Thornton, Margaret --- "The Dissolution of the Social in the Legal Academy" [2006] ALRS 12; (2006) 25 Australian Feminist Law Journal 3-18

Last Updated: 23 September 2011

THE DISSOLUTION OF THE SOCIAL IN THE

LEGAL ACADEMY*

Margaret Thornton†

1. INTRODUCTION

The contemporary shift from social liberalism to neoliberalism has exercised a profound effect on

contemporary society. In fact, theorists such as Nikolas Rose speak of ‘the death of the social.1

Instead of collective good, the focus is on capital accumulation and promotion of the self

through the market, a role that is facilitated by government and the key institutions of civil

society, which includes universities. I will trace the brief life of an experiment to include the social

in the legal academy, which collapsed, in part, because of the transition from socio-liberalism to

neoliberalism. My purpose here is not to engage in a thoroughgoing critique of the effects of the

corporatisation of the university on legal education,2 but to outline the trajectory of change at La

Trobe University to show how it forms one segment of the neo-liberal mosaic that has

transformed higher education. Of course, the acts I describe could not have occurred without the

agency of individual administrators, but the prevailing political economy of higher education

created the conditions that facilitated these acts.

†

1

2

Professor of Law and ARC Professorial Fellow, ANU College of Law, Australian National University, Canberra. She was

variously Foundation Professor of the Law Program, Professor of Law and Legal Studies and Inaugural Richard

McGarvie Chair of Socio-Legal Studies at La Trobe University, Melbourne, 1990–2006.

Rose Nikolas ‘The Death of the Social? Refiguring the Territory of Government (1996) 25 Economy and Society 327.

I have elaborated on the demise of the social in legal education elsewhere. See, eg, Thornton Margaret ‘Among the Ruins:

Law in the Neo-Liberal Academy’ (2001) 20 Windsor Yearbook of Access to Justice 3; Thornton Margaret ‘The Demise of

Diversity in Legal Education: Globalisation and the New Knowledge Economy’ (2001) International Journal of the Legal

Profession 37; Thornton Margaret Inhabiting a Political Economy of Uncertainty: Academic Life in the 21st Century Occasional Paper

No 2 Institute of Postcolonial Studies Melbourne 2002; Thornton Margaret ‘Neo-liberal Melancholia: The Case of

Feminist Legal Scholarship’ (2004) 20 Australian Feminist Law Journal 7. See also, eg, James Nickolas ‘Power-Knowledge in

Australian Legal Education: Corporatism’s Reign’ [2004] SydLawRw 28; (2004) 26(4) Sydney Law Review 587; Collier Richard ‘“We’re all Socio-

Legal Now?” Legal Education, Scholarship and the “Global Knowledge Economy” — Reflections on the UK

Experience’ [2004] SydLawRw 25; (2004) 26(4) Sydney Law Review 503; Collier Richard ‘The Changing University and the (Legal) Academic

Career Rethinking the Relationship between Women, Men and the ‘Private Life’ of the Law School’ (2002) 22 Legal

Studies 1.

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THE AUSTRALIAN FEMINIST LAW JOURNAL 2006 VOLUME 25

2. A WORD ABOUT THE SOCIAL

The meaning of the social in socio-legal is unpredictable and transient. It embraces the

contextualisation, reflexivity and plurality of legal knowledge that transcends a purely doctrinal

approach to the study of law. Gibbons et al in their study of knowledge production capture the

distinction through what they term Mode 1 and Mode 2 knowledge.3 Mode 1 refers to traditional

disciplinary knowledge which claims to be universal, whereas Mode 2 seeks to take account of the

complexity of knowledge production with regard to its social context. By implication, Mode 2

acknowledges the validity of critiquing the premises of Mode 1 knowledge. Mode 2 also

recognises the inability of legal formalism to devise an adequate response to contemporary

problems such as domestic violence or sexual assault. It recognises that the subjectivity of

women’s experiences, for example, is a relevant source of knowledge. By seeking exclusively

technocratic solutions to social problems, law, in its Mode 1 sense, endeavours to slough off

uncertainty and affectivity, as well as discomfiting questions as to the ethical significance of its

role.

There is an ongoing struggle between Mode 1 and Mode 2 knowledges within all

disciplines but the struggle is acute in law, where there is a significant ideological investment in

adhering to Mode 1. The conservative view is that it is not possible to learn simultaneously how

to think like a lawyer and to engage in a critique of law’s premises.4 The progressive view is that,

in the absence of critique and interrogation, the study of law is reduced to a mechanistic exercise.

While freedom to teach is understood to be a key site of academic freedom, this freedom has

rarely been understood to extend to law because certain presuppositions prevail. It is therefore

difficult to dislodge Mode 1 knowledge in law from its central position. Mode 1 knowledge

should nevertheless not be thought of as static and unchanging for it is constantly challenged by

the heterarchy of Mode 2. Legal education is exceptionally sensitive to changing community

values. The idea of legal education as training for citizenship once reflected the prevailing view of

the lawyer as ethical community leader.5 Now, only credentialism, vocationalism and

commodification count because they embody the neoliberal values in vogue.

Neither legal knowledge, nor any other form of knowledge for that matter, is immune

from the social. It is one of the intractable myths of legal positivism that law is autonomous and

can be intellectually separated from the social forces that animate it. In fact, the persistent

abrasion caused by the interaction of the social with legal formalism produces a new form of

3

4

5

Gibbons Michael, Limoges Camille, Nowotny Helga, Schwartzman Simon, Scott Peter and Trow Martin The New

Production of Knowledge: The Dynamics of Science and Research in Contemporary Societies Sage London 1994.

Duncanson Ian ‘Legal Education and the Possibility of Critique: An Australian Perspective’ (1993) 8 Canadian Journal of

Law and Society 59 at 68.

Eg Pue W Wesley ‘Educating the Total Jurist’ (2005) 8(2) Legal Ethics 208; Kronman A T The Lost Lawyer: Failing Ideals of

the Legal Profession Belknap Cambridge Mass 1993; Glendon Mary A A Nation under Lawyers: How the Crisis in the Legal

Profession is transforming American Society Farrar Straus and Giroux New York 1994.

4

THE DISSOLUTION OF THE SOCIAL IN THE LEGAL ACADEMY

knowledge — namely, socio-legal knowledge. Thus, rather than accepting a dichotomy between

Mode 1 and Mode 2, socio-legal knowledge might be thought of as transdisciplinary knowledge,

akin to women’s studies or cultural studies, for it similarly has recourse to a range of disciplinary

perspectives that provide new ways of seeing. These new forms of knowledge are deeply

threatening to dominant power relations and must be quickly nipped in the bud. As Ian

Duncanson points out, a legal perspective alone is accepted as authentic:

[T]o be authentic, an understanding of law must be from a lawyer’s point of view and that

that privileged perspective can probably be achieved only by someone who has a lawyer’s

credentials.6

The privileging of the legal standpoint in legal education is underpinned by the

prescriptiveness of the requirements of the admitting authorities, which also emphasises Mode 1.

The present national requirements for admission, as specified by the Priestley Eleven,7 assume

that all that counts in the production of the ‘compleat lawyer’ is knowledge of doctrine and

practical skills, for no reference whatsoever is made in the requirements of the admitting

authorities to the significance of the social or the context in which the legal knowledge is located.

The dominant philosophy of legal positivism with its artificial line of demarcation between law

and morality, law and history, law and society generally,8 further entrenches the privileged focus

on Mode 1 knowledge in traditional law programs. It effectively deflects attention away from the

manner in which law is deployed to serve the market economy at the expense of all else.

3. OF HISTORY AND OTHER THINGS

The Department of Legal Studies at La Trobe was established in 1972, and legal studies subjects

were taught to BA students for twenty years. A substantial range of offerings was available, with

particular strengths in feminist legal studies and criminology. Legal studies subjects were the most

popular offerings in the BA program, with approximately 1,000 first year students in 1990. What

was distinctive about La Trobe was its genuine commitment to an interdisciplinary approach to

the study of law and society; it was not merely a matter of paying lip service to the concept. When

I came to La Trobe in 1990, twenty staff held law degrees and twenty identified primarily with

disciplines such as sociology, philosophy, criminology, economics and history. This diversity was

praised by various visitors to the Department, such as the distinguished legal scholar, Professor

Richard Abel of UCLA, who observed in 1985:

6

7

8

Duncanson Ian ‘Degrees of Law: Interdisciplinarity in the Law Discipline’ [1996] GriffLawRw 3; (1996) 5 Griffith Law Review 77 at 80.

This is a shorthand reference to the eleven ‘areas of knowledge’ required for admission within Australasian jurisdictions.

They are: criminal law and procedure, torts, contracts, property, equity, company law, administrative law, federal and state

constitutional law, civil procedure, evidence and professional conduct. See

http://www.lawlink.nsw.gov.au/lawlink/olsc/ll_olsc.nsf/pages/lra_admission

Eg, Hart H A L The Concept of Law Clarendon Press Oxford at 253 note 181.

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THE AUSTRALIAN FEMINIST LAW JOURNAL 2006 VOLUME 25

The Department has an enormous wealth of highly talented, diverse, productive people. In

these terms, it is far better endowed than all but a very few institutions in the world, and

stands comparison with Wisconsin, Berkeley and Oxford.9

Within Australia, it was also accepted that La Trobe was a major asset to the legal academy. This

was acknowledged by the Pearce Committee in its review of Australian legal education in 1987.10

The Pearce Report was critical of the excessive attention paid to doctrine without regard to

context in most law schools, signalling again the ambiguity around the social.

La Trobe socio-legal scholars felt that the Department’s reputation for creative thinking

about law bestowed a particular responsibility on them to enhance the calibre of legal education.11

The fact that the La Trobe focus was not directed to law for practice but law as a social

phenomenon meant that the legal studies curriculum was not subject to acceptance of a

predetermined standpoint, as with the LLB program. The interdisciplinary reputation of La Trobe

was further enhanced by initiatives such as the establishment of the annual Law and History

conference in 1982; the annual Law and Society conference in 1983; the scholarly journal, Law in

Context, in 1983; and the National Centre for Socio-Legal Studies in 1988.

I was delighted to be appointed to a Chair in Legal Studies at La Trobe in 1989, where the

establishment of an innovative LLB programme had been mooted. The appointment also

afforded the opportunity of working with some of Australia’s leading Australian socio-legal

scholars, including Kit Carson, Brendan Cassidy,12 Ian Duncanson, Judith Grbich, Adrian Howe,

Pat O’Malley, Andrea Rhodes-Little and Chris Tomlins, who were subsequently joined by Greta

Bird, Helen Brown, Sandy Cook, Sue Davies, Pete Johnston, Rob McQueen and Ann Orford.

They have all left the School now, but I acknowledge their significant contribution to what, with

the benefit of hindsight, was a high political moment in the history of legal education in Australia.

The opportunity to play a role in a unique programme in which the study of law would be located

within a School of Social Science, where there was a demonstrated commitment to critical socio-

legal scholarship, was very enticing. However, the vision for an innovative law school quickly

evaporated. La Trobe elected to borrow law school curricula from elsewhere, like ‘second-hand

clothes’, rather than ‘dare to be different’.13 The neo-conservativism that goes hand-in-glove with

neoliberalism had begun to manifest itself even before the program began.

9

10

11

12

13

Quoted in Carson W G Blackshield A R and Stamm M J Department of Legal Studies: History, Aims and Objectives La Trobe

University 1985 at 5.

Pearce Dennis Campbell Enid and Don Harding Australian Law Schools: A Discipline Assessment for the Commonwealth Tertiary

Education Commission (Pearce Report) Australian Government Publishing Service Canberra 1987.

Grbich Judith ‘Legal Education at La Trobe: VPSEC Approval to Legal Education at La Trobe University’ Department of

Legal Studies La Trobe University Bundoora 22 February 1991.

Dr Brendan Cassidy died on 10 May 2000.

L’Estrange Giselle ‘The Law Course Is La Trobe prostituting itself?’ SRC Alternative Handbook 1992 Latrobe University

Bundoora 1992 at 9–10.

6

THE DISSOLUTION OF THE SOCIAL IN THE LEGAL ACADEMY

4. THE CHALLENGE OF ADDING IN LAW

Despite the suspicion towards the social in legal education to which I have alluded, La Trobe’s

commitment to socio-legal scholarship was a factor that was central to the establishment of what

was to be the third Victorian law school.14 A submission to the Victorian Post-secondary

Education Commission (VPSEC)15 justified the establishment of a law program at La Trobe in

terms of the desirability of diversity in legal education. The La Trobe program was not going to

be a pale copy of existing programs at Melbourne or Monash, but a distinctive program based on

its socio-legal strengths. In a classic formulation of Mode 2 knowledge, La Trobe:

Proposed a law program as an interdisciplinary study of the law in its social context,

combining and integrating law with the perspectives and intellectual skills of the social

sciences.16

This rationale was accepted by VPSEC. The then Chancellor of La Trobe University, the late

Richard McGarvie,17 a Supreme Court judge and Chair of the Academic Course Appraisal

Committee, was also strongly supportive of La Trobe’s socio-legal orientation. He believed the

training of lawyers in the social sciences was essential in the belief that it would make them more

effective in dealing with contemporary problems:

[Students] need to understand the basic theory of the law and to be able to apply both the

lessons of history and the information generated by the research skills of the social sciences

as to what has been happening in an area in the past and what is likely to happen if particular

changes are made...We are at peril of producing as potential leaders within the legal system

highly efficient technocrats who have learnt nothing from the past and have little notion of

the risks to be averted in the future.18

In my Inaugural Lecture, ‘Portia lost in the Groves of Academe’,19 I addressed the

challenge involved in grafting a law programme onto an established legal studies program within a

school of social sciences. Although earlier institutional attempts to integrate the social formally

into legal education, such as that of the Realists at Columbia and Yale in the 1920s, 30s and 40s

had met with resistance, I was hopeful that the problems encountered in past experiments might

be averted at La Trobe. First, the law program would be located within a School of Social

14

15

16

17

18

19

Deakin also applied and was successful in establishing a law programme at the same time as La Trobe.

VPSEC, which formerly approved new tertiary courses in Victoria, was abolished in 1993 (Tertiary Education Act 1993 (Vic)

s 24).

Victorian Post-Secondary Education Commission Report of Review of Legal Education in Victoria Melbourne 1991 at 9.

Richard McGarvie resigned as Chancellor when he was appointed Governor of Victoria in 1992, a position he held until

1997. He died in 2003.

McGarvie Hon Justice R E ‘The Function of a Degree: Core Subjects’ Paper presented at Law Council of Australia Legal

Education Conference Bond University Queensland 14 February 1991 at 10, 11.

Thornton Margaret ‘Portia lost in the Groves of Academe wondering what to do about Legal Education’ La Trobe

University Melbourne 1991; reprinted in Duncanson Ian (ed), Legal Education and Legal Knowledge (1991) 9 Law in Context

(Special Issue) 9; (1991) 34 Australian Universities Review 26.

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THE AUSTRALIAN FEMINIST LAW JOURNAL 2006 VOLUME 25

Sciences and not artificially cordoned off from the social forces that inform it, as is the case with

a separate faculty of law; secondly, by having students undertake integrated joint degrees in both

law and social sciences, the privileging of legal over non-legal knowledge would be minimised;20

and, thirdly, the teaching of the law program would be conducted by multidisciplinary teams.

Thus, rather than ‘legal scholar as dilettante’, taking disciplinary baubles from here, there and

everywhere,21 La Trobe would have specialist historians, philosophers, sociologists and

economists, as well as lawyers, involved in teaching a dynamic and creative law program.

When approval came from VPSEC to begin the law program, a year’s grace was sought

from the University in order to develop an innovative curriculum but this was disallowed.

‘Stealing a march’ on competitors, rather than developing the most imaginative program, signalled

the corporatised context in which the La Trobe law program had its genesis. In this ultra-

competitive environment, law had become a popular choice for vice-chancellors because of the

seemingly unstoppable demand for law places and the hope that high TER scores would enhance

their university’s student profiles. It was widely believed also that law could be offered ‘on the

cheap’, or taught ‘under a gum tree’, as one commentator had suggested at the time of the Martin

Report in 1964.22 The myth of the appropriateness of an impoverished ‘chalk and talk’ pedagogy

for law made it difficult to obtain internal seed funding for the La Trobe program; even the idea

of a law librarian was initially accorded short shrift.23

An element of diversity in the student body was preserved in the initial admissions criteria,

which required applicants to have completed at least two years of tertiary education and to write a

250-word statement as to why they wished to study law. In fact, most were graduates, which

meant that they were less likely than school-leavers to adopt an unquestioning Mode 1

approach.24 Many came from non-English speaking backgrounds and were the first members of

their families to experience tertiary education. They wanted a legal education that would equip

them with the tools to effect a more just society, rather than merely serve corporate clients.

Indeed, the La Trobe admission practices sought to recognise that only about 50 per cent of all

Australian law graduates entered traditional private practice and remained there after five years.25

This reality justified a focus on education, as opposed merely to training.

20

21

22

23

24

25

Integrated joint degrees were never in fact instituted at La Trobe, but the idea was pursued at Griffith University. See

Berns Sandra ‘Through a Glass Darkly: Legal Education at Century’s Turn’ (2000) 25 Alternative Law Journal 265.

Cf Kerruish Valerie ‘Barefoot in the Kitchen: A Response to Jack Goldring’ (1988) 18 University of Western Australia Law

Review 167 at 169.

Committee on the Future of Tertiary Education in Australia Tertiary Education in Australia: Report to the Australian Universities

Commission (Martin Report) Government Printer Melbourne 1964 Vol II at 57. The Martin Report was the first major state

intervention into legal education in Australia. See Parker Christine and Goldsmith Andrew ‘“Failed Sociologists” in the

Market Place: Law Schools in Australia’ (1998) 25(1) Journal of Law and Society 33 at 34.

The law collection was housed in the general library and the Chief Librarian was of the view that if Law and Legal Studies

had a dedicated law librarian, other disciplines, such as Music and Chemistry, would also want their own librarians.

The average age of the initial cohort in the law program was 29, a decade older than school-leavers. While it is conceded

that some of them were motivated to assume the trappings of thinking like a lawyer as soon as possible, an Honours

degree in Philosophy, Politics or Sociology helps to fend off the legocentric mindset and sharpen critical skills.

The survey of law graduates conducted by Pearce et al in 1987 found that 56.6% of respondents were working in the

private profession, although another 30% were working in employment of an ‘essentially legal’ nature. See Pearce et al

above note 10 in Vol 1 at 24.

8

THE DISSOLUTION OF THE SOCIAL IN THE LEGAL ACADEMY

The difference is crucial, as education necessarily involves interrogation and critique,

whereas training is primarily concerned with memorising and regurgitating known knowledge.

The technical focus of the latter,26 is geared to training at the expense of education. The tension

between training and education is by no means peculiar to La Trobe, of course, since it has

bedevilled the teaching of law since it moved from apprenticeship to the legal academy in the 19th

century. William Twining’s essay, ‘Pericles and the Plumber’, with its imagery of lawyer as

statesman and policymaker versus technocrat graphically captures the schizophrenia that besets

all law schools as they seek to satisfy simultaneously the expectations of two masters: the academy

and the legal profession. Within a neoliberal context, the balance has tipped, for it is training that

is deemed to have superior use value in the market, while education has become a dispensable

luxury.

5. SLOUGHING OFF THE SOCIAL

The law program had barely begun before its distinctive possibilities were being eroded. In a

competitive marketised environment, difference is perceived to be a form of otherness. Managers

assume that newcomer institutions will be unable to compete unless they conform to existing

patterns of orthodoxy and homogeneity. To compete in the legal education market, it is assumed

that the product has to be essentially the same — like breakfast foods — with only a minor

element of differentiation in appearance or packaging. In this environment, La Trobe’s unique

socio-legal strengths were interpreted as inferiority.

To reassure the admitting authorities that the social was not going to overshadow doctrine,

the core curriculum was devised along conventional lines. Initially, there appeared to be space for

diversity in the optional subjects, but tension arose as to whether people without law degrees

could teach law-related knowledge to law students. It was assumed that they could teach legal

studies (the generic descriptor for the suite of subjects offered to BA students), but not law

(which qualified students for admission to practice). Echoing the notion of authenticity to which

I have already adverted, this assumption discounted the idea of interdisciplinarity altogether.

Several excellent socio-legal scholars saw the writing on the wall and left. With their departure,

the equilibrium that had existed within the Department for so long between law and other social

science disciplines began to fragment. The rift was accentuated with the appointment of several

traditional ‘black letter’ lawyers deemed to be necessary to teach the core subjects, which were

conceptualised in conventional Mode 1 terms along the lines determined by the admitting

authorities. The funding for these positions was made available by the Vice-Chancellor and the

appointments overseen by the Dean of Social Sciences.

The following decade saw the development of a number of specific strategies that further

eviscerated the opportunity of La Trobe realising the vision of becoming a unique law school.

The most significant involved an act of restructuring, the paradigmatic sign of the corporatised

26

Thornton Margaret ‘Technocentrism in the Law School: Why the Gender and Colour of Law remain the Same’ (1998) 36

Osgoode Hall Law Journal 369.

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THE AUSTRALIAN FEMINIST LAW JOURNAL 2006 VOLUME 25

university. Legal Studies lost its social science orientation when its former partners, Politics and

Sociology, were assigned to the Faculty of Humanities and Social Science.27 Legal Studies was

placed in a new disciplinary cluster, which included Economics and Business, as well as

Management, Hospitality and Tourism. The Department of Legal Studies became the School of

Law and Legal Studies within the Faculty of Law and Management, a nomenclature that

symbolised the faculty’s new ‘professional’ character’, where law was expected to facilitate

business rather than critique it. The general characterisation of law and legal studies as a social

science and/or humanity was rejected altogether. Within the new disciplinary constellation, little

sympathy was evinced for the social, the theoretical and the critical, especially for the School’s

outstanding strengths in feminist and criminological scholarship. These offerings began to be

‘rationalised’, which effectively meant the dismantling of the socio-legal curriculum. Critical

subjects were replaced with doctrinally-oriented, atheoretical and asocial subjects, deemed to be

appropriate for law students, as Adrian Howe dryly informs us in an account of the handling of a

sex/crime subject proposal:

In the subject approved by management,28 all references to theory, feminism and violence

were excised. I conceded, just to get it through, but even then I had to prove that I

understood the distinction between a criminology and a criminal law elective. The message

was clear: social science perspectives were not to impact on the law program. The subject

description was altered quite dramatically in order, I suppose to bring it down to the

appropriate level of numbingly dull generality...A memo from management noted that there

was too much emphasis on ‘secondary’ (read: critical socio-legal) readings...Law electives

had to be generalist, dull and doctrinally orientated. The more black letter the law the

better.29

The new faculty structure also accentuated competition rather than collaboration, so that

legal studies students from Humanities were less warmly welcomed than they once had been.

‘LawMan’ wanted to operate as a discrete academic and financial entity, a factor that underscored

its resistance to the social and the critical. Economic rationality was the new norm which involved

admitting large numbers of students who could be processed cheaply through an old fashioned

‘sage on the stage’ pedagogy. Commodification and credentialism rendered the scholarly

substance incidental.

27

28

29

It is notable that Politics and Sociology scholars were not subject to the extraordinary disciplinary controls to which those

in Legal Studies were subjected. On the contrary, the social critiques of prominent scholars, such as Dennis Altman, Peter

Beilharz, Judith Brett, John Carroll and Robert Manne, were extolled. See also the collection of essays profiling La Trobe

Humanities and Social Science scholars, Beilharz Peter and Manne Robert (eds) Reflected Light: La Trobe Essays Black Inc

Melbourne 2006.

‘Management’ is a generic term that tends to have replaced ‘administration’ in the corporatised university. Unlike the

typical faculty of law, the School of Law and Legal Studies, like other disciplinary units within a mega-faculty, possessed

comparatively little autonomy. All courses were subject to extensive scrutiny at each level of the hierarchy: school, faculty

and central university level.

Howe Adrian ‘Law out of Context (or who’s afraid of Sex and Violence in Legal Education?)’ (2000) 25 Alternative Law

Journal 274 at 277–278.

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THE DISSOLUTION OF THE SOCIAL IN THE LEGAL ACADEMY

6. ‘ORGANISATIONAL CHANGE’

The formal turn in favour of business and commercial law occurred in 1999 with the release of

the Mortley Report,30 which resulted from a review of the Faculty of Law and Management by

former Bond University Vice-Chancellor, Raoul Mortley, an Ancient Greek and Roman

philosopher. Professor Mortley had been invited to La Trobe to conduct a review of the

Department of Philosophy. His experience as a vice-chancellor was cited as proof of his expertise

in management that equipped him with the skills to review the Faculty of Law and Management.

In this capacity, he was able to recommend the rejection of the social in favour of applied

commercial knowledge as the appropriate direction for the School of Law and Legal Studies.

The report was a relatively brief document, only four pages of which were devoted to Law

and Legal Studies. It found that a ‘cognitive dissonance’ existed between staff and students

regarding the nature of the law curriculum and its linkage with the legal workplace. The students

interviewed were the office holders of the student law society. They espoused the conservative

view that the La Trobe program needed to imitate its neighbours, rather than accentuate its

distinctiveness, in the belief that isomorphism would enhance students’ chances in the legal

labour market. To an extent, this has always been the case but has become more pronounced of

late. As students pay higher fees for their education, it is inevitable that they reconceptualise

themselves as consumers entitled to consumer rights.31

The Mortley Report acknowledged the international reputation of the School in respect of

socio-legal scholarship, but took the view that this strength had to be rejected because it no

longer comported with the professional and vocational approach deemed appropriate for the

2000s. It stated that the change of direction in favour of professional practice was ‘not

proceeding fast enough, and that ... many of the staff ... [were] not fully equipped to teach the

law as practised [my italics].’ To remedy this assumed failing, the Report recommended the use of

‘exit packages’ for socio-legal scholars and their replacement with more ‘professionally-oriented’

law teachers, supplemented by the appointment of practitioners as adjuncts. Trade practices,

competition law, intellectual property and tax were singled out as appropriate areas of

specialisation for new appointments. (It was apparent that the existing feminist tax course did not

qualify).

The Mortley Report accepts the existence of a sharp line of demarcation between Mode 1

and Mode 2 knowledge, as well as the positivistic belief that any approach other than the self-

referentialism of technocratic legal knowledge detracts from the calibre of the legal education

being offered. One purpose of the report was to effect a change of direction for the School in

order to maximise the amount of revenue that could be generated. The law discipline is not

renowned for bringing in substantial research income, as with biotechnology, for example, but for

producing high status graduates cheaply. The facilitation of business in the new knowledge

economy was believed to be the most lucrative path, rather than that represented by the School’s

strengths in socio-legal studies, although the income-generating aim was never made explicit.

30

31

Mortley Raoul The Faculty of Law and Management at La Trobe University La Trobe University Melbourne 1999.

Arthurs H W ‘The Political Economy of Canadian Legal Education’ (1998) 25(1) Journal of Law and Society 14 at 21.

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THE AUSTRALIAN FEMINIST LAW JOURNAL 2006 VOLUME 25

A Chair in commercial law was recommended, which was approved and advertised soon

afterwards. Ironically, a special emphasis on commercial law was identified as the distinctive

contribution that Deakin University (another Victorian university) could make to diversified

program objectives when it applied for approval of its law program at the same time as La Trobe.

The ‘interdisciplinary study of the law in its social context’, La Trobe’s supposedly distinctive

contribution, was to be eviscerated in less than eight years. But institutional memories are short

and few seemed to care any longer about distinctive contributions to ‘diversified program

objectives’ within the prevailing neoliberal climate. Government policy had included dramatically

cutting the operating grants of public universities, which compelled them to embark on

entrepreneurial activities in order to survive.32 The dramatic increase in the number of Australian

law schools — from 12 to 30 in less than fifteen years — was a direct result of the changed

policy.

The Mortley Report assumed a peculiar valency as it began to be invoked against

disfavoured socio-legal and feminist scholars who were assumed not to satisfy the ‘professional

practice’ imperative. As a result, several scholars resigned and departed for greener pastures. The

most contentious incident in the wake of the Mortley Report involved the application of the

mooted ‘exit packages’ policy to some staff in the ‘law in context area’. Six tenured La Trobe

socio-legal academics, whose contributions to the School had enhanced its international

reputation, were notified that they held one of six positions identified as being in the `Legal

Studies area’ , and that four of these positions were to be excised from the School’s

establishment. As well as being noted scholars, they were inspiring teachers who had attracted,

challenged and excited a generation of students. The termination of their employment was

euphemistically referred to as ‘organisational change’. No reasons were ever given for the action,

but it was announced that when the University had dispensed with their services, new staff would

be appointed, a stance that was at odds with the guidelines for redundancies drawn up by the

National Tertiary Education Union (NTEU).

It is notable that five out of the six who were targeted were women, the majority of whom

were feminist scholars. Feminist scholarship seems to evoke a particularly virulent response on

the part of neo-conservatives.33 Not only does it disturb the neat categories favoured by legal

positivism in a way that echoes Mode 2 knowledge generally, but it is also personally confronting

to those who would rather not be reminded of the ways conventional masculinist practices

continue to prevail in the modern university, despite its embrace of the rhetoric of EEO. While

social liberalism once paid lip service to feminist scholarship in the name of tolerance, the

32

33

The policy of compelling public universities to rely on student fees and other forms of revenue became the modus

operandi of neoliberal governments everywhere, although Australia most fervently embraced the user pays policy. See, for

example, Marginson Simon and Considine Mark The Enterprise University: Power, Governance and Reinvention in Australia

Cambridge University Press Cambridge 2000.

Eg Maddox Marion God under Howard: The Rise of the Religious Right in Australian Politics Allen & Unwin Sydney 2005; Sawer

Marian ‘Populism and Public Choice in Australia and Canada: Turning Equality-seekers into ‘Special Interests’ in Sawer

Marian and Hindess Barry (eds) Us and Them: Anti-elitism in Australia Curtin University and Academy of Social Sciences in

Australia Perth 2004; Summers Anne The End of Equality: Work, Babies and Women’s Choices in 21st century Australia Random

House Australia Sydney 2003.

12

THE DISSOLUTION OF THE SOCIAL IN THE LEGAL ACADEMY

brutality of neoliberalism dispensed with any need at pretence.34 To compound the sense of

uncertainty and insecurity engendered by the retrenchments, one of the six was told that her

inclusion was a ‘mistake’ and her name was then removed from the list.

Although I was the associate supervisor of five of the six persons on the list,35 I was not

consulted at any time about their mooted inclusion. I challenged the irregularity of the procedure

and argued that it was flawed on a number of grounds, including denial of natural justice and sex

discrimination. Senior management then undertook to consider the relative performance of all

staff and I departed for a period of pre-arranged study leave in London. However, no review ever

took place and my erstwhile colleagues left the School.

Upon my return, I continued to seek reasons, but to no avail. The tacit assumption was

that the shift to a commercial/applied orientation was an unequivocal good that trumped

positional goods arising from international reputation in socio-legal feminist scholarship, the

securing of competitive grants, the effecting of liaisons with overseas institutions, the supervision

of the majority of the School’s Honours and PhD students, and exemplary undergraduate

teaching. What was most startling was the readiness of otherwise progressive colleagues to go

along with the scapegoating. One can only speculate as to whether this was out of fear that they

might be the next to be targeted or for some other reason. While depoliticisation is a noted

characteristic of neoliberalism, there seemed to have been more than disengagement at work here.

Other measures designed to consolidate the evisceration of the social and the

transformation of the School followed. The School name was changed from ‘Law and Legal

Studies’ to ‘La Trobe Law’. The arguments I adduced regarding the distinctiveness of legal studies

to the La Trobe ‘brand name’ fell on deaf ears. Finally, the teaching of legal studies to BA

students was transferred to the School of Social Sciences within the Faculty of Humanities and

Social Sciences,36 along with two of the remaining socio-legal scholars. The potential for the

exploration of the social in social sciences was deemed to be acceptable by university

administrators, whereas it could only wreak havoc in law.

While legal studies was being run down, the LLB programme was boosted in accordance

with the applied focus. A transfer of student places was effected from the BA to the LLB

program in order to augment university coffers, as law students are funded at a higher rate

according to the Department of Education, Science and Technology (DEST) formula. The

number of law students admitted also sharply increased. In 1992, 70 law students were admitted;37

34

35

36

37

Former La Trobe academic, James McConvill, reported to The Australian that the head of the law school had sought to

hire him as he was ‘keen to clean out the feminists’. See Merritt Chris ‘Loopy Left forced my resignation, says legal

academic’ The Australian 24 October 2006 at 5.

Under what was known as the Performance Enhancement and Development Scheme (PEDS), effected between the

NTEU and the University, all staff had a supervisor with knowledge of their research field who would advise the staff

member about research, publishing and teaching. The supervisor was also supposed to ensure that the staff member met

realisable productivity aims in the coming year. The Head of School retained the formal supervisory role, which carried

legal obligations with it.

The School of Social Sciences also assumed responsibility for the Bachelor of Legal Studies program.

The original proposal had specified an annual intake of 70 EFTSU in the law programme 70 EFTSU in the BLS program,

in addition to the 1st year intake for the BA program.

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THE AUSTRALIAN FEMINIST LAW JOURNAL 2006 VOLUME 25

by 2006, this figure had increased 5-fold.38 In addition, full fee-paying domestic law students were

taken into the LLB for the first time. Following the Mortley Report, full fee-paying Masters

degrees in Global Business, International Business and Law, and Conflict Resolution had been

introduced in accordance with the enterprise turn.

The ever increasing numbers of students have caused a movement away from small group

teaching and reflective essay-writing to lectures and exams. The passive pedagogy subtly

emphasises a focus on known knowledge and its memorisation in accordance with the

credentialism mentality, leaving little space for the questioning voice and the uncertainties of the

social that a small-group, interactive pedagogy recognises. The ‘massification’ of legal education

has resulted in a similar shift from education to training everywhere, with a correlative focus on

Mode 1 knowledge, but the change has been striking at La Trobe because of its sometime

commitment to interdisciplinarity, theory and critique.

As one of the few remaining socio-legal scholars at La Trobe in the post-Mortley era, I had

some rather strange experiences myself, culminating in being directed to move to Spanish. (One

former student asked whether it was the department or the country that La Trobe had in mind!)

While a strong proponent of interdisciplinarity, I felt that this was stretching things too far in

light of my lack of Iberian knowledge and I accepted an offer from the ANU.

During the dark years, I acknowledge the support received from many wonderful students

— undergraduate, Honours and postgraduate — as a source of strength and satisfaction. Their

path-breaking work in socio-legal scholarship, especially in the areas of critical race and gender

studies, has made a significant contribution to legal knowledge. I congratulate them all but would

particularly like to acknowledge Wayne Atkinson’s achievement in being the first Victorian Koori

to receive a PhD.

7. CONCLUSION

The comparison between the experience of the American Legal Realists and that of socio-legal

scholars at La Trobe is worth making, although I do not wish to overstate the case, given the

status of Columbia and Yale as prestigious Ivy League institutions. The comparison attests to the

fact that there have been remarkably few genuine attempts in legal education anywhere in the

common law world to realise the full potential of law as a social science that has entailed

challenging successfully the ‘profession’s intellectual orthodoxy’.39 I do not discount the

widespread endeavours by individuals and small groups, but stress the novelty of a critical mass

crystallising into institutional support — albeit briefly.

38

39

In 1991, 350 EFTSU was envisaged as the total enrolment in the law program, not the annual intake.

Harry Arthurs’ phrase in making the same point about the paucity of revolutionaries in the Canadian legal academy.

Arthurs above note 32 at 20.

14

THE DISSOLUTION OF THE SOCIAL IN THE LEGAL ACADEMY

The Realists were reacting against the law-as-science movement that was developed by

Langdell at Harvard in the late 19th century.40 Just as socio-legal scholars at La Trobe were

resisting legal positivism, doctrinalism, black letter law and the various incarnations of Mode 1

knowledge, the Realists recognised that law could never be an exact science that was value-free.

What they did, first at Columbia and then at Yale, was to design a curriculum that sought to

integrate law and the social sciences. As at La Trobe, the attempt was to be shortlived. At

Columbia, there were disputes over the role of the social sciences and the purpose of legal

education. Yale took Realism more seriously in appointing a team of interdisciplinary scholars,

but World War II and the Nazi experience contributed to its collapse.41 After the War, Lasswell

and McDougall built upon the Realist experience in their development of ‘policy science’ at Yale.

They attempted to broaden the curriculum to accommodate the fact that many law graduates

gravitated to destinations other than private practice, particularly public policy employment.

However, the initiatives of Lasswell and McDougall resulted in an inquiry by Yale University.

They were accused of not teaching law. Doesn’t it sound depressingly familiar?

The American Critical Legal Studies (CLS) movement picked up where the Realists left off

in the 1970s and 80s. While the movement comprised many strands, there was unanimity about

critiquing and questioning every facet of the legal order.42 CLS was also subject to trenchant

opposition from the legal establishment and, in one controversial article, a law school dean

recommended that CLS scholars should remove themselves from law schools altogether.43 More

recently, right-wing attacks on critical scholars have sought to sow the seeds of distrust among

the public at large. Harvard Law School has been accused of being populated by ‘racial

demagogues’ and ‘Marxist-inspired’ professors by conservative populists.44

Closer to home, Macquarie University, where a critical mass of scholars espoused a CLS

approach to legal education from its inception in the mid-1970s was subjected to vitriolic attacks

from conservative members of the legal profession and the media.45 The Pearce Committee in its

review of Australian legal education went so far as to recommend that Macquarie be closed down,

despite the fact that it came closest to the critical contextual model that Pearce actually advocated

for legal education.46 The gap between the rhetoric and the reality rarely seems to narrow;

integration of law and the social is exhorted, but any attempt to do more than make a tokenistic

gesture in the direction of law and society meets with resistance.

The impetus to return legal education to a rules-oriented approach usually emanates from

the legal profession as soon as a law school broadens its curriculum. Rochette and Pue recount

some examples from Canada in the 1980s and 90s of Provincial law societies complaining that

40

41

42

43

44

45

46

Stevens Robert Law School: Legal Education in America from the 1850s to the 1980s University of North Carolina Press Chapel

Hill 1983.

Kalman Laura Legal Realism at Yale 1927–1960 University of North Carolina Press Chapel Hill 1986.

Kairys David (ed) The Politics of Law: A Progressive Critique Pantheon Books New York 1982.

Carrington Paul ‘Of Law and the River’ (1984) 34 Journal of Legal Education 222.

Eg Thomas Andrew Peyton The People v Harvard Law: How America’s Oldest Law School turned its back on Free Speech

Encounter Books New York 2005.

See eg Australian Journal of Law and Society, Special Legal Education Issue 5 (1988–89).

Above note 10 in Vol 3 at 947.

15

THE AUSTRALIAN FEMINIST LAW JOURNAL 2006 VOLUME 25

students ‘don’t learn any law anymore’.47 The UK Law Society voiced similar concerns as British

law schools moved away from a narrow doctrinal legal education.48 Practitioners frequently have

unrealistic expectations that law graduates possess expertise in every aspect of doctrine. If not,

they complain that the inadequate grounding in ‘substantive law’ renders them unfit for

admission to practice.

One of the most scathing attacks from the professions in Australia came from Roderick

Meagher, a former president of the NSW Bar Association and subsequently a judge of the NSW

Supreme Court, who described contemporary legal academics as ‘failed sociologists’ who ‘scribble

and prattle relentlessly about such non-subjects as criminology, bail, poverty, consumerism,

computers and racism’.49 Attacks of this kind by senior members of the profession strike fear in

the heart of university managers since they are the very people from whom law schools

desperately seek approval for their programmes. The narrow ‘back to basics’ model of legal

education is internalised by law students,50 which acts as a very effective policing mechanism,

particularly in light of students’ increased consumer power. Credentialism, understood in

orthodox terms that appeals to practitioners is believed to offer the best chance of employment

and a secure future.

I recognised in my Inaugural Address that the signs for an innovative law school were not

propitious, as any far-reaching critique and interrogation of the legal order is perceived as a threat

to the powerful interests served by law, whatever the prevailing climate. While students may

explore reformism and alternative ways of proceeding, in the end the admitting authorities

demand deference to the basic presuppositions of law. To tinker at the edges or to move things

around a little is acceptable, but to interrogate and destabilise those basic presuppositions is

regarded as a form of heresy. The role of law in a marketised political economy is very explicit. It

is expected to facilitate business, not question it: interrogation is now an impost on business. The

dissolution of the social can therefore be seen to be ideologically laden. The contemporary move

away from thinking and critique to a practice-oriented law curriculum accords with the general

neoliberal trend, found not just in Australian law schools, but throughout the common law

world.51

Despite the ostensible failure of the Realists and successive waves of critical scholars

within their institutions, it is recognised that they nevertheless exerted a significant impact on

legal education, with the result that the teaching of law in context became normative. By 1990, it

47

48

49

50

51

Rochette Annie and Pue W Wesley ‘“Back to Basics”? University Legal Education and 21st Century Professionalism’

(2001) 20 Windsor Yearbook of Access to Justice 167 at 172.

‘Law Degrees under Scrutiny’ Financial Times 6 February 2001at 7

http://www.admin.cam.ac.uk/news/daily/archive.cgi?981331200 (accessed 13 October 2006); Vignaendra Sumitra Social

Class and Entry into the Solicitors’ Profession Research Study 41 Law Society London 2001 at 6.

Quoted in Weisbrot David Australian Lawyers Longman Cheshire Melbourne 1990 at 11. For a thoroughgoing analysis of

the contradictions for legal education inhering in the ‘failed sociologists’ sobriquet, see Parker and Goldsmith above note

22.

Rochette and Pue above note 47 at 188.

This finding arises from the author’s research on the Neoliberal Legal Academy funded by the Australian Research

Council. See also James Nickolas J ‘A Brief History of Critique in Australian Legal Education’ (2000) 24 Melbourne

University Law Review 965.

16

THE DISSOLUTION OF THE SOCIAL IN THE LEGAL ACADEMY

looked as though the timing was right for a radically different type of law school in Australia, but

no one envisaged the tsunami-like effect of the Dawkins reforms (the combination of the

creation of the unified national system of higher education,52 together with mass education and

under-funding). As mentioned at the outset, I am not seeking to exonerate entirely the decision-

makers who played a role in the excision of socio-legal scholarship at La Trobe, but suggest that

their acts became enmeshed in the web of governmentality created by the corporatised

behemoths that are our universities. The increased reach of managerialism caused resistance to be

ineffective.

Nevertheless, Mode 2 knowledge cannot be kept docile and tractable indefinitely. The

unruly nature of the social causes it to bubble through whatever apertures it can find and corrode

Mode 1 knowledge. The impending Research Quality Framework (RQF) that is mooting the

assessment of the quality, not just the quantity, of scholarship,53 threatens to unleash the social in

new ways because doctrinal exegesis simply does not measure up as excellence in research, as the

UK Research Assessment Exercise (RAE) experience has demonstrated. The substantial

monetary rewards associated with the RQF may induce a formal recognition of the social on the

part of university managers once more. However, I am not holding my breath. British socio-legal

scholars fared well only when ‘peer review’ included knowledgeable and sympathetic peers on the

panel. Now, the RAE is proposing to revert to a metrics-based system,54 which presumably

comports better with the technocratic and depoliticised façade of neoliberalism. The

contentiousness and mutability of new knowledge means that it can never be relied upon.

The vibrancy of new incarnations of socio-legal scholarship, such as law and literature,

postcolonial and whiteness studies, sexuality studies, cultural studies, and law and the humanities,

may offer more hope for a transformative vision as these new areas are exciting a new generation

of legal studies scholars. Thus, if the RQF is not the catalyst for change, it could be something

else, although whatever it may be, it is likely to be fiercely resisted by the guardians of orthodoxy.

Even if the effect of change is transient, the abrasive effect of the social on Mode 1 knowledge

cannot be ignored. It is hoped that the new generation will draw what lessons they can from the

La Trobe experience and be inspired by a sense of continuity and connection. Most significantly,

52

53

54

Dawkins’ singular act was to bring about an end to the binary system of higher education in 1988, which meant that,

overnight, all colleges of advanced education became universities. See Dawkins Hon J S Higher Education: A Policy Statement

(White Paper) Australian Government Publishing Service Canberra 1988. Dawkins’ initiative was replicated in Britain in

1992 when polytechnics were abolished.

Expert Advisory Group for the RQF Final Advice on the Preferred RQF Model (Research Quality Framework: Assessing the

Quality and Impact of Research in Australia Commonwealth of Australia Canberra 2005. At the time of writing, another

advisory committee had recommended that the focus should be on impact rather than quality, a process that can only

‘reward mediocrity’. See Gallagher Michael ‘Flawed RQF has lost sight of objectives’ Higher Education The Australian 11

October 2006 at 30.

The new system is proposed to come into effect after the 2008 RAE. It has been strongly criticised by the academic

community, including for the way the system privileges quantity over quality and the inappropriateness of citation indexes

in law. See, for example, Response by the Society of Legal Scholars (SLS), Reform of Higher Education Research Assessment and

Funding 2006 http://www.legalscholars.ac.uk/pubdocs/05/rae_sls_response.pdf Steele points out that the Thomson

Index picks up less than 10 per cent of legal publishing, compared with more than 90 per cent in physics and chemistry.

From the Australian perspective, he also notes the northern hemisphere bias in the journals indexed. See Steele Colin

‘Research with Purpose’ Higher Education The Australian 7 June 2006.

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THE AUSTRALIAN FEMINIST LAW JOURNAL 2006 VOLUME 25

justice demands that they do not give up on legal education in favour of the sway of market

orthodoxy.

18