Legal Literacy

Archie Zariski

• Publisher: AU Press
• Year: 2014
• ISBN:
  9781927356463
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

To understand how the legal system works, students must consider the law in terms of its structures, processes, language, and modes of thought and argument—in short, they must become literate in the field. Legal Literacy fulfills this aim by providing a foundational understanding of key concepts such as legal personhood, jurisdiction, and precedent, and by introducing students to legal research and writing skills. Examples of cases, statutes, and other legal materials support these concepts.While Legal Literacy is an introductory text, it also challenges students to consider critically the system they are studying. Touching on significant socio-legal issues such as access to justice, legal jargon, and plain language, Zariski critiques common legal traditions and practices, and analyzes what it means "to think like a lawyer." As such, the text provides a sound basis for those who wish to pursue further studies in law or legal studies as well as those seeking a better understanding of how the legal field relates to the society that it serves.

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INTRODUCTION

This book is for readers who wish to know enough about law and legal systems to be able to accomplish something within the law or to go about changing it. In other words, the information found here should help readers accomplish some legal tasks themselves and offer a constructive critique of law and its institutions. “Legal studies” is a term with a broad meaning but is usually contrasted with “law studies” or “studying law,” which are most often used to describe preparation for professional practice as a lawyer. Studying law is comparable to learning a new language. Students in law schools report feeling that they are being taught to take on a new identity as part of learning to “think and speak like a lawyer.” As a result of intensive immersion in legal culture during the course of their studies, lawyers emerge with a distinct view of the world and a specific language to express that vision. They largely lose the ability to both think and speak as anything other than a lawyer. Legal studies, however, attempts to preserve what we might call students’ “bilingual” or “bicultural” capacities by allowing them to see the world simultaneously like a lawyer and a layperson.

It is the critical aspect of legal studies that helps students preserve an “external” view of law and the legal system. Although lawyers accept some responsibility for criticizing and improving the law, most of their efforts are directed at assisting clients to achieve their goals within the existing legal system. Lawyers and judges take a mostly “internal” perspective on law as professional “insiders.” The student of legal studies should instead demonstrate an ability to take both an internal and external perspective on the system.

Legal studies takes an external perspective on law similar to that found in the “law and society” and “socio-legal” approaches to research and scholarship. From such perspectives, law and society interact (though not always on equal terms), each continually reshaping the other. Socio-legal studies, as part of the social sciences, aims to find enduring concepts, models, and theories about the intertwining of law and society and only incidentally concerns itself with the actual reform of legal institutions. By contrast, the critical wing of the law and society movement was initially focused on how law could be used to transform society, making it more egalitarian and inclusive. The focus in this book, however, is more on how members of society may transform law from the inside out using the tools of the legal system. A critical external perspective on law may reveal the need for legal change, but an internal perspective and traditional legal methods may be necessary to achieve some improvements.

Canadian examples are mostly used in this volume, but the general principles, concepts, and ideas presented are relevant to all legal systems that draw on the British legal tradition: the United Kingdom itself, Australia, New Zealand, other Commonwealth nations, and to a lesser extent, the United States. Such systems belong to the “common law” family of legal traditions and institutions, in which the decisions of judges in individual legal cases brought to trial establish the law by setting precedents that will be applied in later, similar disputes. Thus, law is built “from the ground up” as it were, with decisions in particular disputes becoming accepted as the basis for law commonly applied throughout the nation. Law is also created in common law systems by legislators in parliaments and other similar bodies. In common law legal systems, disputes that result in court proceedings (“litigation”) thus have a prominent role; this fact has affected many aspects of our legal institutions and procedures.

Over hundreds of years, the process of litigation in common law legal systems has developed characteristics with far-reaching implications for how law is administered and justice is achieved. As a result, common law litigation today incorporates the following characteristics:

1. Justice lies in following proper legal procedures—thus, “procedural justice” is the principal goal;

2. These procedures require debate and discourage dialogue, promoting an adversarial approach to dispute resolution over a cooperative one; and

3. The outcome of these procedures is often unpredictable, although the goal of law is to bring more certainty to human relations.

In other words, justice is the uncertain result of structured confrontation. If you are not a lawyer, you may find this statement about the legal system surprising, perhaps even shocking. If you are a lawyer, you will likely agree and say “yes, law is based on procedural justice and adversarialism, which leads to indeterminate outcomes.” From a legal studies perspective, these aspects of our legal system call for an explanation, and perhaps also require reform.

This description of litigation in Canada’s legal system highlights the need for those seeking justice through law to be prepared to take an active part in reaching their goal. Legal literacy is the term used in this book to describe the knowledge, skills, and abilities needed to pursue litigation in Canada and other similar common law legal systems. For instance, a person pursuing a legal claim has the responsibility to help prove the facts and make arguments as their contribution to the production of justice. It will therefore be useful for them to know how law and the legal system are structured (the topics of Chapters 3 and 4), and how legal process and procedures work (Chapter 5). Knowing how to find the written materials that comprise the body of law, and how to read them with understanding will also be necessary to pursue litigation (Chapters 6, 7, and 8). The ability to express legal ideas and arguments in a persuasive way to a decision-maker is the final skill this book will explore (Chapter 9). In this book, I will discuss the techniques learned as a part of legal literacy as the “tools” that must be used to fashion justice through law in our legal system. At the same time, from a critical legal studies perspective, I raise questions about the complexity, efficiency, and effectiveness of our present system of litigation.1

PROCEDURAL JUSTICE

“Procedural justice” is a term used by psychologists to describe the positive experience reported by people who feel they have been treated fairly while participating in legal proceedings. Feelings of being respected, listened to, and understood by legal authorities usually lead participants to be satisfied with the experience, even though the ultimate result may not be what they hoped for. In other words, people who feel they have been treated fairly consider the process they have gone through to be “just,” although they might question the justness of the outcome. Procedural justice can be compared to “substantive justice,” a term describing a result that is correct according to a universal standard of justice and is therefore acknowledged to be just by everyone concerned.

Modern Western nations such as the United Kingdom, Canada, and the United States are heterogeneous societies with significant numbers of immigrants who have contributed a wide variety of cultures, religions, and philosophies to the mix of beliefs, ideas, and attitudes we observe around us today. In such societies, universally accepted standards of justice have little chance of taking root. Law is not thought to embody divine will, and judges are not considered to be divinely inspired. These circumstances make it difficult indeed for legal institutions in Canada and similar countries to achieve substantive justice. There will always be some who disagree with a ruling.

From a legal studies perspective, this represents a serious imperfection in our legal system because it could lead to disrespect for legal institutions and law in general—the problem of maintaining the legitimacy of the legal system in the eyes of the public. Legal systems faced with problems of legitimacy have focused on procedural justice as the answer to public doubts about their capacity to deliver substantive justice, and this has been an effective response.

Here are some examples to give a better understanding of the concept of procedural justice. Section 7 of the Canadian Charter of Rights and Freedoms (included in Canada’s Constitution) reads in part:

Legal Rights

Life, liberty and security of person

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.2

Reading this, you might think that the phrase “in accordance with the principles of fundamental justice” means something like “in accordance with a set of rules (or a code)” that determines the just result in any dispute about individual rights. But that is not what it means to lawyers and judges. For them, these are the minimum required procedures to follow in order to arrive at a just result. The Supreme Court of Canada noted in a recent case considering the meaning of Section 7 to be that “fundamental justice” simply requires a law not be arbitrary, that its adverse effect on people is not disproportionate to any public benefit, and that it does not do more than is necessary to accomplish its purpose.3 Provided these criteria are met, governments may pass any law they consider desirable, and it cannot then be challenged in the courts under Section 7. These are essentially procedural restrictions on making law—provided legislation is written carefully, with these guidelines in mind, governments may legally limit everyone’s life, liberty, and security.

Here is a second example of procedural justice in relation to decision-making that leads to action by government authorities. It is now well accepted in the law that such decisions must be made according to principles of natural justice and fairness. Again, the Supreme Court of Canada has confirmed what this standard means. In a recent case, the court established that even when collecting a debt, governments are bound by the duty to use procedural fairness, which involves giving notice to the debtors and receiving responses from them.4 These procedural steps constitute justice in that situation, but in the end they do not relieve a person from paying what is due.

Finally, here is an example of the importance of procedural justice in criminal law. The Supreme Court of Canada has confirmed that a procedural irregularity during a criminal trial that is an error of law may amount to a substantial wrong or miscarriage of justice, and can lead to a conviction being thrown out.5 Such is the strength of the law’s concern for proper procedure.

Procedural justice is a response to the reality that people in our society do not agree on universal standards of justice which lead to the absolutely correct result in every situation. Instead, we accept a legal system that delivers justice according to the law by following a series of legally approved steps, or “legal procedure.” If these procedures ensure fair treatment of the people involved, we believe procedural justice has been provided, and we accept the results. In other words, the process of following the correct procedures produces justice. Thus, justice is the result of well-planned action, not something already present that merely needs to be revealed. This description of justice may be hard to accept if you are not a lawyer, but it is familiar if you are, because legal education includes learning to take the right steps at the right time—that is, lawyers become experts in legal procedure. What procedural justice means for someone pursuing their legal rights is that they must become actively involved in producing justice for themselves, and cannot just expect someone else to discover and accept the justness of their claim.

Procedural justice requires that the procedures to be followed are well designed to accomplish their purpose. A common design of the litigation procedure is to find out what has happened (the facts) by commenting on the situation (the argument) to persuade the judge to use the appropriate rules (the law) in order to reach a rational decision (the judgment) that does justice to the parties.

I will examine and critique the litigation processes and procedures found in Canada and similar legal systems in detail in Chapter 5.

THE ADVERSARIAL SYSTEM AND ADVERSARIALISM IN LAW

A second distinct characteristic of common law legal systems is their reliance on the adversary system to propel and manage litigation. The adversary system requires parties in dispute to take primary responsibility for pursuing their claims (or maintaining their defences) by collecting evidence and presenting it to a judge, along with their arguments, for decision (adjudication). In other words, the court is not expected to become actively involved in preparing a case for trial. The role of the judge is merely to hear what is presented by each side, and then to decide which party has put forward the best evidence concerning the facts, and the most persuasive arguments about the law. The adversarial approach to litigation stands in contrast to the inquisitorial approach found in most legal systems that are not based on British common law traditions. In an inquisitorial system of litigation, the judge takes primary responsibility for collecting evidence and preparing a case for decision, although the disputing parties also contribute to the process.

In the common law system, the expectation that the parties will pursue the dispute themselves without significant intervention by judges or other officials continues throughout all steps of the legal process, including the trial, where disputants present their evidence and arguments in whatever way they see fit, constrained only by the rules governing how trials are conducted. Courts refuse to “second-guess” the parties, and thus judges decline to intervene in deciding how cases should be presented, calling this a type of “paternalism” inconsistent with the adversarial system.6 Everyone is required to follow proper legal procedures and to pursue their claim diligently and independently, whether or not they have the assistance of a lawyer. This is made clear, for example, by Rule 1.1 (2) of the Rules of Court of Alberta, which states, “These rules also govern all persons who come to the Court for resolution of a claim, whether the person is a self-represented litigant or is represented by a lawyer.” Judges will offer some extra guidance to parties without lawyers, but an impartial decision-maker must avoid becoming an ally. Chief Justice McLachlin of the Supreme Court of Canada put it this way, “The trial judge may try to assist, but this raises the possibility that the judge may be seen as ‘helping,’ or partial to, one of the parties.”7

The adversarial approach to justice makes a person with a legal claim responsible for finding their own way through the legal system with minimal official assistance. Lawyers are available to help, but many cannot afford them. This form of litigation is consistent with Western modes of thought that emphasize polarity and dichotomy (for example: true/false, good/evil, right/wrong). A trial judge who hears two versions of the facts must choose which is to be believed as true, and which of two legal arguments will be accepted as right and correct. Adjudication in common law systems therefore consists of declaring a winner and a loser based upon the strength of the cases researched, organized, and presented by the parties. Litigation uses the methods of confrontation and debate as the primary means of resolving disputes. In doing so, it follows Western traditions of scientific inquiry, in which a hypothesis and its negation (“null hypothesis”) are tested by searching for data that tend to confirm one idea or the other. The Western practice of political decision-making based on debate is also reflected in adversarial legal traditions. Scientific knowledge and democratic politics are examples of the value of confrontation ...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Dedication
• Contents
• Chapter 1. Introduction
• Chapter 2. Legal Literacy and Other Literacies: Examining the Concept and Objectives of Legal Literacy
• Chapter 3. Legal Structures: Structures of Law and Legal Institutions
• Chapter 4. Legal Systems: Legal Systems—Linking Legal Institutions
• Chapter 5. Legal Processes and Procedures: Planning and Procedures for Processes used by Legal Institutions
• Chapter 6. Legal Language: Examining Language in Legal Institutions
• Chapter 7. Legal Research: Skills and Techniques for Researching Law
• Chapter 8. Legal Interpretation: Skills and Techniques for Making Sense of Law
• Chapter 9. Legal Communication: Oral and Written Communication to Achieve Legal Objectives
• Notes
• Glossary of Terms
• Bibliography
• Footnotes