Austin, R P --- "Academics, Practitioners and Judges" [2005] LegEdDig 32; (2005) 13(4) Legal Education Digest 21

Academics, Practitioners and Judges

Justice R P Austin[1]

[2005] LegEdDig 32; (2005) 13(4) Legal Education Digest 21

26 Sydney L Rev 4, 2004, pp 463–472

Legal scholarship in fields such as jurisprudence, criminology, international law or comparative law has a function and purpose that is self-evident. Reflection about the province and function of law, the causes and effects of, and ways of dealing with crime, the role of law in the resolution of international disputes, and the insights that can be gained by understanding and comparing different national solutions to legal problems, are not only fundamentally important enterprises. They are enterprises to be undertaken principally within an academic institution.

In comparison with those subjects, the academic pursuit of company law and equity necessarily involves exposition and analysis of legal principles, activities that some might regard as having a questionable claim to scholarly status. Although academic scholarly output may be a by-product of a judgment or legal advice by a barrister or solicitor, the work of judges and legal practitioners, even at the highest level, should not be described as wholly or even primarily scholarship of the academic kind.

The practitioner’s task is to marshal all legitimate arguments which are relevant to the goal of advancing his or her client’s case. Australian judges operate within very similar constraints, though they have a discretion to venture further afield. While the academic lawyer’s horizons might appear by comparison to be unbounded, the academic’s task is really quite specific. Academics of the common law, when addressing decided cases, have the function of assessing the judicial results of litigation, to place them within the existing pattern, or to revise the pattern. The task has static and dynamic elements to it.

But there are other broader and socially more important roles. Academics frequently undertake to explore the process of law making and the theoretical basis of the legal system, and its interface with economics, politics, sociology and other disciplines, to expose how the law works in society and to consider on a rational basis how it may be improved. Endeavours of all these kinds have in common the element of placing the products of our legislative, judicial and practitioner colleagues, and the academics and practitioners of other disciplines, within a wider pattern. In this way, law becomes for academic lawyers a cultural phenomenon rather than simply a process of dispute resolution.

The author’s practice as a commercial lawyer and a judge has led to a better understanding of the day-to-day interface between academic law and the practice of law, and of the kinds of academic work most likely to be of use to judges and practitioners. His practice as a commercial solicitor was focused almost entirely on transactions and events involving large corporations. While continuing his teaching, research and writing, the main enterprise was to steer corporate clients through the legal thicket towards their commercial objectives. There was no need to justify this activity, whose purpose was self-evident. In his experience, the policy debate in these areas is conducted primarily in the academic literature of law, economics and finance. Work in those fields is a resource of great value to the practitioner. His third career, as a judge, has some equally unexpected facets to it. The function of a judge hearing cases at first instance is well understood, although there is ‘insecurity’ of another kind for a judge at first instance at the bottom of the judicial hierarchy of the superior courts.

But judges at first instance are not infrequently invited to decide questions of law. Normally (though certainly not always), when a point of law arises, plausible arguments are advanced in favour of the competing contentions, such that it may fairly be inferred that the existing law provides no definitive answer. The judge must decide the issue if it is squarely before the court. In doing so, he or she will apply the techniques of strict and complete legalism, but in a manner that inevitably develops the law. This is because decisions at first instance have some value as precedents, although obviously not bearing the weight of appellate decisions. It follows that, without subscribing to any form of judicial activism, a judge at first instance in a superior court in Australia may be asked to determine uncertain points of law fairly often, and will need to obtain such assistance as is available.

Some kinds of academic work are distinctly more helpful than others. Mere exposition of a line of cases is, as you would expect, less helpful than analysis. Three kinds of academic work are particularly useful. The first is academic work that places the issue for determination in its wider social and economic context. The second kind of academic work takes up a categorically new legal development and explores its implications and outworkings. This is particularly helpful for the judge who is required to make a decision in the new area. Thirdly, academic writing is valued that brings into focus legal developments in other countries, particularly the United Kingdom, Canada, New Zealand and the United States, countries whose judicial experience is most likely to be helpful to judges here. The pressure of judicial work is such that we cannot keep abreast of overseas academic developments in all of the areas in which we are required to make decisions.
It is appropriate for Australian law to develop as an independent body of principle. It has well and truly done so, over the last 40 years. Its further development is likely to be assisted if relevant experience in these other countries is identified and taken into account. Australian academic literature will assist judges and counsel in this process.

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[1] Justice of the Supreme Court of New South Wales, Australia. His Honour was previously an academic for 20 years and a commercial solicitor for 10 years before his appointment to the bench.