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Alternative Law Journal |
John C.W. Touchie and Scott Veitch
John C.W. Touchie teaches law
at Griffith University.Scott Veitch is a reader in law at Glasgow
University.
The aim of this article is twofold: to document some of the recent happenings at the School of Law at Macquarie University and to relate these events to wider issues in legal education and legal theory. The remit of this article is necessarily somewhat limited: the Macquarie Law School has, without a doubt, a rather colourful, and tumultuous, history, but here we focus for the most part on recent events.
We should note the rather obvious point that this article is coming from our own particular perspectives as two former lecturers at the Macquarie Law School. We might also note that neither of the authors were members of what emerged as the two primary combatant elements in the most recent conflicts at the Law School. Whilst this should not be seen to imply any false impartiality — as people know it is hard to stay above the fray — it is nonetheless in part a cautionary tale and one we seek to tell in the context of the current state of the academy, with particular reference to legal values and their local meaning and worth.
Macquarie University, as with many other universities in Australia, has recently undertaken a substantial restructuring in both its academic and administrative aspects. Imagine however, the following came to you as a proposal for restructuring: ‘University faculties from now on will not be based on traditional academic divisions, such as physical sciences, social sciences and humanities, but on what would allow every one of us to work most closely with those who share our views on the ways to deal with the pressures which have been placed on all public universities. It would be greatly appreciated if academic staff from all traditional academic disciplines could find people they get along with in this regard, regardless of disciplines, and to this end we will have facilitative morning tea and cake meetings attended by our personnel psychologists. Once suitable bonding has occurred we shall then proceed to institute faculties accordingly. We believe this to be in the true spirit of interdisciplinarity, and you should see yourselves as taking part in one of the most innovative university programs in history.’
Innovative indeed! Challenging, historic and radical too, but how warm, how decent, how damned comforting! But maybe too radical, too far-fetched? Perhaps not for Macquarie, ‘Australia’s innovative university’. In June 1998, a majority of legal academics put forward a proposal for departmentalisation in the School of Law along these lines: ‘The departments would not be based on traditional academic divisions, such as public and private law, but on what would allow every one of us to work most closely with those who share our views on the ways to deal with pressures which have been placed on all public universities’.[1] Pick who you get along with and form yourself into a group: it doesn’t matter if one teaches contract, tax, constitutional or environmental law, it’s people that count. How friendly and caring.
Imagine subsequently, that some people have the incivility, the indecency to question this proposal. They say it lacks adequate academic justification, that no sound academic arguments have been made for it. That on the personalised — as opposed to academic — terms proposed, as the old joke has it, they wouldn’t want to be part of a group that would have them as a member. Well, of course, the response would seem to be that times have changed and this is simply no longer the point. Personality is the name of the game now and those who have the wrong type can no longer play. So...off with their heads!
Not quite. But in December last year, eight legal academics were excluded from the Division of Law at Macquarie, being placed instead within a yet-to-be-announced grouping within the Humanities. This was despite the fact that constitutional law expert Professor Tony Blackshield, while supporting the proposal to exclude, stated publicly there were ‘no academic justifications’ for the exclusion, and that remedies expert and legal historian Professor Bruce Kercher, also supporting the proposal, said ‘there are no academic reasons’ for it. Nor were there any administrative justifications put forward to support the move. The exclusion was given the necessary impetus by Di Yerbury, the Vice-Chancellor (who had previously suggested all restructuring would take place on academic grounds[3]) and John Loxton, the Deputy Vice-Chancellor (Academic), members of the University Council voting in support of the proposal by nine votes to seven.
How has this come about? How has this institutional apartheid been allowed to happen? And what are the costs for universities and for academic debate generally? It is to these questions, among others, that we now turn.
Writing of what he takes to be the most prominent and influential doctrine in moral philosophy in the late 20th century, Alasdair MacIntyre has written that:
Emotivism is the doctrine that all evaluative judgments and more specifically all moral judgments are nothing but expressions of preference, expressions of attitude or feeling, insofar as they are moral or evaluative in character ... agreement in moral judgment is not to be secured by any rational method, for there are none. It is to be secured, if at all, by producing certain non-rational effects on the emotions or attitudes of those who disagree with one ... [It] entails the obliteration of any genuine distinction between manipulative and non-manipulative social relations ... [and] the contrast between power and authority, although paid lip-service to, is effectively obliterated as a special instance of the disappearance of the contrast between manipulative and non-manipulative social relations.[4]
This scenario seems equally to cover the nature and terms of the restructuring/exclusion argument — if indeed it can be called that — that won out at Macquarie. Merely replace ‘moral’ with ‘academic’. The obliterated distinction — between treating people as means and as ends — was effected and any reference to transcendent values of academic merit and tradition, or of equity and the rule of law, also went by the way. Personal preference rather than academic reasoning became paramount. And worse, it succeeded.
There are in this context, we believe, a number of striking features of the events at the Macquarie Law School that merit closer attention. First is that rather surprising admission, made by a number of members of the School, including (as we have just mentioned) two of its professorial members, that the restructuring, in both its intermediate and final incarnations, had no academic merit. This is particularly ironic given the findings of a review panel of the Law School in 1995 which emphasised, in relation to school governance, that the ‘over-riding objective should be to foster an acceptance of diversity of view, opinion, and academic approach within the School’. This claim for academic plurality came most strongly from those who had, until then, felt excluded from the School’s decision-making processes. Yet pluralism seemed to lose its appeal — as it often does — when the power balance shifted in favour of these same individuals. Plus ça change ...
Second comes the general lack of regard paid to the basic principles of procedural fairness (natural justice) during the process of restructuring – principles that one might have thought would have been especially familiar, and of particular importance, to those trained in law.
We will examine each of these in turn.
Notwithstanding the lack of positive academic arguments, that there could be negative, harmful, academic consequences that would flow from such an exclusion seems obvious. One would have thought that locating legal academics outside a Division of Law would have the substantive effect of effectively excluding these academics from their discipline.[5] The astonishing and revealing fact that members of the excluded group have recently been informally told that this exclusion entails — for academic reasons? — that they must leave their offices in the Law Building and move to another location only seems to add to this ostracism. What is the effect of such an exclusion on the credibility of their work within the legal discipline? Presumably substantial, given the inference, open to external observers, that such academics are not worthy of inclusion in a Division of Law. And what would be the impact of such a marginalised group on legal education at Macquarie? One would suspect that it would be minimal. Moreover, as a small group of academics located outside the Division of Law, the eight excluded academics would be poorly placed to gain access to scant specialised secretarial and computer support, and to gain future appointments to their Department. Administratively, then, the move had little to offer. Separate, in other words, but hardly equal.
Besides, as matter of process in academic decision making, the 1995 School Review had also identified that ‘key problems’ were ‘connected with difficult-to-measure notions of trust, exclusion, and the appearance of decisions having been already made,’ problems enhanced by worries about ‘social nepotism’. This of course now sits uneasily with the fact that the original plan to exclude seems to have been discussed over dinner by the Vice-Chancellor and a handful of senior Law School staff. The Head, Deputy Head, and Chair of the Law School and the Head of the soon to be excluded department were conveniently absent.
Most significantly of all perhaps, and so telling by its absence, was the total failure to provide any reasons why or how this exclusion would benefit students. Sadly sidelined from any proper academic consideration, they were sacrificed to the cult of staff personality. The consequences of this are, we believe, yet to be realised.
None of this is to say that there were not some reasons given for such an exclusion. In fact, this move was ‘justified’ by the claim that the behaviour of some, though not all, members of the excluded group was such as to make the workplace so intolerable that other members of the School were unable to do their work. As an open letter to all Law Students from four professors claimed, the lack of collegiality had ‘in our view grown to the point of seriously interfering with the ability of ourselves and many of our colleagues to carry out their teaching and research responsibilities to the University and our students.’[6] This was a curious claim, for a number of reasons.
Foremost among these was that if this was the case, one might have thought that there would be some evidence of such difficulties manifested in staff members’ performance in terms of recent publications, promotions and appointments. Yet to our knowledge, such evidence fails to establish such a connection. Certainly no attempt was made to point to this evidence in an attempt to justify the exclusion. Nor was any attempt made to provide evidence of past conduct, and formal or informal complaints, which might have provided a justification for the exclusion of legal academics from a Division of Law.
Now, the argument that such evidence could be produced is, we believe, not the point. The issue, we think, hinges on the fact that such a rational justification was not in fact forthcoming, and hence the possibility of critically considering and evaluating such evidence — either within the School or within the University — was precluded. The failure, not only by those alleging such behaviour, but the complicity of the University Executive (headed by Yerbury) in it, essentially removed the possibility of rational debate on that issue, and, therefore, on the academic issue of restructuring itself. Given that such evidence was the lynchpin around which the exclusion turned – the allegation being that of ‘uncollegial conduct’ by some – it strikes us that we are entitled to conclude that such a move, based as it was on unsubstantiated rumour and innuendo, was both improper, unfair, and involved guilt merely by association. Moreover, given the ubiquitous restructuring of academic institutions ongoing these days, the precedent set by such an uncritical, unsubstantiated, and prima facie procedurally improper, reorganisation is an ominous one indeed.
That such a precedent could be set, supported by a paucity of substantial evidence and academic justification, and combined with an effective silencing of rational critique, is highly disturbing. But that this would be carried out by those who teach legal methods, whose finely honed speciality — indeed, some at a professorial level — is grounded on a heightened sensitivity to such considerations, is alarming. Especially so, given the fact that such considerations were highlighted, in detail and on a number of occasions, to the individuals who avidly pursued such an exclusion, all to no avail.
So what, then, were the reasons for the exclusion of certain legal academics from the newly created Division of Law? From our perspective, the only answer that remains is that the move was based primarily on personal animosity, an opportunism made feasible by restructuring, and by a desire, in our opinion misplaced, to eliminate discomfort through whatever means possible. As one memo so revealingly, and so depressingly, put it, the Law School had become less a place of academic rigour, than an ‘ego massage parlour’. Its function was to provide a comforting environment for certain individuals by constructing a zone where their discomfort was eliminated.
This links to our second point, about procedure. For what seemed to be ignored in all of this is that discomfort can come from a variety of sources, not all of which should be eliminated at any cost. It can be discomforting to pursue a formal complaint. There is a cost, in time and effort, to evidencing and carrying through such complaints. It can be costly to ensure that ends and means are well connected, proportionate,[7] and suitable for achieving the best balance of justice and fairness given the context and the circumstances.[8] Yet are these not costs that sometimes should be incurred? Is this not discomfort that sometimes must be endured? Are these not, in fact, the costs of adhering to the ethic underlying the ideal known as the ‘rule of law’? And, if this constitutes the apparent trashing of the value of legalism for the sake of personality, what does such behaviour demonstrate to law students about the role of law and how it differs from the mere exercise of power?
To have a basic disregard for principled justification calls into question the ideals underlying the ‘rule of law’. This is not simply an aspirational ideal in the institutional sphere; rather, it is an ethic that carries over into the personal sphere within workplace environments and elsewhere, an ethic that demands due consideration for substantive and proper rationales for one’s actions. Constitutional lawyers and legal historians, of all academics, should know this. One would have thought critical legal scholars, concerned about the seedier manifestations of power, might also have picked up on it.
Turning one’s back on the idea of living up to a burden of proof, rejecting the calls to adhere to a minimum of procedural fairness — this seems to be the price paid in this case to eliminate discomfort: the discomfort of thoughtfulness, of due consideration, and of the responsibilities demanded by the minimal levels of justice and legality manifested in procedural fairness. The comforting scenario that a Division of Law could be founded on the exclusion of certain legal academics was a delusion, bought at a price and paid for with principle. Surely legal history offers up sufficient lessons of such purchases of comfort, paid for at the expense, discomfort, exclusion and prejudicial treatment of others.
That such discrimination should be institutionalised in a university law school seems particularly ironic given the goal of recent years, and in many countries, to attempt to address and eliminate such entrenched forms of injustice and exclusion. Given these considerations, we are of the view that the price paid for the comfort of some was too high a price to be paid, particularly when one considers the example such conduct sets down for students undertaking studies in law. That such behaviour should take place in a law school only seems to add to the harm done to legal education at Macquarie University.
In the last few months 13 people have applied to leave or already left Macquarie Law School. This is roughly half its staff. Whatever their reasons, and they will vary greatly, the central problem, as we see it, given the scant academic justification for departmentalisation and restructuring, is the institutional terms on which new appointees will come on board. How will the comfort zone be maintained? Maybe the use of personnel psychologists is not too far-fetched.
In this regard, the earlier reference to ‘the ways to deal with pressures which have been placed on all public universities’ is telling. The apparent abandonment of rational argument and academic merit as the two touchstones of university administration does not take place in a vacuum. University teachers and students well know the bureaucratic and financial pressures placed on their working lives. But the decline of academic reason is a major concern for the future of universities in Australia. And it would be a fundamental error to displace this problem as being one of having the barbarians knocking at the door. ‘Power co-opts absolutely’, as MacIntyre puts it, and complicity is the great enemy. For our fear is not that the barbarians are at the door, but that they might already be inside, serving us tea and cake.
A group of five legal academics, including ourselves, have written to the Committee of Australian Law Deans to ask whether they will publicly deplore the exclusion at Macquarie and question the apparent discrimination and neglect of due process. It appears to us they have, as guardians of the legal academy in Australia, a clear and public interest in this matter, though whether they see the issues here expressed as of concern remains to be seen.
References
[1]2 Memorandum circulated at the
Macquarie University Law School, 2 June
1998.
[3] Comments made by the
Vice-Chancellor at her Open Forum on Restructuring, 18 May
1998.
[4] MacIntyre, Alasdair,
After Virtue: A Study in Moral Theory, Duckworth, 1985, 2nd edn,
pp.11-12, 22, 26.
[5] This
notwithstanding the vague promise, put forward at a late stage in the proposal,
that a ‘law institute’ might allow those excluded input to do some
teaching. (Now created. See article by Boehringer on p.30 of this issue:
Ed).
[6] Letter by Professors
Blackshield, Gillies, Jeffery, and Kercher, 6 October 1998. This was a strange
claim in other respects too: Gillies was not even a member of the Law School,
and Jeffery had only just arrived. It is thus
unconvincing.
[7] This criterion is
drawn from constitutional law where, as the discussion in Blackshield and
Williams, Australian Constitutional Law and Theory: Commentary and
Materials, 2nd edn 1998, points out, the test of proportionality ‘has
increasingly been transferred to other contexts’ (p.602), the test being
‘whether the adverse or extraordinary consequences’ are
‘disproportionate to the achievement’ of the relevant purpose
(p.603), assuming, of course, that there is a legitimate purpose. That such a
criterion might be relevant in the present context can be argued from the fact
that the test achieves a heightened importance when these adverse consequences
impact on ‘fundamental freedoms’ or ‘fundamental
values’, such as ‘freedom of expression’
(p.604).
[8] This criterion draws
on one of the fundamental principles underlying equitable forms of relief, as
pointed out in Tilbury, Noone and Kercher, Remedies: Commentary and
Materials, 2nd edn 1993, p.607. It might be pointed out that the importance
of adhering to at least a minimal procedural baseline is presupposed by
discussions of such remedial principles, as acknowledged by the casebook when it
states that ‘a discussion of remedial law assumes that a right has been or
is about to be infringed and that the requirements of procedural law are
satisfied’ (p.3). If these procedural aspects were not in fact satisfied,
this would be all the more reason for scrutinising, with great anxiety, the
impact of the proposed remedy on fundamental freedoms and values.