Rethinking the Teaching of Law

Abstract

[Extract] The Senate Standing Committee on Employment Education and Training’s recent Report on Priorities for Reform in Higher Education commented that Universities have produced law graduates who “are usually well grounded in the knowledge and skills essential to the practice” of the legal profession, but who are not familiar in any disciplined sense with the society in which they are going to practise their chosen profession, who are not analytical, creative thinkers, whose education does not provide the basis for adequate flexibility, who are not sufficiently attuned to the need for “lifelong” learning, and who are not good communicators. In short, the Committee noted, “Australia is producing highly training technicians who are under-educated in the broader sense of the term”. A major factor highlighted by the Committee was the low quality of teaching in the education sector. It is difficult to argue against these comments made by the Senate Committee, and their application to law teaching in Australian Universities. They substantially describe my own experience as a law student, researcher and teacher in law schools since 1980. The focus of law teaching in university law schools, with a few notable exceptions is narrow, focusing primarily on exposition of legal doctrine, and rather halfheartedly, its application, with scant regard for the history, philosophy and political economy of the society within which law is practised and enforced. Despite some undoubted progress during the last few decades, law schools still have some way to go to break down the strong focus of professionalism and specialisation, where “knowledge has become cut up into innumerable separate parcels”, with a “specialist profession” as “custodian and user of each of these parcels”. A few years ago, in a perceptive article about the history of legal scholarship in Australia, Chesterman and Weisbrot pointed out that Australian legal scholarship has been “predominantly positivist” and unquestioning, eschewing any recognition of legal pluralism. A major factor encouraging the development of this approach has been the particularly close link between legal education and the legal profession.6 Until recently, university law faculties were “generally viewed as adjuncts to the legal profession, rather than truly academic institutions dedicated to liberal educational aims”. Law teaching was carried out mostly by practitioners, and there were very few fulltime academics. Little legal research was done, and the general approach in courses taught was fairly uniform. What distinguished Australian legal education from the English system was that the professional authorities did not themselves take responsibility for the “practitioners” subjects such as Evidence, Procedure and Conveyancing. Instead the law schools became “trade schools” providing almost all of the substantive law courses required for admission to practice. The professional authorities were not prepared to accord recognition for professional entry purposes to a university law degree unless it had a substantial “hard law” content in subjects directly relevant to legal practice.9 As Chesterman and Weisbrot noted: Australian university law schools, having won the right to be the principal providers of legal education and socialisation, also inherited the imperatives of practice from the profession. This included the empiricist tradition of English legal training, with its emphasis on pragmatic, inductive reasoning, and its lack of concern for sociological jurisprudence.