McGill Law Journal Revue de droit de McGill
OF JUSTICE AND ITS SCALES: LOOKING BACK ON
(ALMOST) FORTY YEARS OF ROD MACDONALDS
SCHOLARSHIP ON ACCESS TO JUSTICE
Alana Klein*
Introduction
Many of you in the room today are juristslaw 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 audiences essays were diverse, and of course you may or may
not remember yours. But I would bet that a great majority of you ex-
pressed something like this: This world is a messed up place. Id like to
make it better. SomehowI am not quite sure howI 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 doesnt really seem to be
touching on societys 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 Macdonalds
work offers us intellectual, legal, and, importantly, personal tools to cope
with that feeling in our collective struggle toward justice.
But first, Id like to beg your indulgenceand 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
* Alana Klein, Assistant Professor, Faculty of Law, McGill University. I would like to
thank Thomas Gagnon-van Leeuwen for his research assistance, his creative ideas, the
clarity of his vision, and the depth of his engagement.
Alana Klein 2014
Citation: (2014) 59:3 McGill LJ 761 Rfrence : (2014) 59 : 3 RD McGill 761
762 (2014) 59:3 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
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 justicedivine,
religious justice. Those of you who know Rod Macdonalds work know that
it is very much earthbound. Yet this poem touches on the themes of Rods
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 and in its notion that the laypersonno
master of the tradeso determined against the automatonthe dis-
connected, unthinking imposition of normswould be active in replacing
the false justice with an earthly one that is meaningful on the ground.4
1 AM Klein, A Psalm of Justice, and Its Scales in Complete Poems Part 2: Original Po-
ems, 19371955 and Poetry Translations, ed by Zailig Pollock (Toronto: University of
Toronto Press, 1990) 516.
2 See e.g. Roderick A Macdonald, Justice is a Noun, but Access isnt a Verb in Expand-
ing Horizons: Rethinking Access to Justice in Canada: Proceedings of a National Sym-
posium (Ottawa: Department of Justice of Canada, 2001) 45.
3 See e.g. Roderick Alexander Macdonald, Lessons of Everyday Law (Montreal: McGill-
Queens University Press for the Law Commission of Canada and the School of Policy
Studies, Queens University, 2002).
4 See e.g. Roderick A Macdonald, Whose Access? Which Justice?, Book Review of Access
to Civil Justice, ed by Allan C Hutchinson, (1992) 7:1 CJLS 175.
OF JUSTICE AND ITS SCALES 763
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 ac-
cess 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, Rods own work helps me out here. Like many powerful
ideas, his theories about access to justice can be expressed in so many dif-
ferent ways: concrete, conceptual, simple, complex. In fact, Rod purposely
frames his own ideas at many different levels of abstraction.5 He doesnt
do this just to help me as a student of his work; rather, Rod Macdonald
writes for different audiencestheorists, policymakers, lawyers, search-
ing studentsbecause the very substance of his message requires it to be
useful in all the possible ways and to the broadest of audiences.
Rod Macdonalds work on access to justice started from the same frus-
trated place in which I left you at the beginning of this talk: the recogni-
tion that our law is not relevant or meaningful to most peoples struggles
for justice in our society. So he began, as many of us do, by working on
ways to make sure that its not just those who hold the upper hand al-
ready who are able to know and rely on what law provides.
Indeed, in the 1970s, Professor Macdonalds work on access to justice
was mainly in the area of public legal education, through what was called
the Community Law Program at Windsors 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 workmans compensation; another, what hap-
pens 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 didnt. 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 de-
tailed 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 alterna-
5 See e.g. Seana C McGuire & Roderick A Macdonald, Tales of Wows and Woes from the
Masters and the Muddled: Navigating Small Claims Court Narratives (1998) 16 Wind-
sor YB Access Just 48 at 84 [McGuire & Macdonald, Wows and Woes].
6 RA Macdonald, The Community Law Program at Windsor: An Interim Report (1976)
10 Law Society of Upper Canada Gazette 344; RA Macdonald, The Community Law
Caravan (1978) 12 Law Society of Upper Canada Gazette 78.
764 (2014) 59:3 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
tive dispute resolution; and what was the farthest frontier of access to jus-
tice at the time, preventive law. This included legal information hot-
lines, plain language legislation and contracts, and the increased use of
obligatory standard form contracts (like the one you were supposed to
have used for your lease when you were a student here at McGill), all
measures designed to prevent legal conflicts from arising in the first
place.7
Around the same time, through the 1980s and 1990s, Professor Mac-
donald began to develop the key insight that resonates though the rest of
his work on access to justice. He has expressed this insight as a criticism
of the work he himself did chairing the Task Force on Access to Civil Jus-
tice,8 but in fact he had been developing the theory all along. It goes like
this: We started off worrying about access to justice because we were wor-
ried about the uneven distribution of justice in our society. But our pro-
jects to remedy this problem are all focused around giving more access to
official law. If we, as jurists and citizens, focus only on giving folks more
knowledge about and more access to official law, what we are doing isnt
really providing access to justice at all. Justice has become conflated with
law, and law with state law.9
That slippagefrom justice to official lawdoesnt come without
costs. To paraphrase Professor Macdonald, instead of teaching judges and
lawyers about what the public needs, we co-opt the public into thinking
that they cant get justice without judges, lawyers, and official law. More-
over, this focus on equal access to official law obscures the fundamental
question whether our law is just in the first place.10 And, he noted, if you
think our official institutions for vindicating legal rightsthe courts, for
exampleare out of reach for most people, well, the places where this of-
ficial law gets madelegislaturesare even more so, to say nothing of the
7 Rapport du groupe de travail sur laccessibilit la justice : Jalons pour une plus grande
accessibilit la justice (Quebec City: Ministre de la justice du Qubec, 1991) at 487
503.
8 Roderick A Macdonald, Access to Justice and Law Reform #2 (2001) 19 Windsor YB
Access Just 317 at 31920 [Macdonald, Access to Justice #2].
9 Roderick A Macdonald, Access to Justice and Law Reform (1990) 10 Windsor YB Ac-
cess Just 287 at 304 [Macdonald, Access to Justice #1]. See also Roderick A Macdon-
ald, Access to Justice in Canada Today: Scope, Scale and Ambitions in Julia Bass, WA
Bogart & Frederick H Zemans, eds, Access to Justice for a New Century: The Way For-
ward (Toronto: The Law Society of Upper Canada, 2005) 19 at 102, 10407 [Macdonald,
Scope, Scale and Ambitions]. In these passages, Macdonald calls on us to expand our
field of vision (ibid at 102) to get at the root causes of access to justice.
10 Ibid at 97.
OF JUSTICE AND ITS SCALES 765
public officials who may not always do their work fairly and as they are
supposed to.11
In fact, by conflating access to law and access to justice, we are assum-
ing, without verifying, that the public has some desperate desire for ac-
cess to the system, however imperfect it may be.12 And at the same time,
as we press only for justice according to official law, we driv[e] a wedge
between ordinary individuals sense of injustice and the abstract justice of
official law.13
Based on this key set of insights, Professor Macdonald, in his work on
access to justice, kept busy with two main projects. First, he spent much
of his time and efforts doing and encouraging empirical research on what
legal institutions were really doing for many Canadians. For example, he
and Seana McGuire, one of his doctoral students, examined the de-
mographics and satisfaction of the users of small claims court.14 Of course,
small claims court is lauded as an access to justice initiative for its simpli-
fied, inexpensive process and exclusion of costly legal representation.
Macdonald and McGuire asked two basic questions: Who was using small
claims court? And were they satisfied?
What Macdonald and McGuire found about the demographic makeup
of plaintiffs was fascinating. Nearly twice as many claimants were male
as were female.15 They were more likely to be educated and employed.16
They were more likely to be professionals and business people claiming
debts for goods or services than employees or consumers trying to use the
court to police businesses that might … exploit them.17 Ironically, he
found, one sixth of small claims court plaintiffs were lawyers suing their
clients for nonpayment.18 In fact, aside from the absence of big corpora-
tions, there was little difference between the socio-demographic profiles of
11 Macdonald, Access to Justice #2, supra note 8 at 319.
12 Macdonald, Access to Justice #1, supra note 9 at 302.
13 Ibid at 336.
14 Seana C McGuire & Roderick A Macdonald, Judicial Scripts in the Dramaturgy of the
Small Claims Court (1996) 11:1 CJLS 63; Seana C McGuire & Roderick A Macdonald,
Small Claims Courts Cant (1997) 34:3 Osgoode Hall LJ 509; McGuire & Macdonald,
Wows and Woes, supra note 5.
15 McGuire & Macdonald, Small Claims Courts Cant, supra note 14 at 521.
16 Ibid at 52324.
17 McGuire & Macdonald, Wows and Woes, supra note 5 at 86. See McGuire & Macdon-
ald, Small Claims Courts Cant, supra note 14 at 546.
18 Ibid at 549.
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plaintiffs in small claims court and in civil courts.19 So much for even the
access side of access to justice!
More interesting still was the information gathered on satisfaction.
Macdonald and McGuire found that the repeat players, the white, the
male, the educated ones, were more likely to win and were more likely to
be satisfied independently of winning their cases.20 And, unsurprisingly
perhaps, they found that the people most likely to be dissatisfied with
their experience in small claims courteven independently of winning or
losingwere the ones who were least familiar with the process, the few
disenfranchised who actually make it to small claims court.21
The authors noted that different lessons could be drawn from this
work. We could develop a sort of sociological critique of small claims court
as yet another instance of professionals and business-minded masters
fashioning and using institutions to their advantageas a debt-collection
agency.22 We could look at the precipitating causes of the dissatisfaction
and underuse by the disenfranchised, and we could fix them. Here, some
problems included things like delay, opening hours, and difficulty with en-
forcement of judgments.23
But merely adjusting things like cost, delay, and opening hours would
in fact amount to what Macdonald has called treating the side effects of
the previously prescribed remedy.24 This warrants further explanation.
You might have noticed, Macdonald has urged, that certain groups are
more vulnerable to lack of access to justice than others. These are the
same groups of people with low voter turnouts; who tend not to be includ-
ed in the wealth-generating aspects of the economy; who are not involved
in public legal consultation; who are underrepresented in the health care
system.25 This means that solutions for lack of access to justice need to be
addressed not only at the level of formal institutions of justice (for that is
just one place of systematic exclusion) but at all the social, economic, and
psychological levels that prevent access to all our state institutions. In
other words, in addressing the disease of lack of access to justice, we
must look at all the factors that lead to that disease, rather than simply
19 Ibid at 548.
20 McGuire & Macdonald, Wows and Woes, supra note 5 at 5764.
21 Ibid at 7782.
22 Ibid at 86.
23 Ibid at 8485.
24 McGuire & Macdonald, Small Claims Courts Cant, supra note 14 at 549.
25 See Macdonald, Scope, Scale and Ambitions, supra note 9 at 10607; Roderick A Mac-
donald, Community Based Socio-Legal Services (2007) 2:2 Focus Justice 31.
OF JUSTICE AND ITS SCALES 767
tweaking the cure we have historically relied on to address the problem of
injustice.
In fact, returning for a moment to the small claims court studies, the
most dissatisfied plaintiffs were upset about things that went much deep-
er than costs, delay, and the like. Certainly those were problems. But
their more fundamental complaints related to matters including not hav-
ing an adequate opportunity to express their views, and being patronized
and demeaned by clerks, judges, mediators.26 They bemoaned that the
system was impersonal, bureaucratic, narrow.27 They expressed personal
embarrassment and shame at having gotten into a mess and at not being
able to fully understand what was being said to them once they brought it
to court.28
Among the stickiest stories from that project was one about a thirty-
eight-year-old single nurse who came to court claiming that she paid five
hundred dollars for a cat that was worth fifty. In Macdonalds words, She
came to court well prepared with documents, photographs, books and the
cat.29 In her mind, this was a case about predatory breeders overcharging
naive customers. The cat was evidence. Ill omit her full report, but essen-
tially, as soon as she saw the judge look at the cat, she knew her goose
was cooked. Effectively, she was the crazy cat lady. And she did indeed
lose her case. She is hardly among societys most marginalized, who are
unlikely to turn up in small claims court at all.
Addressing this kind of dissatisfaction wont come from adjusting the
rules of small claims court, or from explaining to people in advance that
they shouldnt bring cats into the courtroom. The problem is the social,
economic, and political structures of society that keep judges and those
who live far from official law from being able to speak meaningfully to one
another.
But, Macdonald says, this is no cause for despair: to characterize
those missing plaintiffs as being denied access to justice may be prema-
ture. We dont know why the young, the poor, the consumers, and the non-
professionals are not using these kinds of state institutions. It could be
because they dont think their most pressing problems are legal ones, or
because our institutions dont recognize their pressing problems as legal
ones. Or maybe some peoples ideas of what justice is differ greatly from
26 McGuire & Macdonald, Wows and Woes, supra note 5 at 86.
27 Ibid at 80.
28 Ibid at 7778.
29 Ibid at 78.
768 (2014) 59:3 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
the ideas of lawyers and judgesand those people are seeking their jus-
tice elsewhere.30
And so, Macdonald developed a theory that he called critical legal plu-
ralism. It is the idea that official law, as a top-down projection of authori-
ty, often resonates with few, addresses few, and is not sufficiently orient-
ed to building a just social order.31
When we look at plaintiffs in the small claims court as simply plain-
tiffs or litigants, we fail to recognize that they are in fact actors in differ-
ent institutions all the timesometimes they are plaintiffs in small
claims court; but sometimes they are members of a teachers union, mem-
bers of a family, members of a religious community. They seek justice in
all of these places, and build law in all of these places. The reason why
most people dont benefit from the legal system as we might have hoped or
imagined comes from the official legal systems inability or refusal … to
make space for and reflect the living law of everyday human activity.32
Our job, if we are measuring access to justice, is to ensure that we
learn as much as we can about these different sites where people strive to
produce justice; then, if we need more justice, we can learn about the jus-
tice people actually seek in order to make our official system more sensi-
tive and responsive.33 And so Professor Macdonald urged a new conception
of law: one that is not just a state invention, but one that people, in all
their complexity, participate in building all the time in different places. In
other words, our access-to-justice task is not to monopolize civil disputing
within state institutions and then frame it according to some abstract no-
tion of justice. Rather, its to facilitate the diversity of ways by which
people live, negotiate, manipulate, and debate the parameters of their
normative relations with each other.34
Thus, its not that small claims courts (as just one example of official
law) are bad, necessarily, though on some interpretations they may be.
Its more that in terms of getting people access to justice, rather than law,
they are often beside the point. We might need to spend our time and
money getting to know peoples needs and seeing how they can be under-
stood and met in a variety of settings.
30 McGuire & Macdonald, Small Claims Courts Cant, supra note 14 at 550.
31 For more thorough expositions, see e.g. Martha-Marie Kleinhans & Roderick A Mac-
donald, What is a Critical Legal Pluralism? (1997) 12:2 CJLS 25; Roderick A Macdon-
ald, Recommissioning Law Reform (1997) 35:4 Alta L Rev 831.
32 Macdonald, Access to Justice #2, supra note 8 at 319.
33 Roderick A Macdonald, Theses on Access to Justice (1992) 7:2 CJLS 23 at 44.
34 McGuire & Macdonald, Small Claims Courts Cant, supra note 14 at 551.
OF JUSTICE AND ITS SCALES 769
It is important to note that Professor Macdonalds theory of critical le-
gal pluralism permeates all of the work he does. Rod Macdonalds work on
secured transactions, for example, draws on and builds the very same
theoretical framework.35 I wont go into detail herecertainly the points
about access to justice are challenging enoughbut I just felt that I
should let you know that the principles are the same: ask, first, what we
are looking to achieve; second, recognize that there are multiple ways to
achieve it; third, recognize that there are good reasons why different
communities will want to achieve those ends in different ways; and
fourth, dont ever lose sight of the public order issues at play.
In the short time that I have with you, I would like to conclude with a
discussion about where this leaves us, as seekers of justice, particularly
for those who are most marginalized from it. I will begin by summarizing
the lesson. In the spirit of getting those lessons out there, I am annotating
them with hashtags. The hope is that, going forward, you can recognize
these ideas, see how they fit in with your work and what you do, and be
more conscious of how these ideas are reflected in our discussions
throughout the day and beyond.
1. #justicefirst: In the work that we all do, every day, keep the ulti-
mate focus on justice; dont think that by providing people with ac-
cess to law, you are providing justice.
2. #beyondofficiallaw: To resolve issues of access to justice, we must
go beyond the official legal system, beyond rights conferred by the
state, to see that there are multiple places where justice is found
or denied.
3. #everydaylaw: We must look for, and be able to understand, the
ideas of justice found and created in everyday life and the law of
everyday social interactions. This is where human conflict takes
place and is constructed, well before it is transformed into a legal
problem.
4. #diversity: Everyday law is as diverse as the multiple communi-
ties to which we all belong. On the supply side of access to justice,
this means that those who are the most marginalized have the
greatest access to justice challenges. On the demand side, it is in-
creasingly clear that there is no one-size-fits-all solution to access
to justice. Strategies must be multidimensional and involve
piecemeal, local initiatives that are able to take into account the
everyday law of the most marginalized.
35 See generally Roderick A Macdonald, Article 9 Norm Entrepreneurship (2006) 43:2
Can Bus LJ 240.
770 (2014) 59:3 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
5. #disses: Yet, if we dont adapt to that diversity, if we continue to
promote a law structured around the needs and expectations of a
privileged few, the excluded ones are disempowered, disengaged,
disenfranchised, disrespected.36
6. #empower: Moreover, unless we address the root causes of that
disempowermentthe social, the economic, the politicalwe will
never be able to create space within official law for those diverse
and marginalized groups. Achieving true access to justice requires
changing the distribution of social power so that citizens can par-
ticipate in lawmaking and administration, whether in official in-
stitutions, non-state institutions, or, ideally, both. It is only
through that realignment of power that we can hope for a law that
mirrors citizens own conceptions of justice.
7. #legaleducation: All this means that public legal education is a
double-edged sword.37 At its worst, it increases the reach of official
lawthe law from on highand increases citizens reliance on it.
At its best, however, it could make the official system more re-
sponsive and just, if it is about educating citizens and officials
about how to overcome exploitation and pathologies in everyday
human interactions.
8. #empiricalresearch: The good kind of legal education, for the rea-
sons we have set out, requires information about the needs of the
publicespecially those groups most excluded from access to jus-
tice. Too often, our ideas about access to justice have relied on un-
proven assumptionslike the notion that small claims court is re-
sponsive to the needs of everyone, not just white men. Or this idea
that the public is clamoring for access to the system, however im-
perfect it may be.38 Or even the idea that demographic changes in
representativeness of the judiciary will overcome the disempow-
erment of marginalized groups.
Where do these general lessons about reconceiving access to justice
leave the community legal clinic? The community legal clinic is, in many
ways, very well placed to contribute to this much more ambitious concep-
tion of access to justice. Not necessarily alone, of course. Changing the
very distribution of social power isnt a small task. But community legal
clinics have the capacity to seek out understandings of the everyday law
of the most marginalized groups they serve; to better understand the root
36 Roderick A Macdonald, The Fridge-Door Statute (2001) 47:1 McGill LJ 11 at 15.
37 Macdonald, Scope, Scale and Ambitions, supra note 9 at 97.
38 Macdonald, Access to Justice #1, supra note 9 at 302.
OF JUSTICE AND ITS SCALES 771
causes of the pathologies that end up getting framed as legal problems; to
be motivated to seek the changes in substantive law; to point out when
governments are doing more harm than good; and to enhance their cli-
ents access to institutions where law is made and administered. Yes, this
is a challenge. It requires clinics to divert scarce time and energy from
putting out fires to seeking out and responding to the sources of those
fires. In truth, clinics are doing that work anyway, and have always been.
Let that work, too, be recognized as the access to justice project it so clear-
ly is.
