Of justice and its scales: looking back on (almost) forty years of Rod Macdonald's scholarship on access to justice.

• Author: Klein, Alana

Introduction

Many of you in the room today are jurists--law students, former law students. Many of you are working or have worked in community-based legal clinics. Think back to your original law school admission essay. I am sure this audience's essays were diverse, and of course you may or may not remember yours. But I would bet that a great majority of you expressed something like this: "This world is a messed up place. I'd like to make it better. Somehow--I am not quite sure how--I want to make my difference through law." Maybe, then, at some point in the first year of your studies, you got cynical. "Wait a second," you may have thought, "so much of what law is doing and communicating doesn't really seem to be touching on society's greatest injustices at all."

The person who understood that feeling in the most profound way here at McGill was Rod Macdonald. He certainly was that person for me as a student, as he is for me now. Indeed, since joining the faculty in the early 1980s, before, through, and after his deanship from 1984 to 1989, Professor Macdonald has been the intellectual and moral compass for so many of us here. Today, I am going to talk about how Rod Macdonald's work offers us intellectual, legal, and, importantly, personal tools to cope with that feeling in our collective struggle toward justice.

But first, I'd like to beg your indulgence--and indulgence may be needed here, because I am asking you to let me read a poem written by my own grandfather. It is, however, so very pertinent here. A. M. Klein was a Ukrainian Jew living in Montreal when he wrote this in 1940 (so, mid-World War II).

A Psalm of Justice, and Its Scales By A.M. Klein One day, the signal shall be given me; I shall break in and enter heaven, and, Remembering who, below, held upper hand, And who was trodden into misery, I shall seek out the abominable scales On which the heavenly justice is mis-weighed. I know I am no master of the trade, Can neither mend nor make, clumsy with nails, No artisan,--yet am I so forespoken, Determined so against the automaton, That I must tamper with it, tree and token, Break bolts, undo its markings, one by one, And leave those scales so gloriously broken, That ever thereafter justice shall be done! (1) Of course, this poem is about taking down heavenly justice--divine, religious justice. Those of you who know Rod Macdonald's work know that it is very much earthbound. Yet this poem touches on the themes of Rod's past and ongoing work in access to justice in so many ways: in its embrace of justice without, despite, or often in opposition to what he calls official law; (2) in its parallel recognition of the justice we can find and build, often more readily, in the everyday; (3) ad in its notion that the layperson--"no master of the trade"--so determined against the "automaton"--the disconnected, unthinking imposition of norms--would be active in replacing the false justice with an earthly one that is meaningful on the ground. (4)

I hope I can flesh out these connections today. My goal is to share with you how Rod Macdonald, over his career, reconceived the meaning of access to justice, and how the insights and challenges he gives us affect our work together in clinical practice and in clinical legal education. This is a daunting task for thirty minutes.

Fortunately, Rod's own work helps me out here. Like many powerful ideas, his theories about access to justice can be expressed in so many different ways: concrete, conceptual, simple, complex. In fact, Rod purposely frames his own ideas at many different levels of abstraction. (5) He doesn't do this just to help me as a student of his work; rather, Rod Macdonald writes for different audiences--theorists, policymakers, lawyers, searching students--because the very substance of his message requires it to be useful in all the possible ways and to the broadest of audiences.

Rod Macdonald's work on access to justice started from the same frustrated place in which I left you at the beginning of this talk: the recognition that our law is not relevant or meaningful to most people's struggles for justice in our society. So he began, as many of us do, by working on ways to make sure that it's not just those who hold the upper hand already who are able to know and rely on what law provides.

Indeed, in the 1970s, Professor Macdonald's work on access to justice was mainly in the area of public legal education, through what was called the Community Law Program at Windsor's Faculty of Law. (6) The projects were great, and innovative for their time. There were community forums, posters, flyers, pamphlets, brochures, videotape dramatizations (like one explaining welfare law and workman's compensation; another, what happens in law when a marriage breaks down) to be broadcast on cable TV, all designed to lessen the gap between those who knew and could use the law and those who didn't. This was access to justice: knowing about the law, understood here as the rules made by courts and legislatures.

By 1989, Professor Macdonald was chairing a Task Force on Access to Civil Justice struck by the Quebec Minister of Justice to review the entire civil justice system in Quebec. The task force made no fewer than 131 detailed recommendations, running what was then the access-to-justice gamut: better access to legal aid; redesigned state institutions like small claims court and the administrative tribunals; the promotion of alternative dispute resolution; and what was the farthest...