Preface: Reflections on Redeeming Justice
During the heart of the pandemic, at a time when citizens were being brutalized by police for protesting the murder of George Floyd, a Black man who was killed while in police custody,
an unconventional idea for a law review article took shape—an idea that would culminate in the liberation of one of my coauthors and, in some ways, mine too.
The pandemic hindered a project undertaken by a group of men sentenced to a life without parole (LWOP). That project aimed to produce greater recognition of a right to redemption, a concept collectively conceived of as a human right by members of the group, who called themselves the Right to Redemption (R2R) Committee.
With the Committee unable to meet or speak due to a prolonged prison lockdown, it became imperative to find another way to carry the work forward. Upon learning that human rights jurisprudence echoed the legal framework first articulated by these men on the inside, I proposed writing a law review article with two leaders of the group, Terrell “Rell” Carter and Kempis “Ghani” Songster. Centering the group’s Right to Redemption analytical framework as well as Rell’s and Ghani’s lived experiences, the article, I explained, would contend that the capacity for change is an innate human characteristic, fundamentally intertwined with human dignity.
Together, we would argue that this aspect of the human condition should be reflected in the law.
And so it was that Redeeming Justice was born. Through countless 2000-character messages via the Pennsylvania Department of Corrections messaging portal and fifteen-minute monitored calls made during the thirty-minute increments that my incarcerated coauthor Rell was permitted to be outside his cell, the article came to life.
That article would spur what is now becoming an emergent movement in the legal academy—a genre of legal scholarship called Participatory Law Scholarship or PLS. PLS is legal scholarship written in collaboration with authors like Rell and Ghani who have no formal training in the law but rather expertise in its function and dysfunction through lived experience. This current piece, written from my perspective as an academic partner in PLS, is the first in a series that will map the contours and contributions of PLS to the legal academy, the law, and society more generally. But before we get there, it feels important to take a moment to reflect on what came before—in other words, what partnering to create Redeeming Justice meant for and revealed to me.
As I step back from Redeeming Justice and reflect on my own motivations for coauthoring the piece, I must acknowledge my own discomfort in doing so. While Redeeming Justice was foregrounded in the lived experiences of my coauthors, Ghani and Rell, my voice was notably absent. Ghani pushed this issue at one point in a podcast interview we did together. He wanted to know what motivated me, both generally and specifically in relation to this article. I remember dodging the question. Part of the reason was I never had to justify my scholarly choices based on my moral commitments before.
Since grade school, I had been taught to remove the “I” from my writing—to write myself out of my writing, essentially to erase myself. And as an academic, rigor is often marked by distance from the subject of study. So, we academics often strip ourselves from our work, as if we are not the ones forming and framing the ideas in the context of our own lived experience.
This project was different. Instead of being a ghost writer or pushing myself to be a distant observer of suffering, it gave me an opening to be closer to my work, to the reader, and to my own ideas. PLS involves not just bringing others to legal scholarship, but for the academic partners in PLS, bringing more of ourselves to legal scholarship.
But this scholarship is not just about self. It also involves another profoundly human element, one that is fundamental to the ethos and epistemology of Participatory Law Scholarship: camaraderie. Over the years, I have built partnerships with those who have been caught in the dragnet of the carceral state for decades, seemingly with very little opportunity to be treated as human beings or for emancipation no matter how they’ve changed. Because I know them as mentors, friends, and colleagues, I feel this injustice—and feel it deeply. Some legal scholars view this as a liability, but as I document in Part III of this Piece, I see it as a tremendous asset to my scholarship.
But you might be wondering, why scholarship? Why not instead cabin my work to legal reports and litigation, the traditional province of legal advocates? Primarily, it is because these modalities limit the possibilities of true transformation, not just of laws, but of the systems that create, enforce, and maintain them.
Legal advocacy in other forums can be limiting because you must frame your argument under existing laws and legal structures. It often does not allow dreaming. Without denying that there are some real constraints in the format and conventions of legal scholarship, one of the attributes of legal scholarship is that scholars are not required to fit their arguments into existing legal doctrine or structures. Legal scholars regularly reject doctrine as unjust and imagine new legal rules and realities that might not be immediately realizable given current real-world constraints. You can think big. And, at this moment, what is needed most is not a new law, a successful lawsuit, or even a hard-hitting report, but a profound rethinking of the understandings, narratives, purposes, and structures on which law is built. This is not the work of a well-crafted policy paper or litigation strategy, which are essentially reformist strategies—it is the work of boundary-pushing thinkers and theorists wherever they are found. As I will explain further below, it is my conviction that those most impacted by laws and legal structures are best positioned to reimagine them because they know those structures more intimately than most.
On the other hand, some might question the wisdom of investing the time and energy needed to write a lengthy law review article, essentially aimed at legal elites, when that time could be put to better use in building extralegal movements. At a webinar on Redeeming Justice organized by the Carr Center for Human Rights Policy at the Harvard Kennedy School, Professor Andrew Crespo raised this question. Noting that the article lifted up two strategies for change, the “community organizer’s strategy” and the “lawyer’s strategy,” which in his view are somewhat in tension with each other, he asked why Redeeming Justice centered lawyers, law, and judges, rather than focusing on organizing and building the power of the people in R2R.
It is certainly a fair question, given, as Crespo reminded us, the role lawyers have played in “kill[ing] off more groups by helping them than ever would have died if the lawyers had never showed up.”
But according to the organizer who shared these cautionary words, the lawyer “kills the leadership and power of the group” by taking momentum away from the group.
Lawyers “want to advocate for others and do not understand the goal of giving a people a sense of their own power.”
What distinguishes PLS, however, is that it does not center lawyers as problem-solvers. Rather, it shifts power to people who are not lawyers, establishing them as experts in their own legal realities. Moreover, instead of displacing grassroots organizers, PLS aims to push the boundaries of how society and the legal academy understand their interventions. In the spirit of what law professors Amna Akbar, Jocelyn Simonson, and Sameer Ashar suggest in Movement Law, PLS appreciates movements as sites of knowledge production and creativity.
It amplifies the making of legal meaning central to movement building but often less visible to the outside observer.
Indeed, people with lived experience confronting the daily realities of injustice and organizing the disenfranchised are often theorists, whose perspectives are sorely needed to reimagine broken legal structures.
Informed by this expertise, they, much like academically trained scholars, craft theories of change based on factual investigation and power analyses. This was certainly the case with the members of the R2R Committee. Critically reflecting on their circumstances as well as the narratives that informed them, the R2R members collectively constructed an alternative narrative to disrupt the status quo, a theory of change to match, and prescriptions about what solutions are needed. That is the work of theorists. And as Professor Seema Saifee suggests, this work does not begin and end with the work of the R2R Committee; rather their work is an example of a larger movement for decarceral solutions emanating from individuals who are incarcerated.
This knowledge production is happening organically in prisons across the United
States.
The authors of Subversive Legal Education: Reformist Steps to Abolitionist Visions adopt the term “organic jurists” to describe those who, like the members of the R2R Committee, are “legal scholars without traditional educational prerequisites.”
The authors derive this term from philosopher Antonio Gramsci’s concept of “organic intellectuals.”
While Gramsci believed that all people are intellectuals, organic intellectuals, according to Gramsci, are those leaders from nondominant groups who organize others to take transformative action to replace the dominant ideology and alter their own realities.
But the work of organic jurists like the members of the R2R Committee goes further than community legal education. They are also organic legal theorists, in that they generate knowledge and liberatory theory through critical reflection on their lived experience. For example, the R2R Committee did more than educate themselves about their rights; they theorized a new right—the right to redemption—that better addressed the cruelty of their specific condition of confinement and created a path to freedom. Their process was “organic” in the sense that their theorizing was derived from living material without interference from the artificial agents of academic assimilation, which can produce rather formulaic scholarship devoid of innovation and conviction.
To be clear, I am not arguing that the training and education obtained at academic institutions are inconsequential. To the contrary, PLS involves a partnership with academically trained legal scholars for two principal reasons. First, because it is part of our jobs as academics, we have the time, training, and resources to engage in deep research to develop further support for the episteme of organic jurists, by bolstering it with other empirical evidence, grounding it in legal doctrine, and connecting it with other theories and literature. The role of the legally trained academic can be as rudimentary as identifying supporting sources and putting citations into Bluebook format or as profound as collectively building knowledge with organic jurists, grounded in legal academics’ training in law and exposure to legal scholarship. In essence, PLS does not displace traditional doctrinal analysis but complements it and offers necessary context and perspective. Consequently, this collaboration can help both PLS partners to deepen their understanding of the changes needed to make the law more just and equitable.
Second, academics also have the privilege, platform, access, and connections needed to amplify the knowledge produced by organic jurists to new audiences, including judges, policymakers, and other legal scholars. This contribution to PLS can take the form of identifying venues for publication, organizing symposia, soliciting funding to compensate organic theorists for their contributions, and facilitating introductions to others who can also play a role in amplifying the episteme of organic jurists. Much like community lawyers, who envision marginalized communities as vital partners in problem-solving and achieving structural change and who use their legal training to advance communal goals, legal academic partners use their expertise in law and knowledge of the scholarly enterprise to amplify the analytical work of their non-academically trained partners.
As will be explored more fully in a second article, participatory law scholarship’s goal is not only to expose those in power to alternative ways of understanding the law and the social issues that it is meant to address, but also to make legal scholarship, and consequently law, more theoretically accessible to those who are not lawyers.
The law is hoarded by the powerful. The technicalities of the law make those who are not formally trained in law feel disconnected from the law and encourage apathy toward the law as a vehicle of social change. This mystification of the law inhibits organizing and leaves existing power structures intact. Legal scholarship aids and abets this disconnection from law because its identification of the problem and potential solutions can feel so detached from reality that it is rendered irrelevant to activists and practitioners. To counter this obfuscation of law, PLS aims to pull back the layers so that those for whom the law is most consequential can see themselves reflected in it and know that they are and can be a part of the making of legal meaning. PLS does this by ensuring that people who are formally educated in the law are not the only people who are able to contribute to legal scholarship and the development of legal theory. By validating alternative ways of knowing what the law is and what changes are needed for it to realize its full potential, PLS thus aims to democratize the law.
As Rell and I will explain further in our next article, by involving organic jurists in legal thinking, PLS has the potential to make the law more accessible to the broader public, thereby hopefully making them more inclined to participate in the making of legal meaning in scholarship and elsewhere.
Introduction
Taking inspiration from the experience of coauthoring Redeeming Justice, in this Piece, I outline the theory and practice of what we are calling Participatory Law Scholarship. PLS is legal scholarship written in collaboration with authors who have no formal training in the law but rather expertise in its function and dysfunction through lived experience. While scholars in other disciplines have embraced research resulting from collaborations between academics and non-academically trained community leaders, such participatory methods are rarely employed in legal scholarship. Lawyers and legal scholars often evoke stories of nonlawyers in their work but almost never share authorship with them.
For that reason, when we wrote Redeeming Justice, we were uncertain how it would be received, whether it would have any impact, or even if it would be published at all. Yet, perhaps due to an unusual combination of timing, readiness for novel approaches to entrenched legal problems, and the incredible ingenuity of my coauthors, Redeeming Justice has been not only accepted but embraced. It was published in the Northwestern Law Review and awarded the 2022 Law and Society Association (LSA) Article Prize for the best socio-legal article published in the past two years. Redeeming Justice also helped lay the groundwork for a complaint to the United Nations alleging that the United States is committing torture by condemning people to “death by incarceration” (DBI) through extreme sentences like life without parole—thereby putting into action a call for such an appeal made in the R2R Committee’s mission statement.
It also has been cited in several amicus briefs challenging LWOP sentences.
Most importantly, it contributed to the liberation of one of my coauthors when the Philadelphia District Attorney’s office named the article as one reason for why it supported Rell’s commutation, which the Governor of Pennsylvania granted on July 14, 2022.
For some, these “material outcomes,” or at least a scholarly motivation to achieve them, render scholarship like Redeeming Justice suspect.
While some academics believe that scholarship like Redeeming Justice is urgently needed to advance social justice, others resist its classification as legal scholarship at all, claiming that it lacks the objectivity necessary to qualify.
For instance, in a recent editorial, London School of Economics law professor Tarunabh Khaitan characterizes legal scholars who engage with others outside of academia to inform the production of knowledge as compromising the “moral obligations” of a scholar.
As I will detail below, this debate inherently turns on one’s theory of how knowledge is produced and whether you believe that human beings can perceive the external world through their own consciousness alone or instead believe that reality is collectively constructed.
Consequently, in part in response to these skeptics, this Piece begins to chart the epistemology—or theory of knowledge—that drives PLS. In line with the emancipatory pedagogy of Paulo Freire,
which provides its theoretical foundation, PLS rejects the narrow and detached notion of expertise that often informs the law and legal scholarship. This detached notion of expertise is epitomized by Khaitan, who believes that the sanctity of knowledge production depends on legal scholars abandoning their “activist impulse” and retreating from the world to discover “truth.”
Indeed, his prototypical methodology reflects his belief that legal scholars do their work best when they take “distance” from the subject being studied and adopt “an attitude of skepticism.”
In contrast, PLS adopts a Freirean understanding of knowledge production, whereby legal scholars can better understand how the law functions in the world by examining it in concert with those who have experienced its bluntest consequences. According to Freire, because our individual knowledge is inherently subjective, “truth” can only be revealed through engaging in dialogue with others so that we can see a fuller picture of the world.
Drawing on Freire’s dialectical process of learning through dialogue with others, this work presents an alternative theory of knowledge, based on the belief that we arrive at truth collectively, not singularly. PLS is thus grounded in a belief that we cannot fully understand the law’s effects in the material world through our own consciousness alone. In other words, we cannot understand the law only by looking at how it appears on the page. Rather, law is best understood in conversation and solidarity with others who see law from a different vantage point.
I thus contend that partnership with those who have no formal training in law—but who have expertise in law’s dysfunction—can help us to see the law more clearly. By foregrounding the lived experience and analysis of nonlawyers who are frequently marginalized, not just by the law, but in legal scholarship as well, PLS creates a fuller account of the law. As I set forth below, laws are often constructed and interpreted by those who are not directly affected by the problems the laws are meant to address.
For that reason, undergirding the law are nascent narratives about how the world works that at times do not reflect the realities of those most profoundly impacted by those laws.
At worst, these dominant discourses reflect a white heteronormative subjectivity and reproduce structural racism.
Indeed, because of an enduring fiction that interpreting the law is an objective, impartial, and politically neutral act, racial politics and power imbalances can remain hidden in judicial opinions and legal scholarship, lurking behind the technicalities and legalese of law.
As I will explain further in this Piece, this is particularly true in the realm of criminal law.
PLS seeks to disrupt law’s flawed construction by elevating critical lived experience that contradicts the dominant narratives that lay beneath laws.
In lifting up these critical stories, PLS seeks to pull out common threads shared by those who bear the consequences of law in order to expose where the law might be missing its mark and in need of upending. Often these common experiences fuel movements, which act as vehicles to alter how society understands the functionality and inevitabilities of law.
Accordingly, attention to episteme produced by movements is often a core component of PLS methodology. One of the primary goals of PLS is to expose counternarratives to the law, thereby creating spaces for social and legal change. By design, PLS also reminds us of the humanity behind the law, acting as a moral check and balance to the law. Building from the tradition of Critical Race Studies and an emerging body of Movement Law scholarship, PLS thus aims to press the boundaries of what legal scholarship traditionally looks like by evoking lived experience as evidence and developing legal meaning alongside social movements.
This Piece, the first of several in a series that will grapple with the participatory epistemology and methods needed to democratize the law, is written from my perspective as a legal academic partner in PLS. Part I situates PLS as part of a broader cross-disciplinary Participatory Action Research (PAR) movement to reposition subjects of research as partners in research. In doing so, it explores how participatory methods could inform legal scholarship but also identifies where PLS diverges from other forms of PAR. Specifically, unlike some forms of PAR, PLS’s central purpose is not to work with those affected by the subject of the research to collect information in their community using traditional research methods like focus groups or interviews. Instead, through a collaborative process, the goal of PLS is to generate legal theory grounded by the analysis of those with lived experience in law’s injustice, along with technical and research support from legal scholars. In line with Freire’s emancipatory pedagogy, which centers the marginalized as those most equipped to liberate themselves from oppression,
PLS posits that true liberation cannot occur unless any reimagination of the law or legal systems involves analyzing the law along with those marginalized by it through praxis—a process of action and reflection.
Part II sets out the theoretical underpinnings of PLS. First, grounded in Freire’s relational understanding of knowledge production, this Part articulates an alternative theory of knowledge, based on the belief that we arrive at truth collectively, not singularly. Drawing from this collaborative theory of knowledge, I contend that partnering in legal scholarship with organic jurists who have expertise in law’s injustice can help us see the “truth” of the law more clearly. Second, drawing from Robert Cover’s pluralistic conception of the making of legal meaning,
this Part continues by setting out the legal theory for PLS. Like Cover, PLS takes as its starting point the conviction that the law has multiple meanings and that its interpretation necessarily depends on the worldview of its translator.
This Part contends that PLS enhances the formation and contestation of law by lifting up critical stories that counter the dominant discourses, which inform the law and its interpretation, sometimes expressly, other times covertly. By exposing and challenging these narratives, Part II describes how PLS can act as a check on arbitrary state power and violence. It further envisions legal scholarship, if participatory methods are employed, as one site where new legal worlds can be imagined.
Part III then turns to PLS’s praxis—which Freire defines as “reflection and action upon the world in order to transform it”
—describing PLS’s underlying ethos and methodology. Specifically, it describes how participatory methods are inherently relational in nature, explaining why forging PLS in trusting and solidaristic partnerships is the key to ensuring that it is nonexploitative. Part III also explores some of the features of the legal academy that might inhibit PLS from realizing its full potential and methods for overcoming them. To that end, it outlines the need for critical self-reflection by academic partners in PLS on how their positionality in academic institutions might limit their understanding of expertise and imaginative thinking and inform behaviors that propagate hierarchy.
Finally, Part IV responds to critics who believe that scholars should commit themselves to pursuing “objectivity” in legal scholarship and thus denounce “scholactivism.”
In essence, these scholars argue that pursuing real-world objectives through legal scholarship and doing so in collaboration with nonacademics, as I did in Redeeming Justice, compromises a scholar’s “special moral obligations” to “truth-seeking and knowledge dissemination.”
This Part addresses those criticisms head on, exposing the risks of adopting a moral commitment to neutrality and objectivity in scholarship.
Ultimately, however, this Piece is directed at others like me who “yearn to build research collaboratively and respectfully with communities outside the academy.”
It has been developed in conversation with my coauthors of Redeeming Justice, Rell and Ghani, yet it is not meant to supplant their voices or speak for them. Rather, it is undertaken as a vehicle to reflect on and be transparent about the commitments and epistemology that led me to be part of this enterprise.
Principally, in this work, I explain why I believe that PLS is not just a legitimate form of scholarship but one that is urgently needed to address the fissures and fault lines that law, particularly criminal law, has created.