4: Why Experience Matters: Legal Pedagogy, Positionality, and the Human Rights Curriculum

Legal pedagogy can be distinguished from other academic fields in which critical theory and deconstruction can serve as ends in themselves. Legal discourse operates on both a practical and ontological level, so that a total decentering of legal norms would void the field of law itself. As both a normative and descriptive enterprise, the law ultimately requires a fixed set of rules for adjudicating legal issues. Legal reasoning often defines as universal and objective the specific and contextualized structures and processes of lawmaking. Because legal discourse often masks the biases, contradictions, and marginalized experiences that legal positivism overlooks, it produces a new form of knowledge that appears to be derived from common understandings that operate within an impartial procedural sphere. However, claims of universality are particularly problematic in the context of human rights law because marginalized voices can then be disregarded. This chapter sets out to critically analyze current methodologies employed in legal pedagogy, particularly in the human rights context, and advances solutions for ineffective approaches.