Jettisoning the critical

Jettisoning the Critical

Now, what I want is, facts. Teach these boys and girls nothing but facts. Facts alone are wanted in life. Plant nothing else, and root out everything else!

(Thomas Gradgrind in the opening lines of Charles Dickens, Hard Times, [1854] 2005).

Towards New Knowledge

Law schools in common law jurisdictions have always placed great store on teaching statutory interpretation and case law. Legal doctrine is privileged because it is functional and knowledge of the rules is a prerequisite for admission to practise. This approach is almost exclusively concerned with what the law is, with little regard for critique, reflective analysis or what the law ought to be. Positivism, the legal philosophy underpinning the doctrinal approach, seeks to draw a line between law and morality, law and the social and law and all other forms of knowledge (Hart 1961: 253, n. 181). By and large, positivism is a self-referential system in which the authority of law is law. It allows legal rules to be dealt with formalistically without regard to their effect.

The amoral and depoliticised stance of legal positivism leaves much to be desired as a basis of legal education (Sage 2004; Pue 2005). The relentless focus on the technical in the absence of an ethical sensibility effects what Bachman refers to as a kind of ‘moral neutering’ of the law student (1995: 57). Derber argues that this desensitisation serves a particular ideological purpose, for it absolves lawyers of ethical responsibility for the work in which they are involved (1982: 180; see also Marcuse 1964; Thornton 1998). A technocratic amoral stance enables a lawyer to act for the rapist one day and the victim the next without batting an eyelid. The overall effect of the aridity of positivism is to encourage cynicism on the part of the law student (Economides 1997: 29).

Liberal legal education sought to transcend the technocratic approach by introducing critical interdisciplinary perspectives, including socio-legal scholarship, law in context, law and society and sociology of law. Informed by the insights of the humanities and social sciences, the liberal law school encouraged the development of well-rounded lawyers. Rather than rote learning and the mechanical application of rules, a liberal legal education aimed to encourage students to think for themselves. A liberal legal education was not tied to any specific vocation (ACLEC Report 1996). Most significantly, it was not geared to producing only conventional legal practitioners.

Reason is central to Newman’s famous model of liberal education in which knowledge is pursued for its own sake (Newman 1976; Ker 1999). Liberal education is ‘an acquired illumination’ (Newman 1976: 105) – the telos of the good life. Newman is primarily concerned with the cultivation of the intellect, not vocational training. He accepted that law belonged in a university but, to justify its inclusion, it had to be informed by reason. Thus, while Newman recognised the significance of vocational training as an end in itself, he distinguished education as ‘higher work’. Committing rules to memory could not contribute to the development of the mind or the formation of character (Newman 1976: 105). Newman understood knowledge to encompass all kinds of knowledge, but it should not be limited to practical knowledge or skill. He believed that education could serve instrumental ends, but the liberal education he envisaged carried social benefits with it that could not be impeded by instrumentalism:

If then a practical end must be assigned to a University course, I say it is that of training good members of society. Its art is the art of social life, and its end is fitness for the world. It neither confines its views to particular professions on the one hand, nor creates heroes or inspires genius on the other. … But a University training is the great ordinary means to a great but ordinary end; it aims at raising the intellectual tone of society, at cultivating the public mind, at purifying the national taste, at supplying true principles to popular enthusiasm and fixed aims to popular aspiration, at giving enlargement and sobriety to the ideas of the age, at facilitating the exercise of political power, and refining the intercourse of private life.

(Newman 1976: 154)

However, as Bradney points out, the notion of precisely what liberal education means today when transposed to the law discipline is by no means clear (Bradney 2003: esp. 32–34). The free enquiry advocated by Newman has never been the mission of law schools, for their primary role has always been functional. A liberal legal education nevertheless compels an understanding of law as social artifact, rather than a sterile set of rules to be applied mechanically to any problem. Indeed, the reformist and social justice agenda of social liberalism compels different understandings and approaches to the teaching of law in contemporary society. Doctrinalism was of little help when the law first confronted novel issues such as in vitro fertilisation, same-sex custody disputes or cyberporn.

Nevertheless, the idea of a liberal legal education is not entirely novel, for a breadth and depth of learning informed the jurisprudence of the influential jurists of the common law tradition, which antedated the creation of the university law school. Sir William Blackstone, for example, on his election to the Vinerian Chair – the first Chair in English Law – at Oxford in 1758, extolled the virtues of a liberal university education and decried the practice orientation of contemporary legal training:

If practice be the whole he [sic] is taught, practice must also be the whole he will ever know: if he be uninstructed in the elements and first principles upon which the rule of practice is founded, the least variation from established precedents will totally distract and bewilder him: ita lex scripta est is the utmost his knowledge will arrive at; he must never aspire to form, and seldom expect to comprehend, any arguments drawn a priori, from the spirit of the laws and the natural foundations of justice.

(Blackstone 1979: Bk I, 32)

Respect for the liberal arts dimensions of law were emulated in the first universities in Australia and New Zealand. Jurisprudence, for example, was offered as a liberal art by the University of Canterbury at Christchurch when it first opened its doors in 1873. Roman law and legal history, taught in the great universities of the Middle Ages, lingered on in the older universities, but has largely disappeared (Kirby 2005: 166). Despite Blackstone’s insights, a liberal education has largely been acquired outside the law discipline.

Historically, the study of law involved practical training through apprenticeship (articles). Once university law schools had been established in the nineteenth century, they assumed this training role and the liberal education of lawyers was largely left to arts faculties. Thus, in the 1960s, Canada followed the US model of graduate entry into law school, whereas the phenomenon of the combined degree became the norm in Australia,1 which enabled students to enrol concurrently in law and another degree, usually arts. More recently, the JD has gained popularity as its graduate status allowed full fees to be charged. From 2008, it has been the only law degree to be offered by Melbourne Law School. Both the combined degree and the graduate degree theoretically ensure that most lawyers have at least some exposure to a liberal education, if not a liberal legal education, although the market has induced a preference for commerce over arts degrees.

In the early years, law school lectures were given by full-time practitioners with a bias in favour of the applied. It was only in the post-World War II period, when career academics were appointed, that things begin to change and a propositional approach did not comport with liberal reformism. The intellectual ferment engendered by social liberalism encouraged students to think creatively about the beneficent possibilities of law as a force for social change. New ways of thinking about law informed public debate on a raft of novel issues, including domestic violence, land rights for Indigenous peoples, consumer and environmental protection. Nevertheless, I do not wish to suggest that the 1970s and 1980s represented a golden age, for the legal profession was generally conservative, steeped as it was in the common law tradition. However, within the maelstrom of civil society, there was a mood of optimism that acknowledged the legitimacy of social justice and law reform, animated by the idea that law was an instrument of power which was not the sole prerogative of the wealthy.

By the late twentieth century, legal education combined doctrine, practical lawyering skills and the more academic approaches to law, although this inevitably produced tensions and sometimes trenchant critique, as illustrated by Twining (1967) and his polarised imagery of Pericles and the plumber. The denigration of progressive legal academics by a former president of the NSW Bar Association as ‘failed sociologists’ who ‘scribble and prattle relentlessly about such non-subjects as criminology, bail, poverty, consumerism, computers and racism’ is a notorious example (Chesterman and Weisbrot 1987: 716; cf. Parker and Goldsmith 1998). At the same time, it revealed how a propositional approach was being challenged in law schools.

So significant had the liberal orientation become that the Pearce Committee was able to proclaim in 1987 that the law degree was the new generalist degree, replacing Arts. Thus, in a very short time, the LLB had been transformed – or so it was believed. The Pearce Report was nevertheless somewhat ambivalent itself about the dramatic changes that had occurred (Weisbrot 1990: 128–36). It was critical of a narrow doctrinalism that focused on appellate court judgements, and praised law schools that paid attention to social, political and ethical issues. Despite this, it recommended closure of Macquarie Law School, the school that came closest to the critical and interdisciplinary model it extolled, because of its alleged lack of ‘solid legal substance’ (Pearce Report 1987: Vol. 3, 22.54–71). Doctrine, it seemed, must remain at the centre regardless of what else was going on. A critical pedagogy influenced by the US Critical Legal Studies (CLS) movement apparently went too far, although the Pearce Committee does not explain why. As James points out, Pearce posed a dilemma for legal educators: ‘how to include critical perspectives in the curriculum without being too critical of legal institutions and the law school’ (James 2000: 972). As Economides points out (1997: 28), deconstructive legal theory, which prevailed in the 1980s, may also induce cynicism among law students, in the same way as mainstream positivism.

Despite its ambivalence about Macquarie, the Pearce Report is widely credited with stimulating interest in legal education in Australia (Keyes and Johnstone 2004: 551), although the changes that occurred might be attributable in part to broader social change that was occurring at the time (cf. Arthurs 1998: 18–19). Indeed, McInnis and Marginson (1994) found that most of the law schools reviewed a few years later attached considerable importance to the social context in which law operated. Law schools began to attract enthusiastic young academics who were inspired by the possibilities of law, and who wished to introduce new subjects and incorporate new ways of thinking into their teaching. Reformism struck a chord also with those idealistic students who wanted to change the world; they were not prepared to tug the forelock in the face of legal orthodoxy. Some were influenced by postmodern currents in other disciplines, including literary theory, postcolonialism and cultural studies.

Within no time at all, however, the market turn signalled a retreat from the social. The liberal law school was soon under stress and there was a discernible swing back to a more technocratic and applied focus with the result that ‘[t]he “liberalism” in legal education [was now] likely to be “market liberalism”’ (Goldsmith 1999). The invocation of new-class discourse to demonise and delegitimise collective goods and social justice initiatives through neoliberal populism was remarkably effective in Australia from the time the Howard Government assumed power in 1996 (Cahill 2004; Maddox 2005: 92). The pejorative language of ‘political correctness’, ‘special interest groups’ and ‘bleeding hearts’ struck a chord with conservative legal scholars who did not support the social liberal turn in the curriculum but were prepared to go with the flow when a reformist mood was in the ascendancy. Once the political worm had turned, there was no longer any need to present a progressive face to the world. The neoliberal agenda offered the perfect opportunity to blanch the curriculum of all vestiges of discomfiting aspects of the social – especially those elements dealing with sex, race and sexuality. A noted manifestation of the retreat from the social is the reversion to a ‘straight’ law programme (that is, undergraduate law unaccompanied by another degree, such as Arts) meant that virtually all traces of a liberal education may have disappeared from a law student’s educational experiences, as I will show through a more detailed consideration of the curricular and pedagogical changes that were put in train. Consequently, I take issue with Bradney (2003) who has written a paean to the liberal law school as a late twentieth to early twenty-first century British phenomenon, arguing that it has now become widely accepted. Based on the research I have conducted, my sense is that the liberal law degree has been a short-lived aberration in the common law world – certainly in Australia and New Zealand, but also in the UK where the proposition is likely to be even more starkly realised apropos the Browne Report. The greater the impoverishment of a law school, the less ‘liberal’ it is likely to be:

My greatest criticism of a poor law school is that it’s attached to the training of solicitors and this attitude … that black letter law is somehow an elevated academic discipline … Black letter law to me is lower order education; it’s descriptive and it’s easy; anybody can do it. Whilst I don’t think we shouldn’t do it, it’s not sufficient for training students in law … Black letter lawyers … seem to think that they are somehow intellectually and academically superior to critical and comparative scholars and that’s what I find alarming.

(Lecturer, male, Generation3, Aus)

The swing to the right in global politics, together with the fact that law students have assumed a substantial financial burden on enrolment has encouraged a more instrumental mindset, as I have argued in Chapter 2. The predominant concern of students is their desire to progress through their course as quickly as possible to start earning money. This has encouraged a reversion to, or at least a hardening of the attitude that the law school experience is primarily a site of training and credentialism rather than humanistic education. All law schools have capitulated to the market message to varying degrees, which has induced a movement away from critical engagement to a practice-oriented approach:

We constantly wrestle with a narrow student concept of relevance … They’ll fight you very determinedly … It seems to me as students progress through the course their conception of relevance broadens to some extent … But if you present them with a set of facts or a particular case and then say, ‘Such and such a body says moral philosophy is relevant here and this other body of moral philosophy would seem to contradict the first view and judges are pulled in both directions’, you can draw them in. I’m not sure that we should have to think about drawing them in, but it seems to me in contemporary culture that’s the name of the game … The closest we get to making jurisprudence compulsory is in the series of lectures on interpretation and argument in Year I, and that little course has been a site of conflict for ever … What we found over the first three or four years was the students saying that they found this rather tough, hard going, and I got a specific instruction last year to calm it down a bit … What I now do is to say that I’m going to present you with four concepts: the idea of the rule of law, the concept of morality, which isn’t a single thing but a variety of things, and justice, which again isn’t a single thing and then we’ll look at particular legal issues … We still found misgiving, ‘What’s the relevance of this? … Why not just teach us hard law and leave it there because that’s much more obviously useful to us?’

(Lecturer, male, Redbrick, UK)

As corporate law firms focused more obsessively on profits, the instrumental message that it is the role of law schools to produce fully fledged legal practitioners became louder and more insistent:

I think there is a tension between ourselves and the profession because the profession wants people who can start from day one and earn money, whereas I and most of my colleagues are committed to the idea that this is a university education we are giving them. If the profession wants, we will give them the tools which the profession can use but I don’t see the need to teach them how to convey a house.

(Snr Lecturer, male, Sandstone, Aus)

While the profession may not appreciate the ‘trade school’ nomenclature of the past, some law societies have been strongly critical of law schools that espouse a liberal legal education. The UK Law Society, for example, has claimed that students do not know enough basic law when they graduate (Mizzi 2002). Such remarks, uttered in a highly competitive legal labour market, have contributed to a more instrumental orientation on the part of law schools.

As already noted, the so-called ‘core curriculum’ invariably privileges property and profits, which favours the interests of the powerful. Law dealing with less powerful interests, as well as the affective side of life, has never been well served by generic legal education (López 1988–89). To illustrate the point, the Victorian Council of Legal Education, whose requirements formed the basis of the Uniform Admission Rules in Australia, opted for the inclusion of company law rather than family law when reviewing accreditation requirements, on the ground that the ‘building block’ components of family law were contract, property and trusts (Council of Legal Education Victoria 1990). Children’s rights, gender relations, domestic violence and a host of other human rights and social issues pertaining to the family were clearly subordinate to ‘property and profits’ (Thornton 1991: 2).

Nevertheless, contemporary areas of practice, such as international law, which are of increasing importance in a globalised world, are rarely included in the compulsory core (Keyes and Johnstone 2004: 551; CALD, 2000: 9; Blackett 1998). This may reflect the parochialism and conservatism of the admitting authorities, generally dominated by judges who practise in municipal courts. In contrast, schools, such as New York University Law School (NYU), which are keen to position themselves in the global marketplace, are blurring the boundary between domestic and international law, albeit criticised by some for ‘co-opting globalisation’ as a ‘motif’ (Flood 1999: 143). Forays into new areas are generally prompted by practical considerations. Britain’s entry into the European Economic Community compelled law schools to expand their curricular horizons significantly.

Despite the rhetoric exhorting the introduction of international law, it is nevertheless notable that international students are encouraged to enrol in law programmes as paying customers with little attempt to adapt the curriculum for them or to consider how they might contribute to the enrichment of the curriculum for domestic students:

We don’t bring them in because we are interested in what they have to say or what they can contribute to our learning … We bring them in for money … Part of the globalisation of trading is the fact that it’s hard to trade with a partner unless you know the culture and understanding they bring to the task … We tend to be educating those people that this is how we do it and this is the cultural understanding with which we engage but we are not doing it the other way around.

(Prof and HoS, fem, New, Aus)

Admitting authorities generally make no mention of theoretical, critical or jurisprudential knowledge, a factor that serves to drive a wedge between the doctrinal and the critical in legal education: ‘The most pervasive and subtle effect of bar examinations may be the way in which these examinations, as the gateway to professional practice, engender expectations among law students about what should be taught in law school’ (Kissam 2003: 205). The pressure to include more and more applied professional skills underscores the orientation towards teaching law as it is. The ought of law thereby becomes a dispensable addendum. Universities notionally set their own degree requirements for the LLB, which may include as few as four elective subjects. While there is a degree of choice at the margins as to the subjects taught, the ‘core’ legal curriculum remains highly circumscribed (Johnstone and Vignaendra 2003: 91). This is no less the case in the US, despite being the source of innovative schools of thought, such as Legal Realism, Law and Society and Critical Legal Scholarship.

Optional subjects allow more freedom than the ‘core’ but, even then, we see how contemporary pressures have had the effect of reining in this freedom, as students choose areas of knowledge they believe will boost their chances in the labour market. These subjects may also relate to business and property, and include corporations law, trade practices, international trade and intellectual property, which are increasingly viewed by students as quasi-compulsory (Johnstone and Vignaendra 2003: 112). Similarly, in the case of one Canadian law school with 75 subjects or more on offer, students still favour the ‘hot’ subjects which they believe will make them attractive to the large firms – business law, intellectual property and international trade. Even when students evince an interest in broader social issues, they worry about the way these subjects appear on their transcripts:

There is, sadly, an increasing opposition to critical and theoretical perspectives from students. They are so focused on getting a good job when they finish law school that focus is evident from the moment they walk through the door. What they think gets them good jobs are commercial law subjects, so they want to know the nuts and bolts of contract, intellectual property. I have actually had students come to me for advice as to whether they should take a subject like feminist theory because it might look bad on the CV.

(AsPro, fem, Sandstone, Aus)

Students feel they have to take certain kinds of courses if they are going to get the kind of education that will enable them to earn the kind of salaries that will enable them to pay back the kind of debt they’ve got. So I think there are lots of bad effects.

(Prof and former Asst Dean, male, Can)

Relevance, predictability, certainty and utility are central to the logic of instrumental rationality associated with new knowledge, despite its postmodern overtones of fluidity and permeability. In a highly regulated and bureaucratised context, critique, which transcends the known to imagine the way things might be, remains ‘unspoken, unspeakable, and unthinkable’ (Hall 2005). Interrogation of the values underpinning new knowledge is resisted through an unreflective technocratic approach, which is the corollary of an illiberal legal education. Service of the economy and the exploitative processes of corporatisation have stressed the ‘ideological desensitisation’ of law students to which Derber (1982: 180) refers and which is induced by a technocratic pedagogy.

Sloughing off the Social

Beset by uncertainty about their future, law students have become increasingly ambivalent about social justice. As Adam and van Loon point out (2000: 12), the language of risk does not easily accommodate itself to the language of injustice. Although many students in their initial years at law school want to change the world, the typical pattern is that they begin to slough off a concern for injustice in favour of the more lucrative areas of practice as they come closer to graduation. While there is always a committed group of students who are passionate about social justice, this group is shrinking year by year. Areas that deal with the affective side of life – human rights, discrimination, native title and feminist legal theory – are the first to be jettisoned. The contraction of the so-called ‘soft’ areas mirrors the neoconservative assault on welfare, Aboriginal reconciliation, equal opportunity, environmentalism and workplace protections as forms of special pleading (Cahill 2004). Diversity in the curriculum has contracted everywhere:

We are predominantly a black letter law school … We have had critical theory people in the past, but students have not reciprocated the challenge … We do not have enough diversity and we do not make students confront the bigger issues. Some of them really like it when they get the chance, but quite a lot of them don’t: ‘I only want enough to get me to the Bar’.

(Dean, male, NZ)

It’s gone downhill. In the early 90s, we strongly argued that critical perspectives be integrated into courses. You could take 1st Year as an example, where the idea was that Property, for example, would focus a lot on Aboriginal issues and so on. Energy and effort were put into the preparation of materials for faculty on the integration of race and gender issues, but then people wouldn’t pick up on it.

(Prof and AsDean, fem, Can)

A resources argument can always be used to dispense with critical subjects in order to maintain a more conventional curricular orientation. Most law schools specify a minimum enrolment, although management of a school’s scarce resources always poses a dilemma:

Each individual thinks, ‘I’m entitled to whatever option I want’ but, as Head of School, you have to say, ‘What about the resources?’ If we offer that course, it’s time-consuming for staff and is it appropriate for the curriculum as a whole? I’m all for it if the students want to take it … Intelligent use of resources is important but it’s hard to get academics to see it.

(HoS, male, Redbrick, UK)

One member of staff is passionately interested in animal rights. He wanted to run a course on animal welfare, but he would never be allowed because it would never get the numbers; it’s too specialised.

(Snr Lecturer, fem, NZ)

Critical subjects might be accorded reduced contact hours or offered only occasionally, a factor which in itself can cause student interest to wane. Small enrolments can then be used as a reason for not offering such subjects at all. Another approach leading to attrition is to deploy specialist scholars to teach in the compulsory core, again in the interests of maximising resources. The targeted option may then be offered as an ‘extra’, that is, it is unacknowledged in the computation of workloads.

Diversity issues are nevertheless central to the compulsory core. Criminal law, for example, raises questions in regard to sex, race, sexuality and class, but such issues are marginalised in a context dominated by power and money: ‘Criminal law is considered by corporate lawyers as the most degraded form of practice but it is of course the one area of practice with a necessarily large component of social justice’ (Prof, fem, Can), which students want to slough off:

The students feel that they want a particular type of criminal law which will equip them for practice … We’ve managed to push on with a contextual approach and we’ve introduced provocative elements within it, but I can’t say the students are entirely happy if we push it too far, and they let us know: ‘Just give us the law’. I’m finding elements of that in all of the courses I do. The grey areas are not so interesting to the students.

(Lecturer, male, Redbrick, UK)

Aboriginal reconciliation, anti-terrorist legislation and civil rights reside in the realm of the socio-political and the ideological, replete with gaps, uncertainties and unanswered questions, a confused constellation of ethical issues that does not comport with legal positivism’s neat categorisation and desire to draw a line between law and morality. Justice issues within an international frame carry a certain cachet, which make options such as international human rights attractive, but such a subject may not be considered suffciently lucrative:

I do have a great love of public international law and human rights law, but the days of just offering a subject have gone. That is considered an indulgence. The sort of thing I am being pressured to produce are specialist subjects in migration law because I have developed a course in refugee law with some colleagues in the arts faculty … that would be shifted to training migration agents in business migration programmes and I keep going, ‘I’m not interested’, but the indirect dialogue that happens at school retreats or school meetings goes something like, ‘Well, we are thinking of starting up a Centre for Migration Law because this is where the numbers are and we can get so many dollars per student’ … That’s the pressure that middle management is putting on staff.

(Lecturer, fem, Generation3, Aus)

Traditional universities are somewhat slower to change their ways than the News. Some older law schools have been in the process of modernising their curricula just when the newer schools are moving back to doctrinal curricula with a commercial and applied edge. An interviewee from a new university in the UK argued that traditional universities maintain a mindset in favour of homogeneity, whereas diversity inheres within the new universities because of the need to respond quickly to new demands, as well as their heterogeneous catchments:

Diversity and the broadening of the access agenda is something particularly relevant in an institution like this. We have a very high proportion of ethnic minority students. I would say they actually exceed the white students on the degree programme. The ethnically and experientially diverse group in terms of educational background has created new tensions for teaching … Wastage and attrition is a big issue.

(HoS, male, New, UK)

The generally low status of legal academics as non-productive entities within the market has changed the power dynamic in relation to the curriculum. The notion of student choice imbues practice-oriented options with a sense of economic rationality because they attract large enrolments. ‘Choice’ is then used to justify the disfavouring of social justice and more theoretical subjects. In this way, it can be seen that the curriculum is shaped by the supply and demand vectors of the market, rather than intellectual worth or pedagogical practice. Critical courses are still being offered in schools committed to notions of liberal education and social justice, but the majority of students receive little formal exposure to critique: ‘Students who aren’t naturally drawn in that direction are not being taught it at all; they are not being pushed to do anything they don’t feel is directly related to their job aspirations’ (Prof and former Dean, fem, Can).

Despite, or perhaps because of, the dominance of the market in the late twentieth century, legal ethics receded in importance (Kronman 1993),2 but are once again back on the agenda (e.g., Parker and Evans 2007; Lamb and Littich 2007). While I do not discount the inclusion of ethics, professional conduct and professional responsibility as a positive counterpoint to the force of the market, the underlying assumption nevertheless appears to be that students are going to be conventional legal practitioners: ‘We have dropped jurisprudence for what is called legal ethics … the ethics of acting as a lawyer … So the wider set of ethical issues that might have once arisen through jurisprudence is no longer tackled’ (Snr Lecturer, fem, Sandstone, Aus).

Vocationalising the Curriculum

To facilitate the New Knowledge Economy, large numbers of lawyers are needed, not only with a basic knowledge of contract and business law, but with specialised knowledge of trade practices, taxation, intellectual property and international trade law. It is to this need that law schools are responding:

There’s been a huge demand for international trade law and I’ve been forced into that area because of places where I’ve worked continually saying we want somebody to teach it. International trade law has become one of my major areas, even though it’s not really an area of interest.

(Snr Lecturer, male, Redbrick, Aus)

The change also reflects what has occurred in the practice of law. As law firms themselves have become corporatised, they have become more concerned with profit-making than the public good. This has induced a preference for corporate over individual clients. There is therefore a homologous relationship between the corporatised academy and the corporatised law firm, which shapes the law curriculum and the receptivity to particular kinds of graduates. Those who encourage critical skills with the aim of producing responsible citizens, not merely competent legal practitioners, speak a language that corporatist interests have little interest in hearing (Lancaster 1993: 50).

The commercial and property bias traditionally underpinning the law curriculum received a boost with the economic growth of the 1980s (Chesterman 1998: 104). As a result of the neoliberal turn, the emphasis on facilitating the market is now so strong that commercial law has been made the focus of the curriculum in several Australian law schools. One law school specified that all so-called ‘optional’ subjects be commercially oriented, so that students in fact had no choice. This school was thought to have gone too far, however, and there was eventually pressure from staff to change: ‘I think there’s a great danger of turning out legal barbarians and I’ve always been very strong on having a more humanistic law degree’ (Snr Lecturer, male, New, Aus). Other schools have ‘vocationalised’ their curriculum through such mechanisms as favouring commercial specialists in appointments and giving preference to commercial law in the award of research and travel grants, as well as study leave. Although most Canadian law schools have retained a commitment to liberal legal education, they have not been immune from market pressure. One school required a range of compulsory commercially oriented subjects, including insurance law, which stretched over the entire 3-year programme.

The logic of the market is effectively channelled through consumer choice. Students are placing pressure on their schools for more commercial and private law subjects, while they turn their backs on the more humanistic options. Students no longer tolerate being told what is best for them. As consumers, they want a say in the kind of knowledge they are acquiring:

Twenty or thirty years ago, we knew what was right about the world and we were going to tell people what was wrong with it. Now, we are much more consumer aware.

(Lecturer, male, Redbrick, UK)

I used to get one or two people saying, ‘Why aren’t we learning to do a real estate conveyance in 1st Year Property’, but now it’s a few more … If you look at the pattern of courses, we seem to have dropped a lot. Labour Law, for example, has far fewer students than it used to have.

(Prof and former Asst Dean, male, Can)

The emphasis on commercial law does not, of course, necessitate that it be taught uncritically. Indeed, a critical focus on the ethical underpinnings of the activities of transnational corporations is vital in an era of deregulation. As Damien Cahill (2004: 94) points out, new-class discourse has been used effectively to mask the activities of corporations by denigrating social justice initiatives. It is for this reason, Cahill suggests, big corporations have poured millions of dollars into neoliberal think tanks. What may now be termed the ‘neoliberal law school’ does not have to set up think tanks to secure the same ideological effect through its curricular offerings and doctrinal orientation. The disproportionate focus on facilitating the market through the law curriculum has the effect of engendering what López (1988–89) terms a ‘formidable indifference’ on the part of legal academics, as well as students, towards social change.3 Neoliberal governments have been able to effect this change in the psyche of law students through policies of under-funding and user-pays. The focus of the law degree, as Harry Arthurs (2001) notes, is ‘no longer about making the world a better place; it is about making the world safe for markets’.

It goes without saying, of course, that legal education can never be an entirely closed system and there will always be some who resist deference to the market:

We know that individual academics and their individual electives are favourite targets of reactionary business administrators so a good idea is to embed all that stuff deep within the LLB where they can’t see it and root it out easily. Corporations law … is a great place to be hiding because I am hiding in the core, the commercial, the respected, the business part of law, yet I come with very strong academic and critical values and I am going to be able to embed them into this LLB subject … You have to be careful not to be too easily labelled. If you are teaching drugs law or environmental law, you are easily identified and eliminated, but if you are hiding in corporations law and giving a critical perspective, these reformers aren’t going to come in and read the chapter and verse of what you are teaching.

(Lecturer, male, Generation3, Aus)

Wrestling with Theory

Theory extrapolates from individual examples to a higher level of abstraction and seeks to explain behaviour in light of social, political and historical factors. It transcends the boundaries of the instant case to ask questions about the role of the market and the state, the incidence of similar phenomena, and so on. Jurisprudence and legal philosophy have a secure place in legal scholarship, but occupy a shadowy realm at the periphery of legal education. More familiar in legal education is critique, which involves interrogating the basic premises of knowledge, rather than blindly accepting them, in order to understand better what lawyers do.

The sloughing off or diminution of critical and humanistic questions in favour of the automatic transmission of doctrine has occurred with amazing rapidity in light of the comparatively short life of the liberal law school. An attempt to justify the evisceration of theory may be made on the basis that there is insufficient time to deal with it:

The depth is going out of the courses and oftentimes that depth is the critical, jurisprudential, comparative and historical analysis … That’s particularly relevant for electives that deal with justice or socio-economic issues, whether it’s feminist jurisprudence, inequality, human rights law or environmental law, native title law, international law, or even courses like intellectual property law which have a very significant economic component. You want to look at the economics and how it has grown to influence the way the law has developed but you don’t have the time to do it. You’ve got to have a statute in front of you, you have to have the case law in front of you, and all of the stuff that provides flavour and context to a discussion gets diminished, if not eliminated.

(Prof, male, Generation3, Aus)

The constraints of time are real in the case of the ‘core’ subjects, in respect of which the topics to be covered may be specified by the admitting authorities. The lessening of opportunities for interaction, the transmission of pre-packaged knowledge in lectures and online, as well as the sloughing off of research essays as the primary mode of assessment, have all contributed to the erosion of theory, however minimalist it might have been in the past. Generally speaking, critical engagement, written argument and research are in jeopardy as a norm of legal education:

Even amongst your colleagues there’s a new interpretation of what research skills are. They send all the students off on a 1-hour, 2-hour library tour and that’s their research skills and, when you complain, some people don’t understand what research skills are … They are drawn to the idea that it’s just a matter of sitting at a computer, putting in a library search … Theory has been lost.

(Snr Lecturer, fem, New, Aus)

The inclusion of more business-oriented subjects and professional skills subjects inevitably displaces critical options. As legal theory is not expressly included in the cluster of subjects required by the admitting authorities, it is consigned to second-order status from the outset. As legal scholars have observed, legal critique remains an under-emphasised and marginalised approach to the teaching of law in Australia (James 2006, 2000; Sampford and Wood 1998: 105). A few law schools make completion of a legal theory subject a compulsory component of the LLB, sometimes with students being able to select one subject from a cluster, but support for this option is decreasing in the face of the applied imperative:

When the faculty was set up, the catch cry was commercial law but there was a compulsory unit in legal philosophy – abolished as from yesterday. It now depends on what a lecturer can do in the confines of a unit. I teach a 1st Year unit of introduction to law; it does a little bit of international law, human rights law, a bit of statutory interpretation. We also do a topic called current issues and the law, where we try to bring out the philosophical issues through real life scenarios and in that topic we look at gender – the gender of judges, gender-related legal areas such as self-defence, provocation, battered women’s syndrome – that’s one week of a one-semester course.

(Lecturer, male, Generation3, Aus)

Any reduction in the time allocated to a course means that theory is the first element to go; doctrine is always accorded priority, and privileged by the admission rules. If a stand-alone legal theory subject is offered, it will invariably be optional, which renders it vulnerable to cancellation because of small numbers; resources follow demand:

We don’t have enough tax lawyers; they’re a beast that doesn’t exist, so you have to use external people who charge at a rate commensurate with being an external person and that sucks up more money. The idea of putting on a sort of gentle reflective elective which might be 25 people is now laughable when it’s 25 as against 150.

(Snr Lecturer, male, Sandstone, Aus)

When an applied approach is favoured, students may be unable to read theoretical articles when they encounter them. One interviewee reported how he felt that constraints were imposed upon his pedagogy by what his colleagues did because they failed to go beyond problems and case analysis. When he set a challenging policy-oriented essay question, there were complaints to the head of school that such questions were too difficult for the students and caused them stress. Theoretical perspectives within the compulsory subjects thereby become marginalised within an environment that privileges applied knowledge:

My sense is that students’ expectations about what is important and what is not important are incredibly disciplining forces, so that people may talk about these kinds of things in their lectures but when it comes to the final exam, the perfectly traditional final exam and students figure it out from previous years’ exams or from course summaries from previous generations of students, they don’t actually have to understand any of that theory stuff in order to get a decent mark to get the job they want – I don’t think much of it sticks in the long run.

(Prof and former Dean, fem, Can)

While the culture of vocationalism quickly puts down roots that are not easily dislodged, there may occasionally be resistance to the evisceration of theory:

In the curriculum review which we have just completed, there was a pretty strong view by a number of us that jurisprudence/critical scholarship should have been put back in as a compulsory course, as with professional ethics … It is the thinking part … We have looked around at some of the universities and are a bit surprised at what seems to be an abandonment of theory. If all we are doing is training lawyers, why come into the university?

(Prof and Dean, male, Sandstone, Aus)

Compulsory jurisprudence is now a rarity in the law degree everywhere as a stand-alone subject (Twining 1994: 75). Several schools reported the recent abolition of jurisprudence in response to pressure from students. The admission requirements relegate it to the margins, where students, with the support of at least some staff, believe that it should remain:

‘We hate jurisprudence; we really, really hate it. Why are you forcing us to do it when it is not part of the required subjects for the Council of Legal Education?’ And I have to say that I agree with them … We have the most problems with jurisprudence … Every year since we introduced it – about 1992 – there have been petitions about it.

(Dean of Students, fem, NZ)