (In-house clinic work, however, can be counted towards the 45,000 minutes of classroom attendance.)
Standard 304(f) bars students from being "employed" for more than 20 hours per week in any semester in which they are taking courses totaling more than 12 class hours. It is striking that there is no such limit on, for example, students' work on a law review. This rule is especially troubling because it is so significantly paternalistic; while restricting students' work hours may encourage students to actually engage in their classes, to the benefit of others, the principal impact seems to be to tell each student what is good for him or her. Paternalism in education is not necessarily out of place, but this particular rule -- which bars students from too much of an experience that may actually be educational (as an apprenticeship), and that certainly defrays the cost of law school -- not only constrains students based on what it claims is good for them but may not be right in its claims. If students disregard it, its main effect may be to teach them to dissemble. Its exact impact, moreover, is unclear and could be quite startling. The term "employed" is not defined; if it includes work in an externship placement, or in a mandatory pro bono activity, or in a volunteer position, then the impact on student choice and experience would be even greater than if the provision applies only to paid work.
Standard 305 permits credit for nonclassroom study, for example in externships. The number of credits is limited by Standard 304, since these credits don't fall within the 45,000 required classroom minutes. In addition, Interpretation 305-3 bars granting credit to students for work for which they are paid. Clearly this Interpretation presses students to choose between earning income and participating in externship programs designed by law schools to have educational value (more educational value, by assumption, than simple employment would have -- though Northeastern's co-op program, and the theory of "ecological learning" that supports it, raise some questions about this assumption). The Interpretation also implicitly suggests that where students earn income for their work they are not being educated. Nothing could be more contrary to the ideal of lifelong learning that law schools aspire to impart to their students.
This Interpretation also makes it harder for students to earn the money to cover part of the cost of their education, and it likely makes it harder for students to invest in their placements the numbers of hours that would enable them to become more valuable members of those legal staffs. It's also possible that potential employers, though they undoubtedly get a benefit from having free externs under the current system, would be more willing to invest resources in educating students on the job if the students, by virtue of being paid, were encouraged to work enough hours to make that investment more likely to pay off.
Standard 306 permits distance education, but not for more than 4 classroom credits for a student in a term or more than 12 overall. Those limits mean, it would seem, that distance learning can be an adjunct to classroom learning, but not a substitute. Whatever the merits of that choice in terms of comparing the pedagogical value of a distance learning hour to a classroom hour -- a question now being examined by various innovators, including my New York Law School colleague Michael Perlin -- the impact of restricting the role of distance learning is to limit the degree to which students can make law school classroom study an adjunct to intensive out-of-class learning through apprenticeship experiences (at least for students who are not enrolled in a part-time program).
There are larger issues, to be sure. For instance, it might be argued that the provisions I've cited do not undercut educational apprenticeship, because that apprenticeship should be provided primarily within the law school itself, rather than in large or predominant part through work/learning experiences elsewhere. In that case, the rules to focus on would be those that constrain, or do not sufficiently support, the offering of clinical experiences to students. Those rules do deserve attention, but I think the rules I've mentioned here also need reconsideration, because in the long run it seems to me that an effort to provide apprenticeship education that relies solely on law schools' internal resources is unlikely to be successful. I hope to say more about that, and other related questions, in future posts.
Friday, August 7, 2009
Some thoughts about "engagement"
Still thinking about the remarkable Residents of Joe Slovo case:
In mandating engagement between the authorities (two responsible government officials and a government-created company) and the residents, the Court must walk a fine line. What exactly must each side do?
First, they must act "reasonably and in good faith," as Justice Sachs puts it (par 407). Justice Sachs in the same paragraph quotes this injunction from Olivia Road: those facing eviction must "not content themselves with an intransigent attitude or nullify the engagement process by making non-negotiable, unreasonable demands. People in need of housing are not, and must not be regarded as a disempowered mass. They must be encouraged to be pro-active and not purely defensive. Civil society organisations that support the people's claims should preferably facilitate th engagement process in every possible way." As a matter of law, one can imagine the elaboration of a body of principles and rules that explain what conduct is reasonable and in good faith, and what is, instead, intransigent or otherwise unreasonable. As a matter of practice, it seems the Court hopes that people "on the ground," such as "civil society organisations," will help to guide the process and to bring all sides to the table and to agreement or at least mutual respect. No doubt the Court would much prefer this practical accommodation to a fresh series of legal disputes, now focused on the elements of proper engagement.
Second, what if -- despite reasonable efforts on all sides -- the parties still disagree? The Joe Slovo decision makes clear that if agreement cannot be reached, the evictions that the authorities sought (and that the Court approves, after imposing a set of conditions meant to make the evictions comply with both the PIE statute and the constitution) will go forward. The residents, Justice Sachs notes, "state that engagement can only be meaniangful if the parties meet as equals without the eviction order hanging over them." (Par 402). This, however, the Court rejects. Justice Sachs writes, "It is important to note that the order of this Court requires meaningful engagement in relation to the stage the process has now reached. This does not envisage re-opening the basic modalities of the upgrading and relocation scheme." (Par 405).
Justice Ngcobo reasons similarly, saying: "What must be stressed ... is that the process of engagement does not require the parties to agree on every issue. What is required is good faith and reasonableness on both sides and the willingness to listen and understand the concerns of the others side.... Mutual understanding and accommodation of each others' concerns, as opposed to reaching agreement, should be the primary focus of meaningful engagement. Ultimately, the decision lies with the government. The decision must, however, be informed by the concerns raised by the residents during the process of engagement." (Par 244; emphasis added.)
Consistently with these views, the actual order shaped by the Constitutional Court -- an order whose detailed specification of the elements of protecting the residents in the process of eviction in itself attests to the justices' full "engagement" with the residents' plight -- requires the residents to leave the Joe Slovo Informal Settlement according to a 45-week schedule annexed to the order, unless the parties through engagement agree on different dates within 20 days from the date of the Court's decision. (Paragraph 7, sections 4-7). After that, the order directs the authorities "to engage with the affected residents in respect of each relocation that is to take place," at least one week prior to the scheduled date for the relocation; this engagement's focus is on how, rather than whether, to carry out the relocation, though no topic is ruled off limits. (Paragraph 10, section 11.)
Though the justices' attitudes to the residents' claims of lawful status varied dramatically, reflecting very different views of the relative weight of traditional legal interpretation and constitutional reconstruction, all were united in their concern for the residents. The order ultimately approved by the Constitutional Court provided the residents with many protections that they had not been able to secure from the authorities or from the lower court. Nevertheless, the Constitutional Court unanimously approved an eviction order -- in itself a painful and even ironic step in a South Africa trying to overcome the heritage of apartheid, in which "forced removals" were a notorious feature. In doing so, the Court deferred to the government's view that the Joe Slovo area could not be upgraded while the residents remained on the land, though the government's own housing policy had endorsed "a phased in situ upgrading approach [i.e., without relocations] to informal settlements, in line with international best practice" (par 364). Moreover, the Court made clear that engagement, important as it is, is circumscribed; a failure to agree would not block the evictions but instead would mean they went forward.
The Court's decision reflects the hope that engagement will still be meaningful to those facing eviction even though they do not have the power to block the evictions themselves. Whether such engagement will be viable seems uncertain; it may be that when disagreement has become as sharp as it was in this case (where residents at one point had burned tires to block a major highway running by their homes), it is too late for engagement to bring people back together. But perhaps it is not too late -- and it surely is worth the effort to try.
The Court, in any event, had no real alternative, if it believed, as it did, that the government's basic program was a reasonable exercise of its discretion in meeting its constitutional duty to provide housing. One could quarrel with this assessment, but the unanimity of the justices' decision on this score suggests that the Court felt -- reasonably, it seems to me -- that a contrary decision would have invaded the core policymaking discretion of a democratically-elected government.
The relocations had to be upheld, or the residents (and other residents in the future) would have a veto that might benefit neither themselves nor others waiting for housing. Thus Justice O'Regan writes that "a consideration that to my mind weighs heavily in the balance is that is not only the occupiers who are affected by the plan. Thousands of other households have already co-operated with the respondents [the government authorities] in the hope that their co-operation will hasten the building of the housing project and result in their receiving permanent housing." (Par 303). Justice Sachs makes a similar point, saying that the plight of these other households is "highly relevant ... to the justness and equity of requiring residents who are stalling development to accept temporary relocation." (par 398) It seems fair to read in these comments some measure of judicial impatience with the remaining residents.
The Court's response was not, however, to disregard the residents' concerns. Instead, it sought to uphold the program while restoring the link between those carrying out the program and those who were the program's subjects. The goal is to recognize the residents as people while also recognizing the rights of the whole of South Africa's people to make binding decisions. This is not an easy matter, but it is the right way to go.
In mandating engagement between the authorities (two responsible government officials and a government-created company) and the residents, the Court must walk a fine line. What exactly must each side do?
First, they must act "reasonably and in good faith," as Justice Sachs puts it (par 407). Justice Sachs in the same paragraph quotes this injunction from Olivia Road: those facing eviction must "not content themselves with an intransigent attitude or nullify the engagement process by making non-negotiable, unreasonable demands. People in need of housing are not, and must not be regarded as a disempowered mass. They must be encouraged to be pro-active and not purely defensive. Civil society organisations that support the people's claims should preferably facilitate th engagement process in every possible way." As a matter of law, one can imagine the elaboration of a body of principles and rules that explain what conduct is reasonable and in good faith, and what is, instead, intransigent or otherwise unreasonable. As a matter of practice, it seems the Court hopes that people "on the ground," such as "civil society organisations," will help to guide the process and to bring all sides to the table and to agreement or at least mutual respect. No doubt the Court would much prefer this practical accommodation to a fresh series of legal disputes, now focused on the elements of proper engagement.
Second, what if -- despite reasonable efforts on all sides -- the parties still disagree? The Joe Slovo decision makes clear that if agreement cannot be reached, the evictions that the authorities sought (and that the Court approves, after imposing a set of conditions meant to make the evictions comply with both the PIE statute and the constitution) will go forward. The residents, Justice Sachs notes, "state that engagement can only be meaniangful if the parties meet as equals without the eviction order hanging over them." (Par 402). This, however, the Court rejects. Justice Sachs writes, "It is important to note that the order of this Court requires meaningful engagement in relation to the stage the process has now reached. This does not envisage re-opening the basic modalities of the upgrading and relocation scheme." (Par 405).
Justice Ngcobo reasons similarly, saying: "What must be stressed ... is that the process of engagement does not require the parties to agree on every issue. What is required is good faith and reasonableness on both sides and the willingness to listen and understand the concerns of the others side.... Mutual understanding and accommodation of each others' concerns, as opposed to reaching agreement, should be the primary focus of meaningful engagement. Ultimately, the decision lies with the government. The decision must, however, be informed by the concerns raised by the residents during the process of engagement." (Par 244; emphasis added.)
Consistently with these views, the actual order shaped by the Constitutional Court -- an order whose detailed specification of the elements of protecting the residents in the process of eviction in itself attests to the justices' full "engagement" with the residents' plight -- requires the residents to leave the Joe Slovo Informal Settlement according to a 45-week schedule annexed to the order, unless the parties through engagement agree on different dates within 20 days from the date of the Court's decision. (Paragraph 7, sections 4-7). After that, the order directs the authorities "to engage with the affected residents in respect of each relocation that is to take place," at least one week prior to the scheduled date for the relocation; this engagement's focus is on how, rather than whether, to carry out the relocation, though no topic is ruled off limits. (Paragraph 10, section 11.)
Though the justices' attitudes to the residents' claims of lawful status varied dramatically, reflecting very different views of the relative weight of traditional legal interpretation and constitutional reconstruction, all were united in their concern for the residents. The order ultimately approved by the Constitutional Court provided the residents with many protections that they had not been able to secure from the authorities or from the lower court. Nevertheless, the Constitutional Court unanimously approved an eviction order -- in itself a painful and even ironic step in a South Africa trying to overcome the heritage of apartheid, in which "forced removals" were a notorious feature. In doing so, the Court deferred to the government's view that the Joe Slovo area could not be upgraded while the residents remained on the land, though the government's own housing policy had endorsed "a phased in situ upgrading approach [i.e., without relocations] to informal settlements, in line with international best practice" (par 364). Moreover, the Court made clear that engagement, important as it is, is circumscribed; a failure to agree would not block the evictions but instead would mean they went forward.
The Court's decision reflects the hope that engagement will still be meaningful to those facing eviction even though they do not have the power to block the evictions themselves. Whether such engagement will be viable seems uncertain; it may be that when disagreement has become as sharp as it was in this case (where residents at one point had burned tires to block a major highway running by their homes), it is too late for engagement to bring people back together. But perhaps it is not too late -- and it surely is worth the effort to try.
The Court, in any event, had no real alternative, if it believed, as it did, that the government's basic program was a reasonable exercise of its discretion in meeting its constitutional duty to provide housing. One could quarrel with this assessment, but the unanimity of the justices' decision on this score suggests that the Court felt -- reasonably, it seems to me -- that a contrary decision would have invaded the core policymaking discretion of a democratically-elected government.
The relocations had to be upheld, or the residents (and other residents in the future) would have a veto that might benefit neither themselves nor others waiting for housing. Thus Justice O'Regan writes that "a consideration that to my mind weighs heavily in the balance is that is not only the occupiers who are affected by the plan. Thousands of other households have already co-operated with the respondents [the government authorities] in the hope that their co-operation will hasten the building of the housing project and result in their receiving permanent housing." (Par 303). Justice Sachs makes a similar point, saying that the plight of these other households is "highly relevant ... to the justness and equity of requiring residents who are stalling development to accept temporary relocation." (par 398) It seems fair to read in these comments some measure of judicial impatience with the remaining residents.
The Court's response was not, however, to disregard the residents' concerns. Instead, it sought to uphold the program while restoring the link between those carrying out the program and those who were the program's subjects. The goal is to recognize the residents as people while also recognizing the rights of the whole of South Africa's people to make binding decisions. This is not an easy matter, but it is the right way to go.
Wednesday, August 5, 2009
The constitutional duties of the people
In the United States we rarely speak of citizens or residents of the country as having enforceable constitutional duties, either towards each other or towards the government. South Africa's constitution, by contrast, explicitly declares that "[a] provision of the Bill of Rights binds a natural ... person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right." (Section 8(2).) While this is obviously vague, it's clear enough on the basic point -- that individual people with no connection to the government ("natural persons") may be constitutionally obliged to respect each other's constitutional rights.
In Residents of Joe Slovo, Justice Sachs develops the idea that individual people may also have duties to the government. The proposition that evictions needed to be preceded by "engagement" between the government and those it wanted to evict had been advanced in an earlier case, Occupiers of 51 Olivia Road and Others v. City of Johannesburg and Others, decided by the Constitutional Court in 2008. There the Court focused on, to use Justice Sachs' phrase, "the interconnectedness of procedure and substance" and reasoned that "'meaningful engagement' between the occupiers and the City" was "a major pre-condition for determining whether an eviction order would be just and equitable" under the applicable statute, the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, often referred to as "PIE" and enacted as Act 19 of 1998. (Residents of Joe Slovo, par 338). Justice Sachs goes on (at par 407) to recall that the 51 Olivia Road Court also emphasized "that the process of engagement would work only if both sides acted reasonably and in good faith."
Here, Justice Sachs places these ideas in the framework of a broad conception of the concept of citizenship. He writes that the Residents of Joe Slovo case "expands the concept of citizenship beyond traditional notions of electoral rights and claims for diplomatic protection, to include the full substantive benefits and entitlements envisaged by the Constitution for all the people who live in the country and to whom it belongs. At the same time it focuses on the reciprocal duty of citizens to be active, participatory and responsible and to make their own individual and collective contributions towards the realisation of the benefits and entitlements they claim for themselves, not to speak of the well-being of the community as a whole." (Par 408).
What is the constitutional source for this reciprocal duty of citizens? Justice Sachs' judgment offers support for three possible answers to this question.
The third possibility is that the duty comes from the nature of human dignity. Section 10 of the Constitution declares that "[e]veryone has inherent dignity and the right to have their dignity respected and protected." Justice Sachs writes that the Court has recognized that governments' "duties extended beyond the development of housing schemes to treating those within their jurisdiction with respect .... Justice and equity require that everyone be treated as an individual bearer of rights entitled to respect for his or her dignity." (Par 406). But the residents themselves "should be discouraged from regarding themselves as helpless victims, lacking the possibilities of personal moral agency. The tenacity and ingenuity they have shown in making homes out of discarded material, in finding work and sending their children to school, serves as a tribute to their capacity for survival and adaptation.... They had a duty to show the same resourcefulness in seeking a solution as they did in managing to survive in the most challenging circumstances." (Par 407; I've omitted from this passage the sentence from the same paragraph that I quoted in discussing the second possibility, the section 26 roots of this duty, above.) Here it might be said that each resident has a constitutional duty to act with the dignity that section 10 secures. Perhaps section 7(2), which requires that "[t]he state must respect, protect, promote and fulfil the rights in the Bill of Rights," applies to this extent to each citizen as well, again by virtue of section 8(2)).
Does this last argument mean that the constitution imposes on each citizen a duty to protect his or her own dignity (and, perhaps, other qualities)? It isn't immediately clear why a constitution should tell people to protect their own dignity; one might say that people should be free to act without dignity, as they may be free to act without prudence, or without concern for their own safety and health. Those who choose to act in such ways may be unwise or even immoral, but perhaps they are entitled as free citizens to make such choices. But that may not be the ultimate tenor of South African constitutionalism. Whatever the rights of individual citizens acting in isolation, Residents of Joe Slovo is concerned with the fate of an entire community, and with a housing program meant to benefit not only the current residents of that community but also former residents who already left to facilitate the government's program, and nonresidents -- living in other difficult circumstances -- who hope for housing in the new homes to be built. In this context, the duty of each resident to act with dignity, by contributing his or her ingenuity and support to the overall enterprise, is not a matter of individual autonomy but of community well-being. Though Justice Sachs does not use the term here, this understanding of the individual as protected by but also responsible to a community seems consonant with the African concept of ubuntu, which was explicitly invoked in South Africa's first post-apartheid constitution and can be understood to remain a part of the underlying conception of the constitution now in place.
All that said, the exact dimensions of the citizen's (or, presumably, the noncitizen resident's) duties under sections 10 (dignity) and 26 (housing) remain to be explored in cases to come. Fitting duties and rights together in a way that honors both is no small task, and the constitutional text -- which does not explicitly refer to the duties now being discerned by the justices -- offers little guidance. There will be many issues to debate in future decisions.
In Residents of Joe Slovo, Justice Sachs develops the idea that individual people may also have duties to the government. The proposition that evictions needed to be preceded by "engagement" between the government and those it wanted to evict had been advanced in an earlier case, Occupiers of 51 Olivia Road and Others v. City of Johannesburg and Others, decided by the Constitutional Court in 2008. There the Court focused on, to use Justice Sachs' phrase, "the interconnectedness of procedure and substance" and reasoned that "'meaningful engagement' between the occupiers and the City" was "a major pre-condition for determining whether an eviction order would be just and equitable" under the applicable statute, the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, often referred to as "PIE" and enacted as Act 19 of 1998. (Residents of Joe Slovo, par 338). Justice Sachs goes on (at par 407) to recall that the 51 Olivia Road Court also emphasized "that the process of engagement would work only if both sides acted reasonably and in good faith."
Here, Justice Sachs places these ideas in the framework of a broad conception of the concept of citizenship. He writes that the Residents of Joe Slovo case "expands the concept of citizenship beyond traditional notions of electoral rights and claims for diplomatic protection, to include the full substantive benefits and entitlements envisaged by the Constitution for all the people who live in the country and to whom it belongs. At the same time it focuses on the reciprocal duty of citizens to be active, participatory and responsible and to make their own individual and collective contributions towards the realisation of the benefits and entitlements they claim for themselves, not to speak of the well-being of the community as a whole." (Par 408).
What is the constitutional source for this reciprocal duty of citizens? Justice Sachs' judgment offers support for three possible answers to this question.
The first, and most evident, is simply that if the residents will not engage, the government cannot engage with them. Requiring engagement appears to be a central response of the Court to its recognition that cases like this one cannot be resolved by holding one side right and the other wrong. The Court nevertheless must address the disputes that come before it, and it has turned to the engagement of and between the parties as a critical element of finding resolution. Section 172(1)(b) of the Constitution gives courts power, in deciding constitutional matters, to "make any order that is just and equitable," and ordering mutual engagement can be seen as an exercise of this remedial authority. I think, however, that Justice Sachs is offering a response to these cases that goes beyond just an articulation of remedial methods.
The second possible answer is that the residents' tenure on the land -- their constitutionally based right of temporary occupancy -- incorporates a duty to play their part in the government's efforts to address the housing crisis by upgrading the housing in Joe Slovo. "By its nature," Justice Sachs writes (in a somewhat different context) at par 387, "the programme imposed a duty on the residents to cooperate." A slightly different argument is that the residents actually agreed to this condition: "Once the residents had embraced the Project, they implicitly undertook the obligation to allow it to work." (Par 386.) There was, of course, nothing like a signed contract to that effect, and I am not certain how fully any given resident actually understood or consciously agreed to the contours of his or her right to reside in Joe Slovo, but the idea that a constitutionally-based right comes with constitutionally-based limits makes good sense. On this argument, the duty to engage or to cooperate or to allow the program to work is an implication of the right of access to housing in section 26. It might be said that the right of access to housing binds each resident under section 8(2) "to the extent that ... it is applicable" -- that is, that each resident must contribute to helping achieve the community's right of access to housing. "The achievement of a just and equitable outcome required an appropriate contribution not only from the municipal authorities but from the residents themselves." (Par 407)
The third possibility is that the duty comes from the nature of human dignity. Section 10 of the Constitution declares that "[e]veryone has inherent dignity and the right to have their dignity respected and protected." Justice Sachs writes that the Court has recognized that governments' "duties extended beyond the development of housing schemes to treating those within their jurisdiction with respect .... Justice and equity require that everyone be treated as an individual bearer of rights entitled to respect for his or her dignity." (Par 406). But the residents themselves "should be discouraged from regarding themselves as helpless victims, lacking the possibilities of personal moral agency. The tenacity and ingenuity they have shown in making homes out of discarded material, in finding work and sending their children to school, serves as a tribute to their capacity for survival and adaptation.... They had a duty to show the same resourcefulness in seeking a solution as they did in managing to survive in the most challenging circumstances." (Par 407; I've omitted from this passage the sentence from the same paragraph that I quoted in discussing the second possibility, the section 26 roots of this duty, above.) Here it might be said that each resident has a constitutional duty to act with the dignity that section 10 secures. Perhaps section 7(2), which requires that "[t]he state must respect, protect, promote and fulfil the rights in the Bill of Rights," applies to this extent to each citizen as well, again by virtue of section 8(2)).
Does this last argument mean that the constitution imposes on each citizen a duty to protect his or her own dignity (and, perhaps, other qualities)? It isn't immediately clear why a constitution should tell people to protect their own dignity; one might say that people should be free to act without dignity, as they may be free to act without prudence, or without concern for their own safety and health. Those who choose to act in such ways may be unwise or even immoral, but perhaps they are entitled as free citizens to make such choices. But that may not be the ultimate tenor of South African constitutionalism. Whatever the rights of individual citizens acting in isolation, Residents of Joe Slovo is concerned with the fate of an entire community, and with a housing program meant to benefit not only the current residents of that community but also former residents who already left to facilitate the government's program, and nonresidents -- living in other difficult circumstances -- who hope for housing in the new homes to be built. In this context, the duty of each resident to act with dignity, by contributing his or her ingenuity and support to the overall enterprise, is not a matter of individual autonomy but of community well-being. Though Justice Sachs does not use the term here, this understanding of the individual as protected by but also responsible to a community seems consonant with the African concept of ubuntu, which was explicitly invoked in South Africa's first post-apartheid constitution and can be understood to remain a part of the underlying conception of the constitution now in place.
All that said, the exact dimensions of the citizen's (or, presumably, the noncitizen resident's) duties under sections 10 (dignity) and 26 (housing) remain to be explored in cases to come. Fitting duties and rights together in a way that honors both is no small task, and the constitutional text -- which does not explicitly refer to the duties now being discerned by the justices -- offers little guidance. There will be many issues to debate in future decisions.
Sunday, August 2, 2009
Constitutional Property Rights in the "Residents of Joe Slovo" Case
This issue dealt with whether, and on what terms, residents of an "informal settlement" on government land near Cape Town could be evicted as part of the process of developing new housing for poor South Africans. The eight justices who ruled on the case all agreed that they could be evicted, and all insisted on considerably more substantial rights for those being evicted than the trial court had provided.
The justices sharply disagreed, however, on whether the residents had ever been "lawful occupiers" of the land in question. Even if they had (as five justices felt), the lawfulness of their occupation came to an end when the government sought to evict them as part of its housing program -- but the justices felt that the question of whether the occupants of the land were on the land lawfully in the first place was an important question about the status of landless people in South Africa, even if the answer did not make a direct difference to the outcome of this case.
Broadly speaking, the justices disagreed about whether there had or had not been consent from the city of Cape Town (the owner of the land) to the occupants' living there. Justice Yacoob, joined by two of his colleagues, maintained that a city can only consent by a formal resolution, and that consent at common law was a product of an agreement between the party seeking or receiving consent and the party giving it -- and found none of this present. Other justices contended that the pattern of action by the city -- which had been aware of the residents' presence for many years, had negotiated with them on various issues, and had provided substantial infrastructural support -- indicated that in fact the City had given consent.
The "broader consent" approach itself seems to have departed considerably from the strict provisions of prior property law. But the most dramatic proposal, advanced in detail as one thread of Justice Sachs' opinion (also for three justices, including himself), seemed to go even further. Justice Sachs maintained that the City had given consent, but he did so partly on the ground that it would have been "manifestly unreasonable," and hence unconstitutional under South Africa's constitutional right to housing [discussed more below], for the City "[t]o have refused the families the right to erect their temporary shelters on that land." (paragraph [hereafter "par"] 354) Arguing that "[a]ny inferences to be drawn from the conduct of the [City] Council should ... be based on the assumption that at all times it was aware of, and seeking to comply with, its constitutional and statutory obligations to the community" (par 346), Sachs concluded that the families who had moved on to the City's land had a "right to enjoy relatively undisturbed occupancy" there (par 359). (Deputy Chief Justice Moseneke concurred with Sachs, and developed a similar argument of his own, see pars 148, 154.)
As he put it, this right "was neither a real right as understood by common law principles of land law, nor a contractual right as created in terms of the common law. Rather it was an authorisation specific to its context, granted in terms of public law considerations enabling the residents to reside lawfully on the land for an indeterminate but terminable period" (par 359).
This is a dramatic reconceptualization of property, certainly deserving the term "transformative" that Justice Sachs embraces (par 344). At the least, it suggests that governments' decisions about land and residents of land will be interpreted through a powerful constitutional lens, so as to ensure that the meaning of those decisions is, or is made to be, consistent with constitutional requirements as those come to be understood. At the most, it suggests that section 26 of the South African constitution (which guarantees everyone "the right to have access to adequate housing" and requires the state to "take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right") has created a new category of property rights -- rights of the poor to the use of unoccupied government land, rights of such users to government infrastructural support during their use, rights to "engagement" with the government if they are to be evicted (I'll discuss "engagement," and the duties it imposes on residents as well as government, in another post), but nevertheless not (as all justices agree) rights to avoid being evicted when eviction is reasonably deemed necessary as part of the provision of housing rights for all.
Exactly how far such a right might extend remains to be seen. It may well be that the Court will never mark out its exact dimensions, and that the very nature of this right is to remain conditional and incompletely defined. But there are issues that might arise? For example, in South Africa constitutional rights can, depending on circumstances, apply to regulate the conduct of private actors as well as government bodies. Could there by circumstances in which a private landowner is constitutionally obliged to permit homeless people to move on to his or her land? Or could there be a point at which residents have exercised their constitutional right of occupancy for so extended a period that it acquires greater definiteness -- to the point, perhaps, that they could only be evicted as part of a government housing program if they were guaranteed return to the land after the program's new construction is complete? (The desire to return was a very important theme of the Joe Slovo case, but the question of an absolute right to return was not adjudicated.) And to what extent might other constitutional socioeconomic rights provisions similarly oblige a government to support the self-help of destitute people? It seems inevitable that the contours of this new constitutionally-based right of residence, if it is embraced by the full Constitutional Court, will have to be further articulated in cases to come.
The justices sharply disagreed, however, on whether the residents had ever been "lawful occupiers" of the land in question. Even if they had (as five justices felt), the lawfulness of their occupation came to an end when the government sought to evict them as part of its housing program -- but the justices felt that the question of whether the occupants of the land were on the land lawfully in the first place was an important question about the status of landless people in South Africa, even if the answer did not make a direct difference to the outcome of this case.
Broadly speaking, the justices disagreed about whether there had or had not been consent from the city of Cape Town (the owner of the land) to the occupants' living there. Justice Yacoob, joined by two of his colleagues, maintained that a city can only consent by a formal resolution, and that consent at common law was a product of an agreement between the party seeking or receiving consent and the party giving it -- and found none of this present. Other justices contended that the pattern of action by the city -- which had been aware of the residents' presence for many years, had negotiated with them on various issues, and had provided substantial infrastructural support -- indicated that in fact the City had given consent.
The "broader consent" approach itself seems to have departed considerably from the strict provisions of prior property law. But the most dramatic proposal, advanced in detail as one thread of Justice Sachs' opinion (also for three justices, including himself), seemed to go even further. Justice Sachs maintained that the City had given consent, but he did so partly on the ground that it would have been "manifestly unreasonable," and hence unconstitutional under South Africa's constitutional right to housing [discussed more below], for the City "[t]o have refused the families the right to erect their temporary shelters on that land." (paragraph [hereafter "par"] 354) Arguing that "[a]ny inferences to be drawn from the conduct of the [City] Council should ... be based on the assumption that at all times it was aware of, and seeking to comply with, its constitutional and statutory obligations to the community" (par 346), Sachs concluded that the families who had moved on to the City's land had a "right to enjoy relatively undisturbed occupancy" there (par 359). (Deputy Chief Justice Moseneke concurred with Sachs, and developed a similar argument of his own, see pars 148, 154.)
As he put it, this right "was neither a real right as understood by common law principles of land law, nor a contractual right as created in terms of the common law. Rather it was an authorisation specific to its context, granted in terms of public law considerations enabling the residents to reside lawfully on the land for an indeterminate but terminable period" (par 359).
This is a dramatic reconceptualization of property, certainly deserving the term "transformative" that Justice Sachs embraces (par 344). At the least, it suggests that governments' decisions about land and residents of land will be interpreted through a powerful constitutional lens, so as to ensure that the meaning of those decisions is, or is made to be, consistent with constitutional requirements as those come to be understood. At the most, it suggests that section 26 of the South African constitution (which guarantees everyone "the right to have access to adequate housing" and requires the state to "take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right") has created a new category of property rights -- rights of the poor to the use of unoccupied government land, rights of such users to government infrastructural support during their use, rights to "engagement" with the government if they are to be evicted (I'll discuss "engagement," and the duties it imposes on residents as well as government, in another post), but nevertheless not (as all justices agree) rights to avoid being evicted when eviction is reasonably deemed necessary as part of the provision of housing rights for all.
Exactly how far such a right might extend remains to be seen. It may well be that the Court will never mark out its exact dimensions, and that the very nature of this right is to remain conditional and incompletely defined. But there are issues that might arise? For example, in South Africa constitutional rights can, depending on circumstances, apply to regulate the conduct of private actors as well as government bodies. Could there by circumstances in which a private landowner is constitutionally obliged to permit homeless people to move on to his or her land? Or could there be a point at which residents have exercised their constitutional right of occupancy for so extended a period that it acquires greater definiteness -- to the point, perhaps, that they could only be evicted as part of a government housing program if they were guaranteed return to the land after the program's new construction is complete? (The desire to return was a very important theme of the Joe Slovo case, but the question of an absolute right to return was not adjudicated.) And to what extent might other constitutional socioeconomic rights provisions similarly oblige a government to support the self-help of destitute people? It seems inevitable that the contours of this new constitutionally-based right of residence, if it is embraced by the full Constitutional Court, will have to be further articulated in cases to come.
Saturday, August 1, 2009
Just back from two fascinating weeks in South Africa. One of the most striking features of the current scene there is the series of demonstrations, some accompanied by lawbreaking or even violence, around "service delivery" issues. In one recent instance, according to Helen Zille, the leader of the largest South African opposition party, the Democratic Alliance, people who had been assigned quite large plots of land for future houses, but had had to wait a long time to receive the government funds with which to build, had in the meantime permitted other people to move into their "back yards." Now the government money has come, the original recipients of the lots are ready to build, and they want to evict the backyarders. The backyarders in turn are demonstrating. Justice Sachs had similar dilemmas in mind when he wrote, in his judgment in Residents of Joe Slovo Community, Western Cape v Thubelisha Homes and Others (Constitutional Court, CCT 22/08, decided 10 June 2009), that "[t]his is not a matter in which formal legal logic alone can solve the conundrum of how to do justice to the one side without imposing a measure of injustice on the other.... In many circumstances, instead of seeking to find a totally 'right' or 'correct' solution, the judiciary will be obliged to accept the intellectually more modest role of managing tensions between competing legitimate claims, in as balanced, fair and principled a manner as possible." (Paragraphs 332 - 33). (On this and other scores, Residents of Joe Slovo is a remarkable case, which I'm going to talk about in coming posts.)
But as intractable as such problems seem, what's also remarkable is the efforts of dedicated people to address them. So another recent story discusses the efforts in South Africa to treat the increasing number of people suffering from drug-resistant TB. South African laws permit, essentially, locking such people up -- but that response generates many problems of its own, not least that people suffering from the disease are hardly likely to present themselves for treatment if the result will be their involuntary confinement. So now South Africa is trying a new approach, in which the patients remain in their homes, and case workers thread their way through the shanty towns of South Africa to meet and assist individual sufferers -- so far, it seems, with success. Celia W. Dugger, "Khayelitsha Journal: New Effort to Fight TB in South Africa," N.Y. Times, July 28, 2009.
But as intractable as such problems seem, what's also remarkable is the efforts of dedicated people to address them. So another recent story discusses the efforts in South Africa to treat the increasing number of people suffering from drug-resistant TB. South African laws permit, essentially, locking such people up -- but that response generates many problems of its own, not least that people suffering from the disease are hardly likely to present themselves for treatment if the result will be their involuntary confinement. So now South Africa is trying a new approach, in which the patients remain in their homes, and case workers thread their way through the shanty towns of South Africa to meet and assist individual sufferers -- so far, it seems, with success. Celia W. Dugger, "Khayelitsha Journal: New Effort to Fight TB in South Africa," N.Y. Times, July 28, 2009.
Subscribe to:
Posts (Atom)