The Journal of Indian Law & Society (JILS) is a pioneering law journal, managed by the students of West Bengal National University of Juridical Sciences, Kolkata.
As a prelude to its 10th Volume dedicated to Legal Education in India, the JILS Blog is going to publish a series of interviews with thought leaders in the Legal Education space in India.
This is the third interview in the series of interviews titled ‘Reforms in Legal Education’. The interviewee for this part is (Dr.) Swethaa S. Ballakrishnen, Assistant Professor of Law, and of Sociology, Asian American Studies and Criminology, Law and Society at the University of California Irvine.
I still remember how labour law (Kannabiran) and statutory interpretation (Dhanda) was taught to me as a student and how much more effective it was for having been connected to a context outside of the actual precedent. They were still both doctrinal classes, but they were taught within contexts of caste and poverty and political mandates of the times that they were decided in. And what can be done for these classes can be done for all classes – the centrality of a social justice morality should be agnostic to the substantive core of the class. For example, conversations around race and gender and class are central to all conversations in the US pedagogical context, independent of the actual subject one is teaching. That’s because you cannot teach organic precedents without acknowledging the historic structures upon which these judgements have been built, and you cannot avoid the social movements that have shaped and produced them.
Clinical education affords another important extension to this social justice socialization approach: the implications theory can have for present practice. The most effective approach is when these false dichotomies between doctrine/theory and practice/action are done away with, and we see the usefulness of their synergies. I teach now at a school (UC Irvine School of Law) which is committed to welding these categories and the impact on students’ training I think has been really powerful to watch. The mandatory clinic requirement trains students to think about the extensions to constructs and frameworks as they apply in practice. And I think the more structures we can create to afford these recursive feedback loops within the academy, the more generative it will be for students.
But such an environment needs a systemic commitment at the institutional level. Students are constantly receiving messages from the administration about what is important, what has value, and what the “culture” of their environment is. So to the extent a social justice model is a priority, it cannot just be a think spoken about. It has to reflect in the kinds of systems in place at schools: the kinds of academics valued, the kinds of publishing and service that is rewarded, the kinds of teaching and training methodologies that are given primacy.
Question 3: Today the sense that we get is that students in law schools consider themselves as a part of a ‘modern caste neutral’ Indian. They divulge information about their caste identity but how important do you think is the need that the prospective officers of law, serving the goal of justice, should be aware about the caste system to be able to understand better the socio-economic structure of the Indian society?
Prof. Ballakrishnen: First, caste neutrality is really just another way of saying one has caste privilege. If one can access neutrality, i.e. not be bothered by the implications of it as a central identity, it is another way of saying that one’s caste has never been an impediment to their lived experience.
If you can afford to access caste identity without violence, if it is not a source of deprivation, then its perceived neutrality in itself is a privilege and not acknowledging it or labelling it neutral reinforces that privilege. It is like saying someone “doesn’t see race” – it literally is a way of cancelling another’s life experience as insignificant because it is not self lived. I guess you could argue that there might be an ideal world where neutrality is unequivocally accessed by everyone, but I am not sure that is possible or even useful.
Second, I think it is necessary to address caste as a framework in the classroom both to acknowledge the ways in which it expressly dislocates as well as the ways in which it silently reinforces status and power. This is especially true, as we start to think about who we populate in our classrooms, whose voice is heard, whose perspective is valor-ised, etc. Acknowledging systemic privilege is central to locating the ways it gets reinforced over and over again, often times by remaining unacknowledged.
A visible example, as research and narrative have both recently shown, is in the ways merit and talent is examined in law schools, especially as most extra curricular activities are dependant on language and how comfortable one might be with presenting one’s self in classroom. This idea that the kinds of social and cultural capital you have and bring to an environment is not new, and in the case of higher education in the Anglophone global south, it is a matter of how you talk, the kind of affect you are able to produce, your ease with presenting ideas, your confidence about taking a stand, etc. All these are hyper visible and still under talked about as we think about student participation and success. I don’t know if inequality can be done away with or reduced just by naming, but if you don’t talk about it in the classroom, you’re definitely doing it a deeper injustice.
Finally, there is the struggle of who sets the tone and how to handle the necessary conflicts that are bound to arise from bringing these issues into the classroom. Given how young students are when they start at these schools, their early socialization is crucial and teachers and institutions have a specific sort of burden to ensure these discussions have room to breathe. At the same time, there is the issue of posturing and liberal rhetoric: a sort of tension between those who are liberal elites with the knowledge/social capital/ experience of talking about caste and privilege in a certain manner and the kinds of complications that can bring in terms of making the class a safe space. Key to this part of the solution is recruiting more diverse faculty and valorising their experience in ways that can produce classrooms with the capacity for nurturing inclusive excellence.
At the same time, it is not all straightforward. As someone who thinks of teaching as a political act, I am constantly bringing my identity into the classroom and most of my classes are taught from extremely critical perspectives. But this does not necessarily make it instantly better for all. I’m sure this sort of hyper charged classroom can rub some students the wrong way but taking that chance and staying vulnerable with the difficult process is sort of what is at stake here, especially in these times. I guess from where I stand, teaching or being an active teacher just cannot happen with a neutral perspective. And I’m very cognizant of how lucky I am to be in a school and amongst colleagues that value that.
Question 4: How do you think extra-curricular activities in law schools that are also reflective of the inequality that the curriculum harbours can be changed? Can structuring moots centered around social legislations like labour laws, women-centered legislations or opening up student-run journals based on such societal areas be a positive step towards exposing the students towards the realities of the society?
Prof. Ballakrishnen: As I said before, I think co-curricular activities are definitely crucial to a well rounded higher education, especially since different pedagogical tools work for different students. But then again, activities and aptitudes for them create their own kinds of inequality.
There are likely to be specific students that take up moot court or advanced research and legal writing, and the chances are that the students that self select into these activities have inherent advantages like ease with English, a certain kind of cultivated confidence, mentors and friend networks, etc. I’m not suggesting that schools do away with these activities, but just that we also pay attention to the attrition or negative samples of those who do not take up these activities. There are students who might benefit from these but they were aligned to do so anyway.
One way would be to think of ways to sustainably diversify these activities through mentorship or other programs. But another is to invest in other kinds of structures where there is a commitment to diverse actors on their own terms. It could be smaller introductory seminars that get people who don’t talk to each other naturally due to difference, to discuss and grow. Thinking through what might work for each school’s context and spending time on that reorientation might be more valuable than simply changing these already established structures.
Question 5: You have written about accidental feminism in elite law firms and the criticism of how this is supported by inequalities themselves and are hard to replicate. Recent surveys have found that women seem to be doing better than men in terms of their educational performances in law schools. Do you think that the concept of accidental feminism extends to law schools as well?
Prof. Ballakrishnen: Well, yes, my forthcoming book is about lawyers in firms, but really it is about the professionals in India and how certain kinds of women perform in unprecedented ways. I argue that it is not just a straightforward narrative of just caste or class, since these factors have always existed, but rather a specific comingling of a range of factors (including caste and class of course) that bring about specific kinds of equality outcomes.
On the one hand it feels, it is terrible because it is specific win for a certain demographic of women against a backdrop of stark income inequality. But at the same time, the fact that it is happening at all, and happening in this way, reads as a certain kind of accidental win which feels important to take away from.
The accidental part of the argument is that this “success” was not a function of any social movement or agentic investment on behalf of the firms. That’s not how it happened. Most firms did not become gender-friendly or gender-neutral in some sense because someone asked for it or thoughtfully tried to create it. It was incidental, and the book unpacks a bunch of different mechanisms and different analysis which produced this outcome.
One part of the argument is that the lack of intention might have counter-intuitively been useful. For example, if a firm had particularly defined itself as a feminist firm, you can imagine a resistance that follows such coding. Instead this incidental emergence afforded a new kind of opportunity. This doesn’t mean that accident can or always should replace things which happen with intention. The book is clear that this is an additive rather than replacing argument. Thoughtful investments in movements and progress narratives have been crucial to gender equality. However, the books makes the case for a kind of non-planned action which could offer alternate path dependencies that can change the nature of institutions.
The tension with me for the book is that while it is sociologically fascinating that women have such outcomes which they haven’t had thirty years ago, this quick progress has come at a price. Then the question becomes, is that success something which one can truly celebrate without taking into account the historic inequalities that it is buttressed by. In the book I argue that this is a harder question to answer, because there is no linear, straight-forward, direct answer to it. But I think, over the last 10 years of working on this project, that its global exceptionalism is worth recording, observing, and importing to the extent possible.
How does it apply to law-schools? I don’t think that the modern law-school models are incidentally feminist, there are reasons in their structural histories that suggest that they are gender equal by design. A part of the book reflects on this feeder law-school mechanisms: for example, as actors who are socialized in gender equal schools, similar representations in the firms they work at (when compared to, say, engineering or business school graduates who then enter consulting firms), this representation is not unusual or surprising.
This has its own sort of path dependency: you have a fairly gender egalitarian entry into the law-schools (often because men and women’s high school outcomes are so much more comparable than later in their life stage), the recruitment is not so much about feminism as it is about being modern and meritocratic and “picking the right person”, which then makes other kinds of factors trump gender in a way.
But there is inequality in this “picking the right person” too. Recent research on these trends shows that if you see the difference in between urbanity and gender, then women from the urban centres are much likely to be represented than women from non-urban centres.
So, we have that kind of representation in classroom, we have urban middle-class women and non-urban men joining and when the law firms pick women, they are not picking gender, they are picking urbanity. This reminds us of how these intersections play out. At the same time, these categories are not mutually fungible. Equality and meritocracy as concepts have not traditionally helped women very much and in fact have been used as tools to keep women out.
Finally, there is the life course part of the story – law schools that graduate students in their early twenties, feed into a job market progress that allows women to make different kinds of work and family choices than they might have had to if they were entering the job market at a later stage. All to say that the implications for this construction of incidental equality at one level (i.e. the firms) is predicated on the representation at the level of the school.
Interviewer comment: That’s true, in fact if we see the rank holders of CLAT, women rankers mostly come from Tier-I and Tier-II cities, unlike men who come from all Tier-I, Tier-II and Tier-III.
Yes, in fact the NUJS diversity report data shows it well that women come from mostly Tier-I cities and men from Tier I, II & III and when the law firms pick women, they are not picking gender but they are doing Tier I versus Tier 2, meaning picking urbanity.
Question 6: However, there are certain instances where people who don’t always like labels can also become resistant to a movement. Since your answer was very nuanced with respect to people not identifying themselves as feminist, but what about the people who believe in all principles of gender equality and all principles of feminism but at the same time counter it because they do not want to be labelled as feminist? How does one get better engagement with them or we should probably leave them with their opinions?
Prof. Ballakrishnen: This is a question I wrestle with a lot and I don’t know if I have the answers, or even if there are certain specific answers to have. The entire preface to my book engages with this idea of identity misalignment, and at UCI now I teach a class called GUILT where we spend a lot of time thinking through naming a thing and actually living its purpose.
GUILT is an upper level seminar, and as a feminist theory and legal analysis class, you can imagine that it is often a small seminar. Its demographics are always revealing to me – one of the many ways in which I am constantly learning by engaging with my students. For example, a half of the students in this seminar are likely to be invested students who have known they wanted to be in my class from the minute they heard of it because of a certain subject or substantive or political interest, these are students who probably know my work, my research, my orientations, and who see this class as a way of engaging with the work at a very different level.
And then there is another half, who take the class for a range of other reasons – the time worked, they know me and want another class with me, they need an upper level writing class, you name the reason. And this part of the class approach the readings in very different ways, it is not about the labels, it is not about automatically finding community with the writing. And how these two factions interact is truly revealing for generative engagement in the classroom.
For example, this past Spring, one of my students, a determined moderate who certainly was not in faction 1 above, asked me why Sarah Palin was not a feminist? So, the faction that went up in vocal arms about defending her ineligibility for the term, was met with a sort of blasé reaction by the student who persisted with the definitional challenges and the limitations of movements. So the questions become not just who is or is not a specific thing, but also what that inclusion and exclusion means for the terms themselves.
Question 7: How are we engaging with these groups, if they are rejecting the idea of feminism and they are the people against whom you have to fight to counter the narrative?
Prof. Ballakrishnen: I think that at least to some extent, these are imaginary fights and narratives because they can be rooted in false dichotomies. For me feminism is in practice, it is in what I do every single day, what do I do in my life, what do I do with interactions with people in it.
I am more interested in thinking about feminist practice as an embodied everyday political act. It is about what I teach in the classroom, who do I advise, what I do when I advise them, who I cite in my research, whose voices I amplify, whose conversations I disrupt. It may not look like your feminism or activism, but it does not need to, for it to be meaningful and authentic in some ways to me.
Also, I have come to terms with the very real idea that our positions and placements along these narratives change with time and experience. My own politics have moved along with my relationship to the gender binary, and now is much more queer aligned than representation seeking. But this does not negate who I was or how I approached these investments twenty years ago. Recognizing that it is a process has been liberating for me. As has this acceptance that the reassessment of politics at different points in time is much more important and impressive than saying that, “I picked X in the first year of college and therefore I am an X”. So, to go back to an initial point, categories, both can afford you naming privileges but they also restrict you and I think it is worthwhile to spend some time being critical about how they restrict you and when they work for you and when they just don’t.
Question 8: What should be the changes in pedagogy while teaching subjects related to sex and gender? Is the current pedagogy enough and is it actually capable of equipping the future lawyers to work towards social equality under law? What kind of pedagogical innovations and interventions you make or see as important to make?
Prof. Ballakrishnen: Again, there are no quick fix or simple solutions. But I imagine that there are a couple of different ways to think about it.
One way is to ask yourself if you should you have more classes that are critical, that are gender focussed, or that who think through these topics differently, and yes, of course, surely! But I am not convinced that it is the only or even the most effective solution. The problem with more expansive, but still selective array of critical classes is that it self selects a certain kind of student and then leaves out a range of students for whom this broad engagement, especially if they resist it, could have value.
On the other hand, making classes that are gender focused compulsory – although I would argue all classes are inherently gender/class/caste circumscribed, so even without a “focus” you can introduce them with these alignments – introduces other problems. For example, students may feel that they have to reject it because they are tired of a hyper liberal agenda being pushed against them. If they think a professor is dedicated to a specific ideological approach, they might have pre conceived notions that alienates their experience. Again, this goes back to pedagogical choices and the risks of various approaches, which are inevitable.
I think the more critical call, in my opinion, for schools, and therefore, students, is to include ways of thinking about these issues, as I mention above, in everyday pedagogy. I am much more interested in the discussions that weave doctrinal subjects as extensions of these debates rather than only having specialist gender classes.
This is not to say I do not appreciate the luxury of teaching these classes or the advanced discussion we are capable of having in these spaces. Instead, it is the acknowledgment of reach that feels more pertinent when gender/caste/class and other identity categories and histories mark the discussion of subjects like constitutional, criminal, and labour laws.
In the same way, thinking about inequality while teaching corporate law could do such different work than a gender seminar, in a sense, because then students who would have otherwise not thought about these logics will now be necessarily shaped by them as they approach broader subjects and leanings. Overall, and this is something I stress constantly to my 1Ls, the goal for me is not that the students take more social justice jobs per se, but that they bring a critical and intersectional lens to inhabiting whatever jobs they do. That feels like a sustainable, real movement.
Question 9: How important do you feel is it to teach gendered meaning of legislations? For example, the definition of “reasonable person”?
Prof. Ballakrishnen: I think liberal posturing is often an easy out in these settings. Although it is important for us to challenge the meaning of a ‘reasonable man’, that cannot be just a rhetorical change by changing man to human or woman.
I think part of the call here is to make the structural change, or a informed ideological change that teaches students to consider the actual category of analysis to be more gender-neutral. Of course, language still matters, so if both structure and rhetoric change, that would not be posturing, that would be an ideal scenario, because you are signalling that you care about such things but you are also in a life when such things are cared for, specifically.
Perhaps on a spectrum of changing nothing and just changing the names, there is some usefulness to paying attention to nomenclature because it then shows that you have started to think about problematic categories but I am much more concerned about the problems with that “tokenistic gesture” because it seems to suggest that you care about a process without needing to actually do the work to unpack that process.
At the same time, there can be power in posturing also. And this depends on who is using the language and what they are using it for. If you are using terms as tools to teach students new ways to critically unpack the inherent patriarchal “neutrality” – to go back to where we started – nature of law, then that is or can be a great service to legal education. But it is all informed by context.