James, Nickolas John --- "Expertise As Privilege: Australian Legal Education And The Persistent Emphasis Upon Doctrine" [2004] UWSLawRw 1; (2004) 8(1) University of Western Sydney Law Review 1
EXPERTISE AS PRIVILEGE:
AUSTRALIAN LEGAL
EDUCATION
AND THE PERSISTENT EMPHASIS
UPON DOCTRINE
Nickolas John James[*]
Introduction
Those legal scholars interested in the betterment of legal education have been telling their colleagues for decades that the traditional, ‘black letter’ approach to the teaching of law is unsatisfactory. The problem with this approach, they argue, is that there is too much emphasis upon the study of legal rules and insufficient emphasis upon other, equally important, aspects of law such as legal theory, the social and political contexts of law, the interface between the discipline of law and other disciplines, and the unspoken gendered and cultural biases of law as an institution. Within many law courses, however, a black letter approach persists.
This paper offers two explanations for the ongoing emphasis upon legal doctrine. Firstly, a range of historical and social contingencies have contributed to the privileging of doctrine within Australian legal education; these contingencies include the preponderance of doctrinal legal scholarship, a lack of time, expertise and inclination to change on the part of many law teachers, the expectation by law students that they be taught legal doctrine, the university’s expectation of disciplinary heterogeneity, and pressures from the legal profession.
Secondly, and more importantly, an emphasis upon legal doctrine is an expression of Foucauldian power-knowledge which privileges the legal specialist. Few law teachers would explicitly defend a black letter approach to teaching law, but this approach nevertheless persists because many law teachers benefit from its persistence: it accords them power over others and status within the academy and the community, and contributes to the legitimisation of ‘law’ as a discrete and highly prestigious field of expertise.
Legal doctrine
‘Legal doctrine’ is a relatively complex, technical and specialised body of knowledge about law. It is a set of legal rules and legal principles, generally derived from legislation and from case reports, and organised systematically into discrete conceptual fields and hierarchical categories. Legal doctrine typically portrays the law from a positivist perspective: law is a rational and universally applicable phenomenon; the legal system is separate from the political system and from the culture and society in which it operates; logic and reason rather than power and influence determine the outcomes of legal decisions; legal reasoning and legal processes yield a relatively fixed set of correct answers to legal questions; and legal decision-makers can and should remain objective and neutral in their decision-making.
A ‘black letter’ approach to the teaching of law is one which privileges legal doctrine by locating it at the centre of the curriculum and by either positioning non-doctrinal perspectives at the margins or excluding them entirely. Such an approach requires the making of certain assumptions about the nature of legal education: the most important knowledge which students learn at law school are legal rules and principles, i.e. legal doctrine; legal doctrine exists in the textbooks, in the course materials and in the minds of law teachers; legal education is the process of transferring legal doctrine from these sources and into the minds of the students; and a student has successfully learned the law when they can repeat legal doctrine correctly and apply legal doctrine to legal problems to produce correct legal solutions. The word ‘doctrine’ is closely associated with the word ‘indoctrinate’; the objective of a black letter legal education is, literally, indoctrination.[1]
There are very few contemporary legal education scholars who overtly advocate a black letter approach to teaching law. Most legal education scholars are in fact critical of such an approach. The authors of the 1987 Pearce Report, for example, explicitly criticised a narrow focus upon doctrine by stating that
[l]aw school education should not be limited just to imparting knowledge of the law ... there is room for the criticism of some law schools and some areas of their curricula that they are too rule-oriented ... We agree ... that law programs should be concerned with theoretical and critical dimensions, on the one hand, and also to impart understanding of the law in action, on the other.[2]
Margaret Thornton has argued that doctrinalism is inadequate because it results in a knowledge of the law which quickly becomes redundant: an emphasis upon teaching legal doctrine is
likely to induce intellectual myopia because it is designed only to facilitate an understanding of the law as it is now; it is not designed to produce an understanding of the underlying principles of a completely different statutory schema which may come into effect in the future.[3]
Others have criticised the fact that an emphasis upon doctrine ignores the theoretical and social contexts of law. According to John Schlegel, for example, doctrinal understandings of law are inadequate because
law is not a system of rules simpliciter but a system that takes its meaning ... in interaction with the context in which it is placed. Doctrinal understandings of law assume that this context is the context of other rules of law. However, I have come to understand that the more important contexts are two: the theories that are used to give meaning to whole bodies of law
and the social practices that govern and are governed by legal rules.[4]
Legal education in Australia has, of course, changed considerably in the last 15 years, and many of these deficiencies have now been acknowledged by Australian law teachers and law schools. Most law students today are exposed to non-doctrinal perspectives on the law such as legal theory, legal philosophy, law in context, and various cross-disciplinary, critical and feminist perspectives. Many law teachers, law courses and law schools, however, continue to emphasise the primary importance of legal doctrine.
Within law school promotional materials, for example, statements proclaiming the doctrinal expertise of the law teachers are extremely common. Among the University of Adelaide’s academic staff ‘are internationally recognised scholars in areas such as Industrial Law; legal theory; International Law; Evidence; Environmental Law; and all areas of public law.’[5] The ANU Faculty of Law ‘has developed an exceptional reputation in the area of public law, especially in constitutional and administrative law, and in the area of international law [and] has special strengths in environmental law and commercial law.’[6] The Bond University School of Law ‘has expertise in all major areas of law and is well known for its strengths in corporate and commercial law, international trade, dispute resolution, intellectual property, information technology, e-commerce and legal skills.’[7] While it is not suggested that the legal scholars referred to in these materials possess only doctrinal understandings of law, the law schools are nevertheless implying that it is expertise in particular fields of law – rather than expertise in, say, jurisprudence, socio-legal theory, cross-cultural issues or feminist legal theory – that is of primary importance and therefore worthy of special emphasis.
Some schools emphasise the importance and prestige of legal doctrine by describing the difficulty and complexity of ‘law’ as a body of rules, and by highlighting the requirement that students be academically gifted and prepared to work extremely hard in order graduate. The University of Sydney Law School, for example, warns prospective students that ‘[l]aw is a challenging intellectual discipline because its mastery obliges students to comprehend various categories of legal rules.’[8] Again, the implication is that it is one’s understanding of legal rules which is of paramount importance in the study of law.
Most importantly, an emphasis upon doctrine is inherent within the structure of the LLB degree within most Australian law schools. Many subjects taught within Australian law schools remain concerned primarily with the study of legal rules in isolation from context. Approximately one third of the introductory law subjects in Australia are concerned primarily with the exposition of traditional legal frameworks, rules and concepts.[9] Most compulsory law subjects and many elective law subjects still focus upon the exposition and analysis of what the law is.[10] Even within those law subjects which acknowledge the relevance of non-doctrinal perspectives, the primary emphasis is upon the learning and application of legal doctrine, and non-doctrinal perspectives are often consigned to the margins. While it is now relatively rare for a law subject to be concerned solely with the description of legal rules, and other approaches to the study of law are often incorporated into the subject, many law subjects still privilege doctrine by making it the core of the curriculum and by making non-doctrinal perspectives on law secondary considerations. The black letter approach persists, and in some locations may even be flourishing,[11] despite decades of legal education scholarship criticising the preoccupation of law schools and law teachers with the privileging of legal rules.
Contingencies
What are the historical, social and political contingencies which contribute to the persistent emphasis upon legal doctrine? One such contingency is the weight of tradition: the black letter approach was for many years the customary approach to the teaching of law within Australian law schools. Legal education in Australia was initially more vocational than doctrinal, but following World War II part-time teaching by practitioners in law schools was discouraged and the number of full-time legal academics was increased significantly. These changes led to the appearance of the ‘professional law teacher’ and the emergence of a less vocational and more doctrinal approach to the study and the teaching of law, an approach which came to dominate Australian legal education.
The traditional domination of the doctrinal approach contributes to the ongoing emphasis upon legal doctrine in three ways. Firstly, as an older approach it is often accorded a status which places it above newer approaches in a hierarchy of teaching approaches, and this makes it more likely that the approach will be retained by the more conservative law teachers and law schools. Secondly, many law teachers continue to teach law in the same way they were taught.[12] Finally, law school decision makers will often prefer to appoint new law teachers who favour the approach which the decision maker has adopted; many of the present senior academics within the law school achieved their position because of their success as legal specialists, and thus tend to privilege specialisation in legal doctrine over other ways of judging law teachers and academic performance.[13]
Another contingency contributing to the ongoing emphasis upon legal doctrine is the preponderance of doctrinal legal scholarship. Doctrinal legal scholarship is legal scholarship which is concerned primarily with the description and categorisation of legal rules, legal decisions and legal principles. While legal scholarship today is more likely to be contextual or interdisciplinary, a large body of doctrinal scholarship still exists, is still referred to and still influences the teaching of law. Many of the textbooks prescribed to students, for example, are concerned primarily with the exposition of doctrine.
Resistance to change amongst law teachers also perpetuates the emphasis upon doctrine within Australian legal education. The shift towards a non-doctrinal approach to the teaching of law requires a greater effort than many law teachers appear to be prepared to make. Greta Bird describes how the ideal of ‘academic freedom’ is often used to justify resistance to attempts to impose curriculum changes: such changes are ‘often seen as the prerogative of the individual teachers teaching a subject’, and there is ‘a belief that time and effort spent on innovation is not properly rewarded’.[14] Some law teachers are reluctant to present non-doctrinal perspectives on the law because of the perception that such approaches portray the law in a negative light, a point made by Judith Resnick, who described how difficult it is for law teachers to ‘stand up before students and tell them of the failures of the discipline, law, to which we who teach have devoted ourselves and to which so many of us and them have come with such high hopes.’[15]
Charles Sampford and David Wood have claimed that many Australian law teachers remain ignorant of the possible alternatives to a doctrinal approach to the teaching of law. Even amongst those law teachers who appreciate that legal education should be about more than just the learning of legal rules and principles, there is uncertainty about what the ‘extra’ should be, and those who have formed an opinion as to what that extra should be may often lack the training or the interdisciplinary expertise to confidently teach it.[16]
Those teachers who are willing to explore alternative approaches to the teaching of law are often constrained by teaching conditions. The number of law students in Australia has expanded considerably in recent years, and most law teachers find themselves teaching and coordinating larger and larger classes. This tends to perpetuate an emphasis upon doctrine in two ways. Firstly, in teaching large classes, many law teachers resort to a transmission model of teaching rather than a facilitative model. As one interviewee in the 2003 Johnstone Report explained:
I think there is some difference between what I dearly would like to be as a teacher, which is a facilitator of knowledge, of knowledge gained, and what I am, which is just a knowledge bank. But the pressures are such that, you know, I still find myself being a knowledge bank. If I really think that something is important for the students to know and understand, I know it’s in their reading, I know they’ll understand it if they’ve done the reading carefully, but I know they won’t have, so there’s just that pressure to say, ‘Okay, I’m going to spend five minutes telling you how this theory works or what this case deals with’ or something like that. And so especially in large groups you can find yourself doing that.[17]
While a black letter approach and a transmission model of teaching do not necessarily coincide, there is a tendency for them to do so. Secondly, many teachers continue to take a doctrinal approach to teaching law because of the limited time and resources available them: an ever greater proportion of their time is consumed by both teaching and administrative tasks, and it takes less time and less effort to teach a law subject in the same way and using the same materials as used in previous years.
The persistence of the doctrinal approach is also a consequence of the expectations of law students. With the ongoing decline in public funding of Universities, students are increasingly bearing the cost of their own education and this shift has accorded students a greater say in the content of the law degree: university administrators, perceiving students as the ‘customers’ of the university, accord student expectations – as determined through student choices, teaching evaluations, and course questionnaires – greater weight. The anticipated and perceived negative reaction of students to non-doctrinal material motivates many law schools to continue with doctrinal approaches. Law students often expect that, having enrolled in a law degree, they will be taught ‘the Law’, and become resentful if compelled to learn anything outside the scope of legal doctrine. Many students engage in part-time or even full-time work while studying, view the law degree as a commodity to be purchased as quickly and as efficiently as possible, and view non-doctrinal content as an unnecessary cause of extra work and of delay in the awarding of their degree. Charles Sampford and David Wood described how many law teachers have
experienced the sound of pens dropping and the silent but perceptible click of minds switching off when some theoretical or critical question is raised and sometimes even a hostility or impatience that time is being “wasted.”[18]
The desire to avoid such resentment prompts many law teachers and law schools to continue with the traditional approach and to focus primarily upon teaching doctrine.
Many law students also expect the discipline of law to be different from and superior to other disciplines, and a career in law to be different from and superior to other careers. They expect the course of study leading to the awarding of a law degree to be an elite one, and have no desire to share class time, law subject content or learning materials with other, ‘lesser’, students.[19] This elitism reinforces and perpetuates the emphasis upon the study of ‘law’ in isolation from context and, importantly, upon the distinctions between law and other disciplines.
The preference by elitist law students for the maintenance of the distinction between law and other disciplines is mirrored by the implicit expectations of senior university management. In order for law to be accepted as a legitimate and credible academic discipline it must be associated with a sophisticated and technical body of knowledge, knowledge that is not a part of any other academic discipline. This body of knowledge is legal doctrine: it is the study of legal rules which distinguishes law from other disciplines within the university.[20] Law schools maintain, and are implicitly encouraged to maintain, strict disciplinary boundaries.
Finally, a black letter approach is perpetuated by the expectations of the legal profession. Legal professionals and employers often expect, if not insist, that the focus of legal education be upon the teaching of legal rules and principles. The Uniform Admission Rules and the 11 areas of knowledge that law students are required to have studied successfully before they can be admitted to the legal profession (the ‘Priestley 11’)[21] facilitate and encourage a doctrinal approach to legal education: they are concerned primarily with the teaching of legal rules, and no reference is made to the history of law and legal systems, to legal theory, to interdisciplinary perspectives, to law’s social and economic impact, or to international and comparative law.[22] Andrew Goldsmith wrote that the Priestley 11’s influence ‘upon the entire LLB curriculum is indisputable, and lends legitimacy, and some persuasive force, to the pattern of teaching confined to legal exposition leavened perhaps by a little policy.’[23] All of the LLB programs in Australia prescribe most or all of the Priestley 11 as compulsory.[24] The pressure to comply with the expectations of the practising profession, as expressed in the Uniform Admission Rules, ensures that many of the law courses available in Australian law schools focus primarily upon the exposition of legal doctrine.
These historical, social and political contingencies perpetuate the emphasis upon doctrine in Australian legal education. This emphasis could not persist, however, without the cooperation of willing advocates within the law school, and the second half of this paper is an analysis of doctrinalism as an expression of power-knowledge in favour of these willing advocates.
Power-knowledge
The notion of power-knowledge adopted in this paper is a Foucauldian one. Foucault coined the term ‘power-knowledge’ to indicate the close relationship between knowledge and power: the production and dissemination of knowledge is always an expression of power, and the expression of power always involves the production and dissemination of knowledge. Power-knowledge both informs and influences, both educates and dominates. Power-knowledge tells subjects about themselves and about the world; it also constructs that world and determines who the subjects are. Legal doctrine, then, is both a form of knowledge about law and an expression of power seeking to influence law teachers, law students and others.
The Foucauldian notion of power is a non-judgemental one. The word ‘power’ often has a negative connotation: it is something possessed and used by the powerful at the expense of the powerless, it is used to repress and control, and it distorts truth and knowledge. According to the Foucault, however, power is not only negative, it is also productive. Power produces meaning, it produces subjects and what they do, it produces how subjects see themselves and the world, and it produces resistance to itself. Power leads to dominance and hegemony, but power also undermines dominance and hegemony.[25] Legal education texts, including the books and articles written by legal scholars, the papers that they present, law school websites and course descriptions, and even classroom and meeting room dialogues, are all expressions of power seeking to achieve particular objectives. This need not be viewed as a controversial assertion if it is understood that designating something as an exercise or as a technology of power is not a criticism. Power exists and is exercised within the law school but it is not necessarily exercised repressively or unjustly. Power is what keeps the engine of legal education working.
The Foucauldian notion of power is also non-subjective. An expression of power may privilege or favour certain subjects,[26] and those subjects may appear to cooperate willingly in the exercise of power, but it is not an exercise of power by those subjects. Subjects are not the initiators of power-knowledge, they are rather the products of power-knowledge and the means by which power-knowledge is propagated.[27] Doctrinalism, then, is an exercise of power-knowledge which favours the legal specialist, but it is not a deliberate machination by the legal specialist.
The following analysis of doctrinalism as power-knowledge is conducted in three steps.[28] The first step is the identification of the differentiations established by an emphasis upon doctrine which create the spaces within which power-knowledge is exercised. The second step is the identification of the objectives pursued once power-knowledge relations are brought into existence. The third and final step is the identification of some of the strategies employed in the achievement of these objectives.
Differentiations
The first differentiation established by an emphasis upon doctrine is between law and not law. Legal doctrine is that which is studied and taught within the law school, and only within the law school. It is legal doctrine which distinguishes law as a discrete discipline. The law school is distinguished from other schools. The law degree is more difficult and more prestigious than other degrees. The law student must be more academically gifted and must work harder than other students. Pure legal knowledge, legal doctrine, is the most important knowledge learned at law school, and other knowledge is of secondary importance. Doctrinalism emphasises the differences and distances between legal and non-legal disciplines, and between legal and non-legal knowledge.
The second key distinction is between those who have legal knowledge and those who lack legal knowledge. Legal scholars have this knowledge, and non-legal scholars lack it. Law students have it, and other students lack it. Lawyers have it, and other members of the community lack it. Law texts contain it, and other texts do not. Law courses teach it, and other courses teach something else. Doctrine is special, and once it has been learned and the learner accredited with a law degree, the learner is privileged. They have something which very few others within society have, an understanding of the law. They have been, literally, ‘indoctrinated’, and the indoctrinated are separate from, and privileged above, the un-indoctrinated.
In each of these pairs, the dominant entity is the first named. An emphasis upon doctrine divides all human knowledge into two categories, legal knowledge and non-legal knowledge, and then divides the community into two categories, the indoctrinated and the un-indoctrinated. Within these categories, further hierarchies of privilege are constructed. Legal knowledge can be less legal or more legal, with legal doctrine the purest form of legal knowledge and therefore the most privileged. The legally indoctrinated can be less knowledgeable or more knowledgeable, with the legal expert the most privileged. An emphasis upon doctrine privileges legal scholars, law students and practising lawyers in opposition to those without legal qualifications, and especially privileges the legal specialist in opposition to other scholars, students and lawyers.
Objectives
The explicit and implicit assertions within doctrinal texts and curricula – that ‘the Law’ exists as a discrete phenomenon, that the Law consists of rational and hierarchically ordered legal rules, that the Law can be understood in isolation from its political, social, cultural and theoretical contexts, and that the quality of legal education can be gauged in terms of the quantity and detail of legal doctrine successfully transmitted to students – are subjective and contestable assertions. Doctrinal approaches insist – explicitly or implicitly – that these particular, arbitrary, and contingent descriptions of the nature of law, legality and legal education are in fact inevitable and universal. Doctrinalism seeks to establish itself as a regime of truth.
As an expression of power, an emphasis upon doctrine is also an effort to enhance the status of the legal scholar as legal specialist. It seeks to position the legal specialist above other scholars and above other members of the community, to ensure that the legal specialist is perceived as superior to his or her colleagues by reason of his or her more thorough and detailed understanding of particular narrow categories of doctrine, and to enhance the status of the legally qualified generally above other members of the community. As Sam Garkawe argues in his paper ‘Admission Rules’:
When [its social, political, cultural, economic and racial] contexts are taken out of the law, the ‘objective’ rules that remain can be said to be ‘known’ by the transmitters of that knowledge (law academics) or to those who decide the law (judges). These people can thus claim a legitimacy as professionals who have something that others in the community do not have. This justifies their professional standing and self-image.[29]
The legal specialist is seen as possessing something which others lack, and this presence when contrasted with the others’ absence places the specialist at the centre of the focus of the others’ needs and desires.
Doctrinalism is also an effort to preserve the uniqueness of ‘law’ as an academic discipline and as an area of expertise. When the professional law teacher emerged in Australia following World War II, the differences between the law teacher and the legal practitioner were established and emphasised: the law teacher was the true master of legal knowledge, capable of comprehending law in all its complexity, untarnished by such mundane considerations as client contact, billing, and running an office. Similarly the differences between the law teacher and other academics were clearly defined: the law teacher was the master of a unique discipline that had little in common with others within the university. David Sugarman describes how this same process took place in England 50 years earlier:
The classic dons created a framework for viewing, classifying and explaining their lives. This framework was anchored in the notion of law as a certain body of rules and the cultural authority of judges and lawyers ... Exposition, conceptualisation, systematisation and the analysis of existing legal doctrine became equated with the dominant tasks of legal education. Here then was the raison d’être of the new professional jurist and university legal education.[30]
John Henry Schlegel describes the same process in relation to legal education in the USA. The new professional law teachers were, according to Schlegel, members of the middle class who were attempting to improve their social and economic positions by creating and marketing an identifiable, attractive product: university legal education.
[A] small group of scholars created an academic discipline where none had been before. Each group began by staking out part of the intellectual world as its ‘turf’, adopting a particular way of looking at that turf, a method as it were, and moving to cut out the ‘amateurs’ who formerly had a claim to that turf. Finally, they justified those activities by pointing to the ‘mission’ of the discipline. Such is the process of academic professionalisation.[31]
In Australia, the new law teachers created a unique identity by emphasising their distinctive way of thinking about and teaching law as a scientific and rigorous academic discipline, and to protect this unique identity, Australian law teachers continue to distinguish themselves from other academics and from other lawyers. They continue to defend their territory by striving to maintain clear distinctions between that which is studied and taught within the law school, that which is studied and taught elsewhere within the academy, and that which is practised.
Strategies
Doctrinal legal scholarship, texts and curricula seek to enhance the status of the legal specialist and to preserve the distinctness of law as an academic discipline and area of expertise. What other strategies are deployed in an effort to achieve these objectives?
The law school, like few other faculties, schools and departments within the university, maintains itself as an independent organisational unit within the overall structure. It is a space that is sealed off from the rest of the university in a number of ways: non-law students are rarely permitted to enrol in law subjects, non-law students are rarely invited to participate in law school activities such as moots, and the law school is often located in its own building or at least its own wing. The law school is unique and stands alone; it is both a territory and a fortress, delineating and protecting a defined field of knowledge. Even the recent trend within Australia for law schools to become divisions within business faculties has done little to alter this perception.
The layout of the typical classroom places the law teacher in a position where they are simultaneously the centre of the students’ attention and capable of observing the behaviour of students.[32] The physical supremacy of the teacher is apparent, and this physical supremacy reinforces the notion that they are in possession of the prize which the students seek and for which they compete with each other: legal doctrine. The physical subordination of the students also reinforces the notion that in order to succeed they must emulate the teacher, their style of reasoning and way of talking, their jargon and their attitude. The students are indoctrinated through repetition and role modelling. By shaping a learning space where the student is physically subordinate to the teacher, critique is marginalised. The student dare not question the teacher or that which is taught because it is clear that their role is to mimic, not agitate.
The existence of the law library, and the fact that it is generally accepted that no law school can be established without first setting up a discrete law library, further reinforces the distance between law and other fields of knowledge. Because legal knowledge, in the form of legal doctrine, is unique and different to the knowledge produced by and studied in other disciplines, a special library is required to house its texts. Most other disciplines must be content with, at most, their own sections within an existing library: the discipline of law gets an entire library to itself. The law library is hallowed ground, accessible to only a few. Only law students and legal scholars are welcome there. Only those texts that are solely or principally concerned with the law are located in the law library; the continued dominance of doctrinalism is assured and the integrity of the discipline of law is maintained.
Finally, the status of the legal specialist and the uniqueness of the discipline of law are reinforced by the use of legal jargon. Legal concepts and phenomena are labelled with precise legal words, and only those who have been legally indoctrinated can understand and use those words. Law students are privileged over others in the university, and lawyers are privileged over others in the community, by being taught the secret meanings of these words. Students usually require extremely high tertiary entrance scores in order to be admitted to study for the law degree; regardless of the reality, the perception is that the law degree is ‘difficult’ and that only those with a sufficiently high intelligence are qualified to study for it. This is a perception that is encouraged by doctrinal approaches; the law is portrayed as extremely complex, scientific and jargonistic. Only a select few are capable of comprehending it sufficiently in order to be granted a legal qualification. The consequent empowerment of those students and lawyers encourages them to maintain the use and secrecy of legal jargon in their daily lives, preserving their authority and status.
Conclusions
The ongoing emphasis upon doctrine by law teachers is a consequence of a set of disparate social and historical contingencies including contemporary teaching conditions and the expectations of students, practitioners and the university. It is also an expression of power-knowledge which serves the interests of those legal scholars who elect to specialise in particular areas of legal doctrine. An emphasis upon doctrine creates for them a reality in which they are the experts and the only persons qualified to judge and determine legal knowledge. It accords legal scholars power and status over others – over practitioners, over students, and over non-legal scholars – and contributes to the legitimation of ‘law’ as a discrete and highly privileged field of expertise within the university and the community.
Doctrinalism is certainly not the only expression of power-knowledge within the law school. In the last few decades, competing approaches to the teaching of law have emerged: vocationalism, the approach which prioritises the teaching of legal skills and emphasises the importance of employability as an objective of legal education; corporatism, the approach which emphasises the accountability of teachers and students, the efficiency of the teaching process and the marketability of the law school; liberalism, the approach which endorses the liberalising of traditional legal education by emphasising individual freedom, social responsibility and the inculcation of an informed rationality; and various radical approaches which criticise and seek to undermine the status quo within the law school and within the legal system by exposing and questioning the undisclosed political positions, gender biases, cultural biases and/or power relations within legal education and within law. Each of these approaches has something different to say about the nature of law and legality and about the nature, purpose and scope of legal education, and each approach is a discrete vector of power-knowledge. Sometimes these approaches ignore each other, sometimes they cooperate with each other – when, for instance, doctrinal and vocational approaches to the teaching of law coincide – but often these approaches compete with each other to dominate the discipline of law. Knowledge within the discipline of law is consequently inconsistent, discontinuous and unstable. In this regard legal education is not unique; there are multiple knowledges within every discipline, and disciplines are characterised not by a simple, consistent worldview but by the tension which exists between various perspectives, politics and positions.[33]
The depiction of doctrinalism as an expression of power-knowledge explains not only the ongoing emphasis upon doctrine but also the ongoing failure by liberal and radical scholars to effect a widespread transformation of Australian legal education. It also, perhaps, points to the ways in which that failure might be reversed. The efforts of those legal scholars who question doctrinalism’s ongoing dominance of the law curriculum are often limited to criticism of doctrinalism within legal education literature. Such efforts are frequently ineffective in the face of the status-related and disciplinary benefits an emphasis upon doctrine accords many legal scholars. It is only by meeting doctrinalism’s exclusionary and isolationist strategies with more cross-disciplinary and inclusive counter-strategies that legal scholars concerned about hegemonic doctrinalism are truly be able to make a difference.
[*] BCom LLB (Hons) LLM PhD. Lecturer in Law, T C Beirne School of Law, University of Queensland. This paper is one of a series of papers analysing various ideologies and discourses within Australian legal education. See also Nickolas James, 'The Good Law Teacher: The Propagation of Pedagogicalism in Australian Legal Education' (2004) 27 University of New South Wales Law Journal (Publication forthcoming), Nickolas James, 'Power-Knowledge in Australian Legal Education: Corporatism's Reign' (2004) Sydney Law Review (Publication forthcoming), Nickolas James, 'Why Has Vocationalism Propagated So Successfully within Australian Law Schools?' (2004) 6 University of Notre Dame Australia Law Review (Publication forthcoming), Nickolas James, 'Australian Legal Education and the Inconsistency of Critique' (2004) Melbourne University Law Review (Publication forthcoming), Nickolas James, 'Liberal Legal Education: The Gap between Rhetoric and Reality' (2004) 1 University of New England Law Review (Publication forthcoming).
[1] According to Manderson and Mohr, a doctrinal approach to legal education and scholarship emphasises the discovery of knowledge rather than contribution to knowledge; doctrinalism is ‘closer to theology than to any of the social sciences, both in terms of its exegetical cast, its faith in authority, and its devotion to untangling the intricacies of canonical texts.’ Desmond Manderson and Richard Mohr, 'From Oxymoron to Intersection: An Epidemiology of Legal Research' (2002) 6 Law Text Culture 159, 163.
[2] Dennis Pearce et al., Australian Law Schools: A Discipline Assessment for the Commonwealth Tertiary Education Committee (1987), 57.
[3] Margaret Thornton, 'Portia Lost in the Groves of Academe Wondering What to Do About Legal Education' (1991) 9 Law in Context 9, 19-20.
[4] John Henry Schlegel, 'Legal Education: More Theory, More Practice' (1988) 13 Legal Service Bulletin 71. John Goldring, on the other hand, defended doctrinal approaches to legal education and scholarship when he warned that ‘an overreaction to traditional approaches in legal scholarship may result in its transformation into an activity which is purely theoretical and that this may lead legal scholarship into becoming, like economics, largely an ideological weapon. To completely discard the formalist and positivist contribution to legal scholarship and legal education would be to ‘throw the baby out with the bathwater’.’ John Goldring, 'Tradition or Progress in Legal Scholarship and Legal Education' in John Goldring, Charles Sampford, and Ralph Simmonds (eds) New Foundations in Legal Education (1998), 27.
[5] University of Adelaide, Law School Homepage (2003) <http://www.law.adelaide.edu.au/> at 14 May 2003.
[6] Australian National University, <http://law.anu.edu.au/> at 14 May 2003. Faculty of Law Homepage (2003)
[7] Bond University, School of Law Homepage (2003) <http://www.bond.edu.au/law/index.htm> at 14 May 2003.
[8] University of Sydney, Law School Homepage (2003) <http://www.law.usyd.edu.au/> at 5 May 2003.
[9] The introductory law subject is the subject which all law students are obliged to study in the first semester of their first year, and which establishes the framework within much of their subsequent understanding of law will be constructed. Regarding the importance of introductory subjects, see Helen Ward, 'The Adequacy of Their Attention: Gender-Bias and the Incorporation of Feminist Perspectives in the Australian Introductory Law Subject' [2000] LegEdRev 1; (2000) 11 Legal Education Review 1, 13-14.
[10] This assessment is based upon a review on the online subject descriptions for each law school conducted in 2003.
[11] The 2003 Johnstone and Vignaendra Report noted that while there was some experimentation with small group teaching in the 1990s, it appears that many Australian law schools are retaining or returning to the traditional two hours of lectures and one hour of tutorials each week, with the consequent emphasis upon transmission of content rather than upon teaching methods and approaches which are more creative, and less conducive to doctrinalism. Richard Johnstone and Sumitra Vignaendra, Learning Outcomes and Curriculum Development in Law: A Report Commissioned by the Australian Universities Teaching Committee (2003), 325, 395.
[12] On this point see Judith Resnick, 'Ambivalence: The Resiliency of Legal Culture in the United States' (1993) 45 Stanford Law Review 1525, 1525-1527.
[13] As Margaret Thornton argues: ‘Despite the ostensible commitment to the rhetoric of diversity within the academy, homogeneity manifests itself most dramatically through the phenomenon of homo-social reproduction or cloning which means that senior men see youthful images of themselves as the ideal candidates within the recruitment process ... one, male decision-maker, when asked what was in his mind during the university selection process ingeniously replied, ‘Well, it’s like looking in a mirror.’’ Margaret Thornton, 'Hegemonic Masculinity in the Academy' (1989) 17 International Journal of the Sociology of Law 122.
[14] Greta Bird, 'Race, Ethnicity, Class and Gender: Integral Issues for a Law Curriculum?' in C Hendrick and R Holton (eds) Crosscultural Communication and Professional Education (1998), 6.
[15] Resnick, above n 12, 1528.
[16] Charles Sampford and David Wood, 'Theoretical Dimensions of Legal Education' in John Goldring, Charles Sampford, and Ralph Simmonds (eds) New Foundations in Legal Education (1998), 113.
[17] Johnstone and Vignaendra, above n 11, 328.
[18] Sampford and Wood, above n 16, 104.
[19] This expectation is in turn contingent upon the typical background of the law student. David Weisbrot’s 1986 study of the backgrounds of Australian law students concluded, inter alia, that most law students were from economically affluent backgrounds, with over one-quarter coming from the highest income category; that the Australian legal profession had strong ‘hereditary and tribal aspects’; and that law students were drawn heavily from elite, expensive private schools and selective public schools. David Weisbrot, 'Access to Legal Education in Australia' in Rajeev Dhanan, Neil Kibble, and William Twining (eds) Access to Legal Education and the Legal Profession (1989), 98. In 1996, David Barker wrote that such conclusions still apply, except for the difference that women occupy approximately 50% of the positions available for law students in most universities, and concluded that ‘the social role accorded to lawyers and judges, with the accompanying power and influence in the political and economic spheres, is largely reserved for persons of elite background, despite professed commitments to egalitarianism and meritocracy.’ David Barker, Access to Legal Education (1996), 89. In 1997, John Goldring noted that the emergence of new and regional law schools has prevented the study of Law from being confined exclusively to the more affluent groups from higher status backgrounds. John Goldring and Sumitra Vignaendra, A Social Profile of New Law Students in the Australian Capital Territory, New South Wales and Victoria (1997), 13. On the other hand, rising higher education charges and students fees threaten to perpetuate the availability of legal education to an elite minority.
[20] As Andrew Goldsmith noted, ‘[i]n the absence of a clear consensus about the goals of legal education ... the simple fact remains that legal doctrine continues to unite what it is that law schools do.’ Andrew Goldsmith, 'Standing at the Crossroads: Law Schools, Universities, Markets and the Future of Legal Scholarship' in Fiona Cownie (ed) The Law School - Global Issues, Local Questions (1999), 72.
[21] Contract law, tort law, real and personal property law, equity (including trusts), criminal law and procedure, civil procedure, evidence, professional conduct (including basic trust accounting), administrative law, federal and state constitutional law, and company law.
[22] Sam Garkawe, 'Admission Rules' (1995) 21 Alternative Law Journal 109, 111.
[23] Andrew Goldsmith, 'Legal Education and the Public Interest' (1998) 9 Legal Education Review 143, 150-151.
[24] One of the interviewees in the Johnstone Report described the impact of the Priestley 11 upon doctrinalism as follows: ‘90 percent of [students] wouldn’t know what the Priestley 11 was to start with, but they know what’s compulsory, and that creates a sense within their minds like: so this is what law is about. This is a Bachelor of Laws degree and to become a lawyer it is necessarily constituted by these things. And in that sense I think that just cannot but help drive their sense of what law is about. And it is about substance, to them it’s not about critique and I think also it drives their sense of what it is you do with this thing. Because unlike so many other courses, we are defined by what it is that you come out with. ... And there’s no idea that you can be a lawyer in the sense of somebody who has a critical, good, substantive grasp of what law is. Even without having done the Priestley 11 or whatever it might be. So I think in that sense it actually has a really strong impact, albeit indirect. That is, if we weren’t driven by that, I think we would have a much different sense within the faculty and within the student body of what a lawyer is.’ Johnstone and Vignaendra, above n 11, 90-91.
[25] In ‘Truth and Power’ Foucault wrote: ‘But it seems to me now that the notion of repression is quite inadequate for capturing what is precisely the productive aspect of power. In defining the effects of power as repression, one adopts a purely juridical conception of such power; one identifies power with a law which says no – power is taken, above all, as carrying the force of a prohibition. Now I believe that this is a wholly negative, narrow, skeletal conception of power, one which has been curiously widespread. If power were never anything but repressive, if it never did anything but to say no, do you really think one would be brought to obey it? What makes power hold good, what makes it accepted, is simply the fact that it doesn’t only weigh on us as a force that says no, but that it traverses and produces things, it induces pleasure, forms knowledge, produces discourse. It needs to be considered as a productive network which runs through the whole social body, much more than as a negative instance whose function is repression.’ Michel Foucault, 'Truth and Power' in James D Faubion (ed) Power: Essential Works of Foucault 1954-1984 Volume 3 (2002), 120. Foucault wrote in Discipline and Punish: ‘We must cease once and for all to describe the effects of power in negative terms: it “excludes”, it “represses”, it “censors”, it “abstracts”, it “masks”, it “conceals”. In fact power produces; it produces reality; it produces domains of objects and rituals of truth. The individual and the knowledge that may be gained of him belong to this production.’ Michel Foucault, Discipline and Punish: The Birth of the Prison (1991), 194.
[26] The word ‘subject’ as used by Foucault has two senses: people are both subjects (self-conscious beings) but they are also subjected (power acts produce subjection). Alan Hunt and Gary Wickham, Foucault and Law: Towards a Sociology of Law as Governance (1994), 29.
[27] According to Foucault, the notion of a subject who exists prior to language and is the origin of all meaning is an illusion. He wrote: ‘If there is one approach that I do reject [it is the one] which gives absolute priority to the observing subject, which attributes a constituent role to an act, which places its own point of view at the origin of all historicity – which, in short, leads to a transcendental consciousness. It seems to me that the historical analysis of ... discourse, in the last resort, be subject, not to a theory of the knowing subject, but rather to a theory of discursive practice.’ Michel Foucault, The Birth of the Clinic: An Archaeology of Medical Perception (1973), 172.
[28] Michel Foucault, 'The Subject and Power' in James D Faubion (ed) Power: Essential Works of Foucault 1954-1984 (2002).
[29] Garkawe, above n 22, 112.
[30] David Sugarman, 'A Hatred of Disorder: Legal Science, Liberalism and Imperialism' in Peter Fitzpatrick (ed) Dangerous Supplements: Resistance and Renewal in Jurisprudence (1991), 36-38.
[31] John Henry Schlegel, 'Between the Harvard Founders and the American Legal Realists: The Professionalisation of the American Law Professor' (1985) 35 Journal of Legal Education 311, 320.
[32] This point applies to most classrooms, not only those within the law school. In any event, many law classes take place in classrooms located elsewhere in the university. In Discipline and Punish, Foucault described the classroom as an apparatus for the institutionalisation of power relations: Foucault, above n 25.
[33] It is not suggested, however, that the law school is cleanly divided into warring tribes of teachers and students, each allied to a distinct approach. An individual may sometimes be influenced by a single approach but more often individual law teachers and law students are influenced by more than one approach to the teaching of law, and these approaches either compete or cooperate within the individual’s subjective experience and actions.