Forming Lawyers who can Contribute to Equitable Access to Justice in South Africa

Abstract

Drawing on Amartya Sen, this paper proposes that clinical legal education and training should be evaluated in the light of contributions to wellbeing and agency freedoms, foregrounding people’s capabilities as an appropriate metric for judging access to justice. The context is post-apartheid South Africa and aspirations towards transformative Constitutionalism which seeks to operationalize values of dignity, equality and freedom for all. The role the legal system, mediated by legal practitioners, should support Constitutional values and the public good as envisaged by the National Standards for university legal education. This challenge is explored in the article, drawing on a qualitative interview study. The researchers interviewed candidate attorneys across six University Law Clinics to identify the professional capabilities they valued for the purposes of contributing to enabling people to flourish in their everyday lives. Transformative Constitutionalism further suggests a set of capabilities which legal practice should enable. Through the perspectives and voices of practitioners, valued legal capabilities and the corresponding university education and training practices are also identified. The idea of legal capability is developed and broadened both conceptually and empirically, building on work both by Atkins and Habbig and Robeyns. The claim is made that legal education, lawyers’ professional capabilities, and transformative Constitutionalism should be grounded normatively in a capabilities metric of justice and hence what matters for people’s wellbeing and agency freedoms.