I
attended the Yale Law School Doctoral Scholarship Conference held between
November 30 and December 1, 2012. The conference brought together graduates
students from law schools and faculties across the world. Its theme was “Conflict
and Collaboration: Interrogating the Role of Law in Building Solidarity.” I
made a presentation in which I applied insights from Pierre Bourdieu’s “habitus” to frame a sociological
understanding of the impact of legal education, professional training and
socialization on lawyers and judges in post-colonial human rights adjudication
in Commonwealth African countries. The traditional formalistic view of
adjudication holds that in resolving individual cases judges are constrained
only by rules and doctrine applied to specific factual situations. These
factors are therefore conceived as being internal to the field of law and
adjudication. According to this model, law is obsessed with ineluctable rules,
principles and axioms. According to Edward White, “judges began their
decisions by making verbal distinctions, [and] defining concepts in useful
ways. They then pronounced their definitions as axiomatic. From then on it was
a rush downward to the result: the axiom was applied to the facts of the case,
certain things ‘inevitably’ followed.” However, Bourdieu’s concept is critical
of the above theory and proposes a different framework. He suggests that judges
are constrained not by exogenous rules or doctrine external to their own
attitudes, but are ideologically prompted by the pressures of the legal habitus. To that extent, the constraints
on adjudication are rather internal to the judges. They are expressed and
become manifested by way of endogenous attributes, (which according to John Elster
are “second order attitudes”). These attributes grow from within judges through
educational exposure, traits acquired through professional orientation and
socialization as well as those from training and experience. Using comparative
examples from three Commonwealth African countries – Ghana, Malawi and Nigeria
– I argued that in these jurisdictions professional habituation provides a
better account of human rights adjudication than do doctrines, rules and constitutional
texts. The transposition of British laws and systems and consequential
displacement of the cultures and traditional dispute resolution processes of
the colonized in these countries is very well noted in the literature. What is
less elaborated is the extent to which the impact of these colonial structures
and systems has endured well beyond the termination of the pure colonial
experience. The
paper’s central argument therefore was that the orientation of the courts in
these three jurisdictions in human rights decision-making is likely more a
function of the pressures of the legal system to which they have been
habituated through education and professional socialization than the
constraints of rules and doctrine. I was able to expose the continuing
influence of colonial common law principles on clearly non-common law
constitutional questions especially in the resolution of human rights
complaints. My presentation showed that judges, lawyers and scholars all share
a measure of responsibility for this situation which has retarded the effective
use of domestic constitutional guarantees in the countries studied to protect
human rights and limit governmental power. This led me to propose solutions
that could ameliorate this dynamic. While there may have been need in the past
to inculcate comparative elements into the teaching and study of constitutional
law in the targeted African countries, that need is now totally urgent and ever
more critical. Opening up the legal education curriculum to comparative
constitutional adjudication and praxis would highlight flaws inherent in the
current pedagogical approach in these countries that is heavy on common law
concepts and doctrine. This would go a long way towards altering the
institutional structures of the current legal habitus and enabling a reformed one. But reformation of the legal
curriculum would take time to produce expected results. In the short term
therefore, on-the-job judicial training programs should take on board the
challenges of creating a new habitus
in designing modules for this area of the law. It was a most exciting and beneficial experience for all those who attended.
