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Corfts, Penny --- "Review: Developing A Cross-Cultural Law Curriculum" [2001] UTSLawRw 18; (2001) 3 University of Technology Sydney Law Review 238

Anthony O’Donnell and Richard Johnstone, DEVELOPING A CROSS-CULTURAL LAW CURRICULUM, Cavendish, London,1997

Reviewed by Penny Crofts

Developing a Cross-Cultural Law Curriculum was written by O’Donnell and Johnstone to argue that cross-cultural issues are central to legal education and should not be ignored or treated as peripheral to the traditional curriculum. The book is persuasive, well written and challenging.

The first chapter provides a general theoretical framework for why considerations of culture, race and ethnicity are appropriate in legal education, and how these issues should be addressed. The chapter provides an excellent starting point for an analysis of the relations of difference in Australian legal culture. Data and theories from a variety of different sources are presented to contribute to the argument that it is imperative to consider cross-cultural difference as part of the law curriculum. The references are detailed and provide plenty of guidance for readers wishing to pursue a particular idea or source of information.

The text adopts a critical approach to cross-cultural issues, interrogating conservative understandings of ethnicity. For example, to highlight the problem of treating ‘traditional’ culture as ‘immutable’ (a philosophy informing the Hindmarsh Island Bridge Royal Commission), the authors suggest we imagine a Royal Commission into Christmas as a festive holiday marked by gift giving. This would highlight that such a concept of Christmas is a relatively recent ‘fabrication’ dreamed up by Charles Dickens and some London retailers in the 1840s. The authors suggest that three major themes can constitute an ongoing project in legal education:

  • the interrogation and unpacking of majority cultural privilege;
  • an anti-essentialist approach to culture and ethnicity; and
  • an examination of law’s representation of culture.[1]

These themes can help confront the problem of seeing Anglo-Celtic ethnicity as an invisible norm, and to interrogate and critique the privileges enjoyed by the dominant culture.

The first chapter suggests some initially daunting teaching strategies and ideas. The first suggestion is to ‘rethink the entire syllabus from a critical perspective’.[2] The authors recognise that this process will probably take up to five or six years depending on circumstances. At a time of shrinking funding and increased student numbers, this would probably be the point at which many academics would consider a culturally sensitive curriculum to be too hard and time consuming. However, the suggestions get more practical, including knowing the demographic background of our students, organising guest speakers and including case studies and examples from a variety of different social contexts.

The most practical parts of the book are the individual chapters devoted to torts, property and equity, suggesting critical frameworks, pinpointing key cases, texts and readings, and suggesting a range of learning activities. The authors intentionally selected ‘opaque’ subjects to highlight the possibilities already present in current syllabuses. These chapters demonstrate that cross-cultural education does not require a revolutionary overhaul of the curriculum.

I must admit when I first commenced reading Cross-Cultural Law Curriculum and noticed that there were chapters on specific areas of law, particularly equity and property, I felt some dismay. I had only vague, rather unpleasant memories of equity and property when studying undergraduate law. I therefore did not look forward to reading either of these chapters and had serious reservations about the possibility of including cross-cultural analysis in an interesting and relevant way. I was totally wrong. All the chapters were fascinating, relevant, and useful. In fact, this is one of the central points of the text, that by excluding cross-cultural perspectives from the law curriculum we are doing ourselves and our students a disservice. The exclusion of context from these core law subjects contributes to a perception that these areas of law are dry and dull. This is far from the truth.

The equity chapter highlighted the extent to which culture is already present in the standard law curriculum. For example, the authors recognise that lawyers would probably label Commercial Bank of Australia v Amadio[3] as the case providing a cross-cultural perspective on equity. The High Court held that it would be unconscionable for the Bank to enforce the guarantee Mr and Mrs Amadio, an elderly Italian couple who had a limited grasp of English, had executed in favour of their son. The High Court held that their age, migrant background, unfamiliarity with English, lack of business experience and lack of advice contributed to their position of disadvantage. The authors then go on to provide information noting that despite Amadio, the financial industry has failed to deal effectively with the problems arising from this routine transaction. Additionally, the authors suggest that judicial handling of the doctrine of unconscionability is not, as yet, sufficiently sophisticated. For example, the failure of the courts to respond adequately to the intersection of gender and ethnicity is analysed. The impact of the intersection of gender and ethnicity remains invisible, despite the position of many migrant women as structurally distinct from that of many migrant men.

The chapter concludes with international case studies unpacking our concept of the ‘reasonable’ person. For example, the authors compare ‘the right to know’ informing a print economy, with values that may inform oral cultures. The central question is whether equitable doctrines adequately fulfil requirements in cross-cultural encounters. Topical areas continue to be the commercial exploitation of Aboriginal designs without the authorisation of the responsible community and the repatriation of bones and other artefacts of indigenous peoples.

The property and tort chapters are of a similarly high standard to the equity chapters. All are scholarly, well documented and include a wealth of information justifying particular approaches. Additionally, each of the chapters includes suggested learning activities for students.

The inclusion of cross-cultural perspectives encourages students (and academics) to question and unpack existing norms enforced by the law. This is intellectually challenging and stimulating, in part because it is relevant and necessary, but also because it highlights the possibility for change. Legal education is a powerful transmitter of norms. By excluding or sidelining cross-cultural perspectives from the law curriculum, the development of subjects such as equity and property is limited to a narrow path, with practitioners who do not perceive the cultural baggage attached to apparently neutral laws. The inclusion of cross-cultural perspectives in the law curriculum is interesting and encourages students to recognise the impact of legal norms upon different people in society.

I loved Developing a Cross-Cultural Law Curriculum and strongly recommend it to legal practitioners, academics and students. It is relevant, innovative, scholarly and challenging.

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