Cause Lawyering and Compassionate Lawyering in Clinical Legal Education: The Case of Chile

Introduction: Cause Lawyering and Compassionate Lawyering as Ideologies of Clinical Legal Education

In many parts of the world, there is a historically constructed social expectation that, in the face of poverty and the unequal access to justice that follows from it, the legal profession will provide legal aid for free to individuals and groups in need. This paper explores the ideological paradigms that can guide law school clinics in their efforts to satisfy this expectation. Taking clinical legal education in Chile as a case study, I will distinguish between two different ideological paradigms: compassionate lawyering and cause lawyering. Each of these paradigms offer a distinct ideological understanding of the public or social roles of a law clinic and, arguably, of the legal profession itself. As a result, each paradigm presents its own unique set of challenges and opportunities.

Some people might object to this kind of open discussion of the ideologies that vie for control of our imagination, due to a fear that ideological discussion could encourage a deviation from the pedagogic objectives of legal education. To satisfy their concerns, however, we must do the opposite of what they suggest. To avoid illicit ideological operations that distort our cognition, and to repair the effects of these operations, we must explicitly theorize and discuss the ideologies that inhabit the legal world at large, and law schools in particular. Ideologies about power, its distribution in society, and its legitimate uses always inform and shape educational theories and practices, even when these ideologies remain unexamined and uncontested. Nonetheless, concerned individuals are right about the fact that any discussion of the ideologies that guide clinical legal education must begin by recognizing that the primary objective of any educational initiative is to enrich the learning experience of students. Since legal clinics form part of an institutional program of studies, these individuals argue, the primary raison d’être of any law school clinic cannot lie outside the walls of its law school. However, in the case of law students, the practical orientation of their future professional work makes it crucial that their education equips them with an understanding of the legal reality that lies beyond those same walls through preparatory training (moot courts), and direct experience (law clinics). Throughout the centuries, many people have argued that the best methodology for understanding legal practice is to be exposed to it. In the words of Valentín Letelier, a Chilean positivist sociolegal theorist and progressive reformer of the late nineteenth and early twentieth centuries, knowledge of the practices of the legal profession “cannot be acquired but through direct interaction with lawyers and courts; for in one single day visiting the courts, one learns more than in a whole month of academic exercises.”¹

In order to understand legal reality, one must understand its social context; poverty, after all, often translates into unequal access to justice. This disparity is prevalent in Latin America, which is characterized by a significant gap between the high prose of constitutional clauses and the hard facts of social life. Here, to understand the market inequalities that shape and distort access to justice, one must understand the many inequalities that form social reality. Eduardo Novoa, a critical legal scholar who served as legal advisor to Chilean President Salvador Allende, raised this point, arguing that legal education “ought to present not only the theoretical and normative aspects of the law, but must also teach the student the way that its rules and principles are put into practice in our society, taking pains in explaining all the points where that practical application departs from those norms.”² Novoa believed that legal education must go beyond the study of law in action in order to pay attention to the specific legal inequalities that emerge through the gap between law in books and law in action.³

In recent decades, many Latin American legal thinkers have called attention to the significance of material, social, and political inequality in the (dis)organization and (dis)function of the...