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Monthly Archives: March 2015

St Bede & the Law Student (and my grumpy father)

My late father hated lawyers. Oh boy, did he ever. He despised their necessity. He despised their privilege and pretensions (as he saw it), he despised the system they represented, and he despised the access lawyers had to the wheels of the legal system that he himself was prevented from having. As an entrepreneur himself (not a very successful one) he saw lawyers as leeches of knowledge and money. He rejected formal education by the age of 14 and eventually taught himself Australian tax law and got made bankrupt a few times. He racked up many many thousands of dollars in lawyers’ bills and fines that probably remain unpaid to this day. He was the kind of guy who would read a text on Māori land law for fun, and then toss it aside with a deprecating ‘bloody Maories’ thrown in for good measure. Interesting and infuriating bloke. Kia ora Dad. I have been thinking about your love-hate relationship with the legal system and all it stood for in the wake of two events. One of those events was the Happening labelled in my head as The St Bede’s Debacle. The second event was a visit by a young student to me at my job as a law lecturer. These three thought streams have been teaching me a somewhat fractured lesson about entitlement.

The St Bede’s Debacle was a moment made for public consumption, a private (well, state-integrated) school, elite college sport, boys behaving stupidly and illegally, parents off to the High Court to spend thousands of dollars to protect their ill-behaved progeny from the natural consequences of their actions. Righteous indignations lit up the phones across the land and thickened the atmosphere around water-coolers.  It does irk most New Zealanders (including me), it seems, when people are seen to be treated more gently because of their connections, or their wealth, or (in the eyes of some at least)  ethnicity. (I recently blogged on inherited privilege in NZ here, if you’re interested). The mere idea of privilege gets the blood boiling, and that is good at one level. It shows that the idea of an egalitarian New Zealand is alive and well. I’m glad about that. I’m not sure that New Zealanders are as exercised about under-privilege but that’s a korero for another day. But actually I’m a little more interested in the idea of entitlement. Privilege is something that arises out of a set of circumstances usually not within the direct control of the person who has the privilege. The children of rich parents can no more help their apparent status than can the children of beneficiaries.  Entitlement however, is slightly different as it speaks not so much of an objective set of facts but of a set of attitudes or deeply held beliefs accompanying a given circumstance. Entitlement can occur across socio-economic boundaries. The prisons, for example, are full of people who believed they were entitled to things or activities they were not. Sometimes this is described as ‘psychological entitlement:’

We conceptualize psychological entitlement as a stable and pervasive sense that one deserves more and is entitled to more than others. This sense of entitlement will also be reflected in desired or actual behaviors. Our concept of psychological entitlement is intrapsychically pervasive or global; it does not necessarily refer to entitlement that results from a specific situation (e.g., “I am entitled to social security because I paid into the system,” or “I deserve an ‘A’ because I performed well in class”). Rather, psychological entitlement is a sense of entitlement that is experienced across situations.

As a counterpoint to that definition, I quite like one of Jack White’s songs pithily entitled, well, ‘Entitlement’: I especially like the last verse of this particular song,

guess nobody on earth is entitled Not mothers, not children, not kings Not a one single person on God’s golden shore Is entitled to one single thing We don’t deserve a single damn thing

(for lyrics see here)

Many have said that the parents’ decision to challenge St Bede’s’s decision to punish their boys’ breaking airport regulations by hooning around on the baggage carousel stunk of this kind of psychological entitlement. Other parents without deep pockets whose children might be excluded from grand sporting events for similar hi-jinx won’t be able to access the courts in the same way. And there is no doubt that the parents in the St Bede’s Debacle believed in an absolute entitlement to act as they did.  But others took a more literal view…the right to go to court is available to all. Why should these parents be pilloried just because others might not be able to access such a right?  Along these lines Brendan Telfer noted on Nine-to-Noon this week, the parents merely invoked their right in the New Zealand legal system to have their case heard before a judge, and good on them, he reckoned. OK. Now for the next event. A young man came to see me around about the same time as The St Bede’s Debacle was hitting the headlines.  He was troubled about how difficult he was finding first year law, several weeks into the course. Actually, the conversation I had with him echoes several I have had over my 9 years as a law lecturer.This kind of conversation goes something like this (shortened for dramatic effect…):

‘I’m having trouble with my lectures. I just don’t get it.’

‘OK. What are you finding so hard?’

‘I don’t understand what the lecturer is saying. I write everything she says down. I read it, again and again, I highlight the words, and I write it out again and I still don’t get it.’

‘OK. Show me some of your notes.  Right. Do you know what this is [pointing to ‘Cabinet Minister’]?

‘Not sure’.

‘What about this [pointing to the word ‘statute’]?

‘Not sure about that either.’

‘How about this [pointing to the word ‘Parliament’]?’

‘I know where it is, I just don’t know what it DOES.’

I hasten to add this student was a B student in his other subjects; he’s in his mid-20s, studying to better himself: he works hard. Lots of family commitments. But the ideas behind words like ‘statute’, ‘Parliament’ and ‘Cabinet Minister’, for the moment at least, defeat him: he has never, in his life, come across them before in a way that enabled him to understand them. Perhaps he didn’t come from a family where politics or voting, or even the news, were ever discussed, where Western ‘law’ was ever really thought of as something beyond ‘what the police do’. He’s Māori, but his lack of exposure to the most basic ideas of Western ‘law’ don’t stem just from ethnicity, as I have also had these conversations with Pākehā, although far more rarely. He merely falls on the difficult side of social and educational history: like many other Māori in tertiary study (including me and my brothers) he is the first of his family to study at Uni, the first to study law. He has no template to follow, and for whatever reason school did not prepare him by introducing him to the ideas underpinning our institutional structure. He has enormous expectations upon him, as all such ‘first footers’ do, to improve things for his family, and for those that come after him: to create A Pathway.  He expressed to me his hope to use his legal studies to help his whānau, and perhaps his hapū. Indeed have met many law students who choose law as an avenue to achieving social justice. Many of ‘the best’ of those also go on to corporate careers. The thing that strikes me is the contrast between the St Bede’s situation and the situation faced by this young man.  In the former we see the natural acceptance of an entitlement; an ownership of The Law as an instrument to achieve justice, regardless of whether we agree with that justice or not. Those families had familiarity with the idea of due process, with filing papers, with contesting positions. The courtroom itself might be unfamiliar, but it will not be alien, because echoes of such a room have already played in the mind’s eye; a room in which one has natural standing. There is right, as well as rightness in the process and the outcome. Law is normal, formal, probably a bit absurd and creaky, but part of the natural order of things. Their children may well become the kinds of law students Verity Johnson was talking about here.

Most of the people squawking about the actions of the parents would themselves have some degree of background familiarity with how the system works. I see the easy familiarity with many, many law students in my job, and sometimes I envy them that certainty of ownership; of belonging. On the other hand my young law student believes that his only ticket into the world of law is by dint of the sweat of his brow, as if hard work is all that is ever required; that it will somehow make overcome the enormous conceptual lack he currently faces. I hope it does. I suspect that should that hard work pay off and he make it through the law degree, he still will not emerge at the end of those four or five years secure in any belief that law is his world, that he can move in with any degree of significant familiarity. Right now he has absolutely no confidence that this will ever be his world or his tool; how can he? He cannot even describe it yet. Law in all its manifestations is alien and abnormal; an animal to study behind safety glass; an exotic.

I recently attended a workshop looking at ways in which young Maori could be encouraged to use web resources to learn their rights in law, and to become more confident in their understanding of the law. Three of the young people who attended had been ‘on bracelet’ (electronic bail). Like my student they had almost exactly the same lack of knowledge and, crucially, lack of legal concepts they could easily access in their language. When questioned about the role of (Western) law in their lives (outside the police context) they found it difficult, without prompting to identify areas in which law operates. Such is their experience and exposure to the law. What you see, really is what you ‘get’.

As I was writing this post I remembered a paper I had written 13 years ago about the confidence levels exhibited by surveyed Māori over the age of 30 about the Treaty of Waitangi and the Treaty claims settlement process. I surveyed 121 individual Māori about their confidence in their own understanding of both things. The clear result was that the majority of Maori respondents over the age of thirty had little or no confidence in their understanding the Treaty claims process or mandating. Tertiary education levels had a small effect on these confidence levels, but by far the most important determinant was whether those individuals had regular contact with their marae of at least once a year. If they did they were far more likely to express confidence not only in their knowledge of the Treaty of Waitangi but also in their understanding of processes such as mandating, which form critical parts of the settlement process. On reflection this finding (limited though it may be) is unsurprising, these participants in contact with their marae were familiar with the language, form and content of the Treaty of Waitangi and of settlement. They had been exposed to the concepts of settlement. They had a vocabulary which they could recognise and use. Once could almost say that in this context at least, and for that subset of people, the New Zealand legal system, or apart of it, at least, was normal. Were the same study run today there might be even higher levels of confidence demonstrated after another 13 years of settlement process. So perhaps this study might give some hope that entitlement can be learned, or grown somehow.

Maybe the problem was not that the St Bede’s parents used the courts, and exercised their entitlement. it’s more that there are a lot of people out there who lack sufficient connection to our legal system to even understand they have any kind of entitlement to it, or ownership of it, at all. I wonder what Dad would say about that. Hmm. Would probably involve swearing…

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