Luigi Ferrajoli's theory of fundamental rights and Clinical Legal Education

Abstract

This chapter discusses the role universities can play in defending fundamental rights through a focus on social justice in legal education. This role has traditionally been dependent upon the freedom universities have enjoyed from the interference of external actors, whether state or private, which has allowed them to foster debates about democracy, fundamental rights and liberties, discrimination, oppression and many other fields that help societies to be more egalitarian and inclusive. However, recent reforms to legal curricula, adopted by European Union member states, have incorporated elements of Human Capital Theory into legal training. This approach presents legal experts as mere technicians whose role is to focus on practical skills and formal requirements, disregarding the importance that critical thinking and social justice have in the training of law students and in the protection of democracy and its values. The author argues insights provided by Luigi Ferrajoli’s conception of fundamental rights can be applied to Clinical Legal Education programmes in a way that can challenge the narrow technocratic interpretation of the role of legal professionals. Such an approach can be used to reintroduce debates about the disparities that exist between fundamental rights and their legal safeguards and, in doing so, encourage students to embrace their public role as defenders of fundamental rights with a commitment to promotion of social justice.