The Critical Lawyer

by Phoebe Churches



By this I don’t mean the senior partner you had during articles or clerkship or the Magistrate looking at you through semi-closed eyes during your very first appearance.*

I am talking about Critical Legal Theory in practice.

I came to the law after a lengthy stint in social work, working with some of the most vulnerable and disadvantaged in the community. Accordingly at law school – I was a bit of a fish out of water as a left, feminist, progressive type – and I really dreaded the impending requirement to complete core subjects such as Company Law.

When the first seminar of Company Law rolled around, I sat listlessly contemplating the weeks of boredom stretching out into eternity before me. The lecturer lost no time discussing the first piece of assessment. Ho hum. How would I wade through this miasma of…wait, what? A surprise. It was an essay, no, that’s not at all surprising – but the focus of the assignment was like a bolt literally out of LEFT field. The topic of that essay was: ‘It is often said the law is politics. This statement is applicable in corporate law as well. Explain and discuss this statement with particular reference to Australian case law and legislation’.

My paper read something along the lines of: it is an absolute legal fiction that the law is blind and it certainly does not operate in a social vacuum; on the contrary – the law works to preserve and entrench social and political inequality. So, one award winning Marxist analysis of the theory of the corporation and the doctrines of separate legal personality and limited liability later – my faith in the potential for the practice of law to be a tool for social change was restored. I was encouraged that I could perhaps become a happy lawyer, ducking the angst and depression so endemic in the field by making a meaningful contribution towards social justice.

So, how can working for social change make you happy? The practice of gratitude has been championed by the mindfulness movement for some time as a way to help bring happiness and balance into our lives. If you are looking for ways to keep perspective and feel gratitude, I recommend spending time with people who have had it much harder then you. Critical Legal Theory looks at strategies for getting the law to work towards social change and more socially just ends.

My journey was not a long one. I came from the community sector so I didn’t have a Road to Damascus moment. However my journey did go via the Critical Lawyers Handbook which must be a roundabout to Damascus St for many. In any event, regardless of what else I may do, I cannot foresee a time when my life will not be anchored by work in Community Legal Centres or not for profit services for the most vulnerable in our community such as the ASRC.

What will you do?

[*] The one who scratched red marks and annotations over every single word in your letter of advice or contract clause.

[†] I really did win the Company Law prize that year.

[‡] If you find this notion challenging or resonant and would like to explore further – here is a select reading list to get started: Hugh Collins, Marxism and Law (1984) and R.W. Connell, Ruling Class Ruling Culture – Studies of Conflict, Power and Hegemony in Australia Life (1977).