James, N J --- "Australian Legal Education and the Instability of Critique" [2005] LegEdDig 54; (2005) 14(2) Legal Education Digest 7

Australian Legal Education and the Instability of Critique

N J James

[2005] LegEdDig 54; (2005) 14(2) Legal Education Digest 7

28 Melb U L Rev, 2004, pp 375-405

The 1987 report, Australian Law School: A Discipline Assessment (‘Pearce Report’), concluded that Australian legal education at that time was insufficiently critical. According to the Pearce Report, most Australian law schools were too ‘rule-oriented’: there was too much emphasis on exposition of legal doctrine and insufficient emphasis on theoretical and critical dimensions of law. Current references to critique appear with considerable frequency in works of Australian legal education scholarship and in Australian law school teaching policies and course descriptions.

One might therefore conclude that the suggestions of the Pearce Report regarding the necessity of a critical approach have been heeded and that the importance of critique is now widely recognised within Australia law schools. Yet a closer analysis reveals that, although the use of the term ‘critique’ and its many variations — ‘critical thinking’, ‘critical reasoning’, ‘critical evaluation’, ‘critical perspectives’, ‘criticism’ — has become increasingly common over the past two decades, three factors undermine the initial conclusion that a critical approach has been comprehensively adopted. First, most Australian legal education texts, law school teaching policies and course descriptions do not refer to critique at all. Second, in those texts which do refer to critique, the precise meaning of the term is almost never expressed and is rarely even implied. Third, among those texts where the meaning of the term ‘critique’ is apparent, there is little consistency regarding its definition, purpose or importance.

Rather than a stable and consistent body of knowledge and practices, Australian legal education can be viewed as a dynamic nexus of at least six relatively discrete ideologies or discourses: doctrinalism, vocationalism, corporatism, liberalism, pedagogicalism and radicalism. Each legal education discourse, then, is simultaneously a category of statements about the teaching of law and an expression of power within the law school seeking to achieve a range of objectives, including the normalisation of a particular approach to the teaching of law, the enhancement of the status of a particular type of legal scholar and the establishment of a regime of truth. The six discourses compete with each other to dominate the discursive field of Australian legal education, deploying a range of strategies including the propagation of particular constructions of ‘critique’. Most legal education texts, whether doctrinal, vocational, corporate, liberal, pedagogical or radical, portray legal education as seeking to achieve singular objectives, as incorporating singular practices and as producing singular meanings of law and legality.

This article, on the other hand, argues that such singularity and stability do not exist. Each of the forces that participate in the discipline of legal education in fact produces its own knowledge, including knowledge about ‘critique’, and these knowledges compete to be accepted and recognised as truth about legal education by the participants. Discourses compete for dominance within law schools, within specific texts and within the thoughts and practices of subjects within law schools. Rather than seeking to reconcile the various meanings, interests and perspectives, this article acknowledges that reconciliation is impossible and that Australian legal education is a battlefield of competing and inconsistent truths. A central assertion of this article is that ‘legal education’ is only singular in the sense that it is a field of possibility; it is otherwise a nebulous term seeking to encircle an unstable and inconsistent collection of texts, practices, ideologies and assumptions.

Doctrinal discourse is defined as the set of statements about legal education produced by law schools, law teachers and legal scholars that privilege legal doctrine by locating it at the core of the legal curriculum and by emphasising its intellectual rigour, academic value and social importance. Doctrinalism historically dominated the discursive field of Australian legal education, although in the past few decades it has been increasingly displaced by vocationalism, corporatism and liberalism.

Doctrinal law subjects are those concerned principally with the learning of legal rule and principles, either formal or procedural, local or international. Doctrinalism emphasises the transmission of doctrinal knowledge from law teacher and law text to law students. Critique is largely inimical to this process of transmission, because doctrine must be accepted and repeated, not criticised. Australian law schools and law teachers seem unwilling and unable to wholly abandon a teaching method that privileges the transmission of legal rules. An alternative and more persuasive explanation for the persistence of doctrinalism relates to its power effect. Doctrinalism, like all discourses, is an expression of power within the law school, one which constructs and privileges a particular academic role: the legal specialist. For doctrinalism, critique is a dangerous practice because it questions faith in the law and threatens to break down the disciplinary, academic and social barriers between law and non-law and between lawyers and non-lawyers.

Vocational discourse is the set of statements and practices about legal education produced by law schools, law teachers and legal scholars that prioritises the teaching of legal skills and emphasises the importance of employability as an objective of legal education. According to vocational discourse, the primary purpose of legal education is to teach students to be either lawyers or workers with legal skills. Vocational texts often recognise the relevance and importance of critique — referred to as ‘critical thinking’, ‘critical reasoning’ or ‘critical evaluation’ — as one of the skills that law students should acquire during their legal education.

The Critical Thinking movement is a trend within education scholarship and amongst teaching practitioners which advocates an emphasis on the skill of critical thinking. An ability to think critically is one aspect of an ability to ‘think like a lawyer.’ The particular notion of critique constructed by vocationalism is one strategy deployed by vocational discourse in the achievement of its disciplinary objectives: the successful propagation of vocationalism, the enhanced status of vocationalism’s advocates and the production of employable graduates. Vocational critique is a practical skill, a competence enabling the student to rationally judge reasons, arguments and statements. It is a skill that is useful to practising lawyers, who need to argue with others, defend their clients, negotiate agreements and settlements, cross-examine witnesses and prepare pleadings. By defining critique as a practical skill, the notion that education equates with training is reinforced among students, teachers and graduates.

One of the key objectives of vocationalism is to train a compliant workforce of legal practitioners. Vocational critique promotes this objective by restricting the scope of criticism to that which is most useful to employers and by ignoring possible targets of criticism that may be contrary to the interests of employers. The definition of corporatism employed in this article is the set of statements and practices about legal education produced by law schools, law teachers and legal scholars that emphasises and prioritises the accountability of teachers and students, the efficiency of the teaching process and the marketability of the law school. Corporatism is a relatively new discourse, but it has been particularly successful and its impact upon legal education has been enormous. Decisions within the law school about what is taught, by whom and to whom are increasingly likely to be based principally upon what decision-makers perceive as the most economically advantageous course of action.

For corporatism, critique is a mechanism through which not-traditional perspectives on the law can be introduced into the curriculum. The purpose of critique is to make the educational ‘product’ more distinctive and hence more marketable to potential customers. Critique has become almost fashionable, and many course descriptions include the word ‘critical’ to convey to potential customers the impression that the law course is innovative or will make graduates better lawyers. In the discourse of corporatism, the word ‘critical’ is used to market the law degree. Ultimately, however, critique is of relatively little importance to the overall shape and direction of corporate legal education.

Liberalism is defined in this article as the set of statements about legal education which endorse the liberalising of traditional legal education by advocating individual freedom, social responsibility and the inculcation of an informed rationality. Liberalism emphasises individual freedom by insisting that the law student be free to direct their own education and growth, that the law teacher be free from excessive intervention by the law school, and that the school be free from excessive intervention by the university, the profession and the state. References to the critique of law and of legal institutions are commonplace within liberal texts.

Liberal critique is a more rigorous form of critique than that produced by doctrinal, vocational and corporate legal education discourses. However, critique is still defined restrictively by liberal texts. The focus of critique is limited to particular legal phenomena and the criteria upon which judgement is made are generally limited to liberal standards. Liberal critique also enhances the status of liberal legal scholars who, by practising and teaching a theoretical and interdisciplinary form of critique, are more likely to be viewed by scholars within other disciplines as conducting research and practising teaching at a more academic and more rigorous level than those law teachers and scholars who are concerned merely with legal doctrine or legal training.

Pedagogicalism is the set of legal education texts produced by law schools and legal education scholars which emphasise the importance of effective teaching and learning and insist that law be taught in a manner consistent with orthodox education scholarship. Australian legal education scholarship has also embraced the orthodox notion of ‘effective teaching’. One distinctive characteristic of pedagogical critique is its identification as an important characteristic of the self-directed learner. Pedagogical critique is self-directed critique. The critical law student is one who questions not only when and in the manner they are told to do so by their teacher and the course materials; rather, motivated by their own desire, they question whenever they deem it appropriate to do so. Pedagogical critique indicates an ability and a willingness on the part of the students to think independently and to act on their own initiative. Pedagogical critique is a more reflective and thorough form of critique than those forms considered above. On the other hand, there are limitations upon the scope of critique that pedagogical texts rarely acknowledge.

Radicalism is the set of statements about legal education that criticises and seeks to undermine the status quo within the law school and within the legal system by exposing and questioning undisclosed political positions, gender biases, cultural biases and/or power relations within legal education and within law. Radical legal education discourse most explicitly encourages critique as both a pedagogical activity and as an outcome of legal education. Most radical legal education texts and practices are directly concerned with critique in one form or another.

Radical critique, like other forms of critique identified in this article, is concerned with revelation of that which is hidden. How does radical critique differ from the other forms of critique? There are three key characteristics of radical critique — the recognition of the potential for law to be used to as a tool for political oppression, the privileging of the perspective of the ‘other’ and the willingness to identify and work towards the achievement of a clear set of political and social objectives — which distinguish it from other forms of critique.

The law school is a complex disciplinary structure. It regulates its participants — legal scholars, law teachers, law students and administrators — sometimes through the explicit exercise of ‘sovereign’ power but more often through the subtle exercise of disciplinary power. Norms, beliefs, texts and practices constitute a disciplinary framework that limits not only what subjects within the law school can do, but also what they can know.

Six discourses dominate Australian legal education: doctrinalism, vocationalism, corporatism, liberalism, pedagogicalism and radicalism. Each discourse is also an expression of power, producing and privileging particular roles within the law school, and propagating a particular conception of critique. Critique is widely understood as largely irrelevant to the learning of law, or as no more than the skill of logical analysis, or as a word used to make a law subject or course appear more interesting. The wider, deeper, more complex, more self-reflective and more socially consequential possibilities for critique are commonly disregarded. It is hoped that this article will encourage a greater level of reflection on what ‘critique’ is assumed to mean within the context of legal education and what the consequences of those meanings might be. It is also hoped that there will be more consideration of the possibilities for critique within Australian law schools.