Thornton, Margaret --- "The Idea of the University and the Contemporary Legal Academy" [2004] SydLawRw 24; (2004) 26(4) Sydney Law Review 481

• The Idea Of The University And The Contemporary Legal Academy†

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The Idea of the University and the Contemporary Legal Academy†

MARGARET THORNTON*

Abstract

In light of the contemporary moves to transform the Australian university by subjecting it to the values of the market, the traditional idea of the university is in jeopardy. Freedom to teach, the unity of teaching and research, and academic self-governance are key factors associated with this idea. With its primarily professional and vocational focus, law has tended to be somewhat more ambivalent than the humanities about the freedoms associated with teaching and the pursuit of knowledge. Nevertheless, a liberal legal education is an ideal to which law schools have aspired over the last two or three decades. This article argues that, after a brief flirtation with a more humanistic legal education, the market is causing a swing back to a technocratic and doctrinal approach. The article draws on key proponents of the ‘idea of the university’, namely, Newman, Humboldt and Jaspers to consider what light these theorists might shed on the dilemma posed by the market imperative. It is suggested that a disregard for the presuppositions of the market could be disastrous for the future of the university law school.

† Earlier versions of this paper were presented at the Australian Law Teachers Association Conference, Griffith University, Brisbane, 6–9 July 2003; and the Australian Society of Legal Philosophy and Julius Stone Institute of Jurisprudence Annual Conference, University of Sydney, 18–20 July 2003. I acknowledge the financial support of the Australian Research Council (Discovery Grant), which enabled interviews to be conducted with a range of academics, including Deans and/or former Deans, in all Australian public university law schools. Warm thanks are extended to Jan Doust for assisting with the conduct of interviews and to Gabrielle Simm for research assistance.

* Professor of Law and Legal Studies, La Trobe University, Melbourne.

1.	The New Knowledge Economy

Within a contemporary neo-liberal setting, knowledge is the revolutionary trading commodity. As Lyotard observed, it has replaced land, raw materials and cheap labour in the struggle for power between nation states.[1] This understanding of the role of knowledge has become a global phenomenon as nation states everywhere seek to enhance their competitiveness on the world stage. Moreover, knowledge itself has been transformed. It is no longer stable, finite or predictable, but unruly and fluid. ‘New knowledge’ is shaped by informatics, postmodern scepticism and fickle mood swings, according to the dictates of the market.

The university is not only a primary site of the production of new knowledge, but also of new knowledge workers.[2] Accordingly, it is expected to play a key role in the process of transforming society and ensuring acceptance of the discourse of the market, which has been described as the ‘metanarrative of our time’.[3] The law discipline is central to this process of transformation, as it is expected to train ever increasing numbers of legal technocrats to serve the new knowledge economy. For example, an entire generation of contract lawyers is required to effect the privatisation of public goods and the facilitation of market activities — globally as well as locally. Law is also charged with safeguarding the valuable intellectual property interests that are generated by new knowledge.

Comporting with the neo-liberal imperative to privatise public goods and promote competition, a university degree itself has become a commodity like any other to be sold within the contemporary marketised environment. Law carries with it the added attractions of prestige, high student entry scores and relatively cheap provider costs, based on one of the highest student-staff ratios of any discipline.[4]

Generally speaking, universities are responding to the new knowledge challenge with alacrity. They are compromising, if not overtly forsaking, the traditional values associated with collegiality, public good and the disinterested pursuit of learning in favour of a constellation of values associated with entrepreneurialism and the market. The eagerness of universities to become market players is largely attributable to the funding crisis besetting Australian higher education. The paradox is that at the very moment the state placed pressure on universities to increase their student intake, the per capita funding of higher education places was curtailed.[5] Universities responded by taking in more students — and an endless spiral was set in motion.

The commodification of education tends to deflect attention away from the academic substance of what is taught. Because the market embrace has caused students to become ‘customers’ primarily interested in purchasing a product, preferably with a known ‘brand name’, they have become more interested in credentialism than the quality of the education they receive. To appeal to this new incarnation of the student-customer, as well as to maximise efficiency in accordance with the dictates of the market, law courses are being truncated. Hence, two-year, rather that three-year, graduate law degrees are now to be found, for example.[6] There has also been a reversion to stand-alone law degrees, despite the proliferation of combined degrees presently on offer at Australian law schools.[7] Only a decade ago, a stand-alone, or ‘straight’, LLB was considered inappropriate for school-leavers.[8] Such courses tend to focus on basic doctrine, for there is no time for anything else; the social is deemed to belong elsewhere. The approach revives the thought-to-be dormant positivistic myth that law is autonomous and disconnected from the social forces that animate it. Reflection and critique are inevitably sacrificed in the minimalist approach to credentialism.

Areas of law that are believed to facilitate market interests, such as corporations, business, trade practices, competition, international trade, intellectual property and taxation law, taught from a technocratic and applied perspective, are currently favoured within the curriculum. Although we are told, somewhat apologetically, that there is no longer time or space for critical or even contextual knowledge, the technocratic and applied approach operates to induce a kind of intellectual myopia. It is a somewhat sinister coincidence that the critical space has contracted at the very moment that big business has become more ruthless and ethically questionable. It would also seem that the voices of women, Aboriginal people and Others, which have only recently disturbed the benchmark masculinity associated with dominant social interests, and formerly occluded by legal positivist knowledge, are being silenced once more.[9]

Furthermore, I suggest that the pedagogical practices now in vogue operate to legitimise the technocratic approach to the curriculum and the evisceration of a critical space that comports with the market message. Block teaching vividly illustrates the point. This concentrated mode of delivery entails offering a subject over one or two weeks, usually in the summer or winter break, both to allow students to accelerate their programme and to attract full-fee students from other institutions. Visiting academics, including overseas ‘stars’, may be engaged to enhance the marketability of subjects. Although originally designed for coursework Masters students in full-time employment,[10] such modules may now be ‘double-badged’ to serve LLB students — in the name of efficiency. It is perhaps unsurprising that undergraduates sigh that after having completed a block module of six to eight hours of classes per day for four or five days, their minds are in a whirl. Needless to say, they have had precious little time to read anything.

Despite the undeniable sacrifice in quality, the lowest common denominator approach to credentialism suits today’s undergraduates, many of whom are compelled to work virtually full time in order to support themselves, as well as minimise their ballooning higher education debts. Furthermore, an increasing proportion of students choose to work in routine positions in law-related employment, in the hope of quick-starting their careers.

The ultimate in efficient delivery, euphemistically dubbed ‘flexible learning’, entails replacing lecturers with computers. While we may not have yet moved to accepting one on-line torts lecturer for the entire common law world — preferably from a North American Ivy League university — such a possibility may not be far off. On-line courses underscore the imperative in favour of conformity that is induced by competition policy. Furthermore, while ticking a box or pressing a computer button in response to a multiple-choice question can provide the ‘right’ answers, the technology tends to glide over the multifaceted and conflictual ethical problems posed by the market turn.[11]

2. Towards a Liberal Law School

The liberal law school does not have a precise denotation, but encompasses a profusion of perspectives, theoretical positions and critical methods that transcend a narrow, rules-oriented pedagogy.[12] Rather than rote learning, the focus is on learning for understanding, with regard to the ought, not just the is, of law. Given the diverse roles that lawyers play in a globalised world, they need to be ‘educated ... not simply trained as technicians of law’.[13] Reason, logical thinking and effective communication, all valuable skills for the legal practitioner, are enhanced by a liberal education, which encourages students to think for themselves. Perhaps Newman best summed up the meaning of liberal as a ‘habit of mind ... which lasts through life, of which the attributes are, freedom, equitableness, calmness, moderation, and wisdom’.[14] This ‘habit of mind’, it was believed, when transposed to a legal context, would enable the law graduate to respond appropriately to all manner of changed circumstances.

Knowledge, education and credentialism have become highly desirable in the information age, but treating them as tradable commodities has profound repercussions for universities and legal education. The glimmerings of a critical legal pedagogy in Australian law schools in the 1970s and 1980s coincided with the flowering of social liberalism and a concern for remedying social injustice.[15] Although no single pedagogical model predominated, and the extent and manner of critique remain contentious,[16] there was general agreement that a purely technocratic approach was no longer considered to be appropriate preparation for dealing with the complexities of late 20th century society. The influential Pearce Committee Report of 1987 did not advocate the development of a liberal law school as such, but recommended that attention be paid to theoretical and critical perspectives and, at the very least, law be taught in its social context.[17] As a result, widespread effort was put into modernising the curriculum and devising a more interactive pedagogy.[18] The passive ingestion of doctrinal legal knowledge through large lectures was consciously rejected in favour of small-group teaching and independent learning, along the lines already developed by the law schools at the University of New South Wales and Macquarie University. While doctrinal exegesis certainly did not disappear, for it remained the dominant approach, it was supplemented and enriched by a plurality of interdisciplinary and theoretical perspectives. The academic orientation was boosted by the recruitment of highly qualified academics with a commitment to legal scholarship; law teachers were no longer full-time practitioners who were part-time lecturers.[19]

Despite these propitious beginnings, the idea of the liberal law school barely had a chance to crystallise before legal education was shaken by the whirlwind of change induced by the market embrace. Given the propensity of law to mirror political trends, it is perhaps unsurprising that a depoliticised and positivistic legal pedagogy is once again being viewed as desirable, as the political pendulum swings from social liberalism to neo-liberalism. When we are informed that the economy is ‘booming’, it is best not to dwell too closely on the effect of ruthless corporate interests in relation to individuals and communities, particularly in the Third World. The market metanarrative effectively suppresses counter-discourses. Hence, it is no coincidence that the teaching of critical, theoretical and social justice perspectives within the core curriculum is contracting within law schools everywhere. Optional subjects that reflect the values of social liberalism may also now be dismissed as passé.[20] It is market-based and applied knowledge that is depicted as voguish and desirable. The change in orientation is not necessarily effected consciously or systematically, as it is insidious and takes place at multiple sites. In addition to the effect of government-funding policies and the legal labour market, there has been a general decline in faith in public institutions,[21] as well as a corresponding augmentation of the values associated with private good and the pursuit of individualism underpinning the conservative political swing.

The way that law is now taught in many institutions indirectly favours a depoliticised pedagogy. So insidious is the change of direction, that academics are unlikely to demur because it appears to be economically rational. As a result of the phenomenon of ‘massification’, for example, small group teaching as the primary mode of instruction has become a luxury in all but the better-endowed institutions.[22] In the past, the passivity of the lecture hall was moderated by tutorials or seminars designed to foster interaction, questioning and debate, but, as a cost-saving mechanism, tutorials may now be offered intermittently or abolished altogether, although some institutions have moved to on-line ‘chat rooms’ in lieu. Interviewees have referred to the adoption of a lowest common denominator approach as the large lecture method is once again favoured because of the pressure to transmit basic doctrine. Furthermore, it would appear that the majority of law students actually prefer lectures, because they assume that the knowledge they are receiving from a lecturer is more likely to be authoritative and examinable than the tentative opinions of their peers in discussion groups.[23] This pressure from student-customers for the packaged delivery of finite knowledge also encourages the reversion to a positivistic approach with its assumption of ‘right’ answers.[24]

Assessment has also changed to accommodate the vastly increased numbers of students. Reflective essays that foster research and critical engagement with troubling issues are no longer feasible; even the most dedicated academics have difficulty managing the marking loads. In addition to the correlative increase in ‘administrivia’ and pastoral care, academics are obliged to demonstrate their value to the university through research productivity. The relentless pressure to publish has influenced the reversion to examinations as the primary form of assessment, which also favours a focus on basic doctrinal knowledge. This form of assessment suits time-poor students, as well as academics. Reflective essays take too long to research, as well as assess; they cannot be subsumed into the neat portfolio of orthodox legal knowledge that the ‘customers’ prefer.

The idea of a liberal legal education demands interrogation of the knowledge purveyed, which necessarily involves far more than a set of technocratic rules. Those wishing to educate enlightened lawyers for the future have insisted that students continue to ask the imponderable questions as to the how, the why and the ought of law. However, the market embrace is causing Australian law schools to discourage such questioning.

3.	The Idea of the University

According to Bill Readings, the university is in ruins,[25] but this assertion prompts us to ask: what is the university and what is it for? What does it mean to evoke the well-known phrase — the idea of the university — in the commodified and marketised context that I have described? According to Kant, an idea ‘is nothing other than a concept of perfection which is not yet found in experience’.[26] So far as the university is concerned, this ‘concept of perfection’ has been traditionally associated with a community of scholars pursuing the life of the mind: thinking, reading, writing and engaging in debate, free of the pressure to demonstrate that everything must have use value vis-à-vis the market. It would seem to be inevitable that this idea becomes distorted when money is short and university managers have to make choices. Is it enough that universities continue to pay lip service to an idealised notion of liberal legal education, while accepting economic rationality as the primary driver?

Readings argues that there are three basic ideas associated with the modern university: reason, culture and excellence. Reason, influenced by Kant, involves the dispassionate pursuit of knowledge and philosophical reflection. Culture is the special role assigned to universities to unify, safeguard and transmit knowledge in the interests of the nation state. Reason and culture are linked by the third idea, the evaluative criterion of excellence. However, Readings argues that the idea of excellence has been rendered meaningless in the contemporary university because of the collapse of reason and culture.[27] Central to Readings’ thesis that the university is in crisis is the view that it is no longer linked to the destiny of the nation state, which is declining in importance in a globalised world. The withering away of the vital relationship between the university and the nation state has seriously impacted upon liberal knowledge:

The current crisis of the University in the West proceeds from a fundamental shift in its social role and internal systems, one which means that the centrality of the traditional humanistic disciplines to the life of the University is no longer assured.[28]

As Readings observes, even thinking does not count when the performative framework in which we now operate provides no box to be ticked.[29] Scholarly activities are of value only if they can be linked to a quantifiable output. Hence, academics are required to establish their productivity through regular auditing of performance. Karl Jaspers reports that he published nothing for nine years after being appointed to a Chair because he was thinking through a major philosophical treatise:

Only the calmness of meditation in the unconstrained flow of the imagination allows those impulses to become effective without which all work becomes endless, non-essential, and empty.[30]

Jaspers’ seeming lack of productivity could result in sanctions and possible redundancy in the contemporary Australian university, a fate likely to befall many other notable thinkers. In contrast, the publication of ‘endless, non-essential, and empty’ articles is more likely to secure the approbation of university managers. Productivity is directed to the quantity, rather than the quality, of what is published. Provided that the articles appear in ‘refereed’ journals, one need enquire no further.[31] Most notably, however, the primary focus of research is not on ‘outputs’ — the books and articles published — at all, but on ‘inputs’ — the grant income generated in order to conduct the research.

Within this skewed academic universe, applied research with direct market value is favoured. Hence, consultancies for, and linkages with, industry now attract financial rewards in the same way as more conventional basic research. The tailoring of the university research effort to private ‘end users’ underscores the way that market interests are being facilitated. However, no Australian university can afford to disregard the revised schema of research and publication because it is inextricably intertwined with income generation.

But, once again, one must ask, what does this courting of private interests mean for the idea of the university? Is only a pale reflection of the idea possible within the new public/private model? Is the idea of the university so malleable that it is a luxury that can now be pursued only by wealthy and prestigious institutions? The experience of some of the prominent United States universities, where private benefactions and hybrid funding models are well established, supports such a proposition. The University of Chicago, for example, regards itself as a model research university but acknowledges that its wealth has permitted it to subordinate economic to academic motivation.[32] Chicago poses, but does not answer, the question as to what would happen to the university ideal if the money were no longer there to support the institution in the manner to which it has become accustomed.

Are less well endowed Australian public universities now compelled to defer to the constraints of the market in determining the character of their teaching and research? Together with top-down line management, which has replaced collegial norms in most institutions, the corporatised package is now likely to include cost-cutting measures, such as casualisation and loss of administrative support for teaching and research. In addition, academics are expected to re-invent themselves as entrepreneurs — raising money by offering short, offshore and on-line courses, as well as engaging in consultancies.

Let us turn to Humboldt, Newman and Jaspers see whether they can assist us, despite Readings’ scepticism. These theorists, like Readings, espouse a wider canvas than legal education, but the liberal law school takes its cue from the idea of the university. A brief summary of their main ideas will be presented and considered in the context of contemporary developments in legal education.

A.	Wilhelm von Humboldt

The primary aim of the mediaeval universities was scholastic, which means that they focused on teaching, usually in a religious context. By the mid-18th century, universities in both England and Germany were in a state of decline, but the French revolution was an important catalyst for change. Humboldt emerges from among the German Idealists as an iconic figure in the history of the modern university, for he is credited with unifying teaching and research.[33] Humboldt’s concept of research strikes a chord with us because he recognised that knowledge is not a stagnant variable,[34] but has to be constantly revived by new knowledge. He envisaged that research would be conducted by professors in conjunction with their teaching role.

Humboldt was a civil servant for part of his life, becoming head of culture and education within the Prussian Ministry of the Interior in 1809. Despite his official position, his writings evince a sceptical view of the exercise of state power.[35] Even though the university was to be state-funded, and charged with safeguarding the culture of the nation state, the freedom of the individual was to be maximised and academic work itself protected from the distortions of direct government control. Humboldt’s memorandum, which inspired the creation of the University of Berlin in 1810, projected a university based on three formative principles: freedom of teaching, unity of research and teaching, and academic self-governance. For Humboldt, freedom was the keystone of education.[36] I will elaborate upon these principles shortly.

Humboldt is also credited with the initial use of the phrase ‘the idea of the university’, by which he meant an ‘exemplary form of life, in which its members share intersubjectively’.[37] He believed in the full development and training of the personality so as to encourage clear and original thinking. In this way, the university played a fundamental role in the development of character — Bildung.

As law was one of the higher faculties, it belonged in the university, but this did not include practical skills. Humboldt did not see what he considered to be utilitarian, practical or artisan-like functions, such as drafting a brief, as the preserve of the law faculty. He believed that this skill could be learned as an apprentice, without the need to attend university at all.[38] Like most other theorists of the idea of the university, Humboldt accepted that professional legal knowledge was marginal to the social mission of the university.

B.	John Henry Newman

Newman’s The Idea of a University[39] is frequently the starting point in the Anglo-Australian context for thinking about the university today.[40] Newman’s treatise is more accessible than Humboldt’s fragmentary observations, even though it might be thought that a work produced for the gendered, elitist, colonial and Catholic Ireland of 150 years ago would have little to say to contemporary postcolonial, egalitarian and secular humanists wrestling with mass education. What strikes a chord with all those concerned about the direction presently being taken by universities is Newman’s emphasis on the love of knowledge for its own sake. Even as a theologian, Newman did not believe that knowledge should have a religious or moral cast. This is despite the fact that his idea of the university is connected to the church rather than the state. He believed in a concept of ‘universal knowledge’ — liberal knowledge informed by reason — and the role of the university as being purely intellectual.[41] As a corollary, education was ‘an acquired illumination’[42] — the telos of the good life.

Like Humboldt, Newman is primarily concerned with the cultivation of the intellect, not vocational training. He accepted that law belonged in a university, but it had to be informed by reason to justify its inclusion. Thus, while he recognised the significance of vocational training as an end in itself, he distinguished education as ‘higher work’. Committing rules to memory could not contribute to the development of the mind or the formation of character.[43] Newman understood the unity of knowledge to encompass all kinds of knowledge, but it should not be limited to a particular kind of practical knowledge or skill. Newman understood that education could serve instrumental ends as well as being valuable in itself, but the liberal education he envisaged carried social benefits with it that could not be impeded by instrumentalism:

If then a practical end must be assigned to a University course, I say it is that of training good members of society. Its art is the art of social life, and its end is fitness for the world. It neither confines its views to particular professions on the one hand, nor creates heroes or inspires genius on the other  ... . But a University training is the great ordinary means to a great but ordinary end; it aims at raising the intellectual tone of society, at cultivating the public mind, at purifying the national taste, at supplying true principles to popular enthusiasm and fixed aims to popular aspiration, at giving enlargement and sobriety to the ideas of the age, at facilitating the exercise of political power, and refining the intercourse of private life.[44]

Despite Newman’s commitment to the cultivation of the intellect in ways that could challenge existing knowledge, his idea of the university did not include research, which he assigned to separate research institutes. Ker endeavours to explain away what became a source of reproach for Newman in the 20th Century, by arguing that too much has been made of Newman’s alleged hostility. Ker suggests that the essays have to be understood in their context as an argument for a teaching university, not against the inclusion of research.[45] Indeed, as a matter of logic, Newman’s emphasis on the originality of scholarship would seem to imply some element of research, albeit not necessarily of the formal, mono-disciplinary kind, which is what he seems to be disavowing.

C.	Karl Jaspers

It was a piece by Habermas, also entitled ‘The Idea of the University’, that excited my interest in Jaspers, whom Habermas quotes as presciently observing:

Either we will succeed in preserving the German university through a rebirth of its idea in the decision to create a new organizational form, or the university will end up in the functionalism of giant institutions for the training and development of specialized scientific and technical expertise [emphasis added.][46]

Confusingly, Jaspers published not just one, but two books entitled The Idea of the University. The first, from which the above quotation derives, was published in 1923.[47] I relied on the second book, which was published in Germany in 1946.[48] In his autobiographical essay, Jaspers explains that the 1946 essay retained the same sentiments as the 1923 essay but it was rewritten to suit the resurrection of the German university after the War.[49] It is notable that there is no reference in the second Idea to the functionalism Jaspers feared two decades earlier, but it was this allusion that I felt contained echoes of the modern state’s deployment of the university to develop the new knowledge economy within the contemporary world order.

For Jaspers, like Humboldt and Newman, the university is a community of scholars and students engaged in the task of seeking truth.[50] Unlike Newman, Jaspers believed that the pre-eminent role of truth made research the foremost concern of the university.[51] Jaspers regarded the linkage between teaching and research as fundamental to the idea of the university. These twin pillars of the academy — teaching and research — would be guided by philosophy, which Jaspers believed was the guardian of the idea of the university.

Jaspers presents a powerful argument for retention of the liberal law school. He did not advocate a separate institute for law, but argued that training should be indissolubly linked to general education and research. To cut one off from the other would cripple the university.[52] If training is not informed by the broader philosophical values of the university, Jaspers believed the danger was that an autonomous discipline could lose sight of its own presuppositions. Thus, without a philosophical foundation, jurisprudence would sink into an abyss of total arbitrariness’.[53] It lapses from a concern with statute law into legal rationalisation of lawless brutality and licence.[54]

Jaspers is all too conscious of the tensions and conflicts besetting universities because of their dependency on the state, even though they run themselves.[55] While the state authorises that independence, he recognised that it can destroy the university if it so chooses.[56] Jaspers is known to have taken an anti-Nazi stance, which led to him being dismissed from his Chair in 1937.[57] He does not advert directly to this experience in The Idea, but presents some salutary observations regarding how academics operate in degraded situations:

When approached with contempt, treated with disrespect, manoeuvred into situations which virtually impose unethical conduct, and exposed to academic politics in the most literal sense, professors, like the rest of mankind, will eventually respond in conformity with the worst expectations.[58]

Furthermore, they will avert their gaze when colleagues are being treated unjustly in order to safeguard their own positions. Jaspers draws attention to the drawbacks of institutional life in difficult times, particularly the way power, jealousy and ambition operate to defeat the greater good. He also recognises the inherent corporatist tendency in favour of the second best:

Not only the university but all corporate bodies tend to maintain an unconscious solidarity against both the excellent and mediocre, prompted by such anti-intellectual motivations as fear of competition and jealousy. The excellent are instinctively excluded from fear of competition, just as the inferior are rejected out of concern for the prestige and influence of the university. The ‘competent’, the second-rate, are selected, people who are on the same intellectual level as oneself.[59]

When the incompetent person occupies a leadership position, that person seeks to compensate for lack of ability by gratifying their power drives.[60] Intellectual brilliance, unorthodox ideas or questioning of any kind, are not appreciated among the ‘managed’; docility, flattery and conformity are preferred. In a corporatised institution, the gift of preferment lies in the hands of managers, for ‘they are tempted by the feel of power, by the craving for recognition and gratitude’.[61]

Jaspers’ insights underscore the importance of retaining a space between the state and the university. He shows that freedom and independence influence not only the pursuit of truth in an academic sense, but all aspects of the culture of the university. This includes the vital question of who is appointed, particularly to leadership positions, and how the institution is run. Top-down managerialism, in conjunction with declining resources and the pressures induced by the market, contributes to the impoverishment of the traditional idea of the university and the common good.

4.	Extrapolating from Humboldt, Newman and Jaspers
A.	Freedom to Teach

Humboldt, Newman and Jaspers all agree that the pursuit of truth should not be constrained in any way; it goes to the very heart of the idea of the university. Truth, however, is no longer regarded as finite, unequivocal and attainable. Postmodernism has shaken society’s blind faith in truth by exposing the fact that it invariably possesses both an epistemological standpoint and a telos. Hence, within the contemporary context, ‘truth’ is likely to be tempered by the instrumentalism of the market; a body of autonomous knowledge is impossible.

Because law is a professional degree designed to equip lawyers for practice, law school academics have never possessed an unqualified freedom to teach. This manifestation of freedom has traditionally been associated with the Humanities, which is not constrained by specific professional and vocational requirements in the same way as the law discipline. The post-War period was nevertheless marked by a concerted endeavour to overcome the trade school image that dogged Australian law schools. The hope was that law would be accepted as a legitimate intellectual discipline within the university in the same way as a Humanity. Newman’s distinction between education and vocational training, and the implication that law-for-practice could not be subsumed within his concept of universal knowledge, strikes a raw nerve with the proponents of a liberal legal education. Newman is undoubtedly relying on the 19th century English distinction between the more philosophical branches of law that were taught at Oxbridge — Jurisprudence, Roman Law, and Legal History — and law for practice, which was taught in the Inns of Court.[62] University law schools in the common law world were a phenomenon of the late 19th century, which sought to combine the scholarly and the practice elements. Striking the right balance between academic prescripts and the world of practice nevertheless remains a perennial challenge.[63]

While there is a degree of choice at the margins, the ‘core’ legal curriculum is highly circumscribed by the ‘Priestley Eleven’, the eleven areas of knowledge specified for admission in all Australian jurisdictions, which take up as much as two-thirds of the curriculum in most law schools.[64] Optional subjects allow more freedom but, even then, we see how contemporary pressures have had the effect of reining in this freedom, as students choose subjects which they believe will boost their chances in the labour market. These subjects tend to be related to the areas of business and property privileged by Priestley, including corporations law, trade practices, international trade and intellectual property. Thus, in order to make themselves more attractive to prospective employers, students have succumbed to the pressure of the market and allowed themselves to become intellectually docile. Even when they evince an interest in broader social issues, they worry about the way subjects appear on their transcripts.[65] They wish to appear apolitical, not radical, in order to signify their willingness to facilitate the work of big business; nothing must jeopardise their chances of employment, preferably with a prestigious corporate law firm. Because of the comparatively low demand for the more reflective, philosophical, non-business subjects, it may then be deemed economically rational to cut them. In contrast, the Priestley-related electives are increasingly viewed by students as quasi-compulsory.[66] The pressure to include more and more specific skills also underscores the orientation towards teaching law as it is, further displacing critique.

It may be seen, therefore, that freedom to teach, a central tenet of the idea of the university has become increasingly circumscribed, although fetters were imposed when law for practice was first taught within the university. The pressures induced by the legal profession and the market have accentuated the limited ambit of this sphere of freedom, not just via curricular offerings but via modes of flexible delivery, pedagogical practices and assessment. The powerful role played by student-customers within the new market paradigm clinches the fact that there is little space left for the traditional idea of freedom to teach and critique.

B.	Unity of Teaching and Research

There is a similar caveat in respect of Humboldt’s second principle, which is endorsed by Jaspers: the unity of teaching and research. The positivist paradigm that has dominated legal education in the Anglo-Australian law school has been notoriously resistant to knowledge other than legal doctrinalism, apart from a handful of canonical legal theorists, such as Dicey. The idea of law as a self-referential system has allowed a carapace to form around itself in order better to resist extraneous knowledge.[67] This has not been entirely successful and, indeed, law could not retain its legitimacy without, in some way accommodating social change.[68] Despite longing to be accepted as a liberal art, both the professional constraints and the positivistic orientation confirm that law always has an epistemological standpoint. This is not to say that history or philosophy lack dominant standpoints, or that those standpoints are not contested,[69] but the self-referentialism of legal positivism, together with the ideological and professional role of law, have allowed it to resist incursions more effectively. As Duncanson points out, there are certain parameters within which a critique of law is acceptable that require deference to prevailing practices and institutions.[70] Thus, while a body of vibrant interdisciplinary scholarship has emerged from the law discipline in recent years as a result of the impact of feminism, cross-culturalism, and a range of other critical perspectives, Johnstone and Vignaendra’s research found their impact to be minimal on the mainstream undergraduate law curriculum.[71]

Law has a limited capacity to take on board new knowledge and incorporate it into teaching. Its favouring of technocratic knowledge serves an ideological purpose in obscuring the play of power beneath the surface in the struggle for substantive justice. I suggest that the dominance of the market, with its inevitable inequalities and exploitative practices, favours a technocratic approach and induces a resistance to critique. This can be seen clearly by the pressure brought to bear by student-customers to slough off social and critical knowledge and produce a bare-bones package of orthodox and uncontentious knowledge that can be easily imbibed and regurgitated in examinations. The movement away from research essays as a primary mode of assessment further disrupts the potential for the conjunction of teaching and research, as well as neutralising the possibility of critique.

C.	Academic Self-Governance

Humboldt’s third formative principle: academic self-governance, is also a parlous and ambiguous concept in the contemporary university, not just in the law school. The Commonwealth Government as the major source of funding has always theoretically retained a high degree of control but, in practice, universities have been largely left alone to run their own affairs. The Dawkins’ reforms brought about an end to the binary system in higher education,[72] according considerable leeway to universities over what courses they offered (with the exception of Medicine). This dimension of freedom manifested itself in a dramatic increase in the number of law schools — from 12 to 28 between 1989 and 2001.[73] While Dawkins signalled the beginning of a system of ostensible deregulation, the Commonwealth in fact not only retained significant power over universities through the funding of student places and research initiatives, but strengthened control through various regimes of audit and accountability.[74]

Parallelling the new forms of governmental scrutiny, marked changes also occurred within the internal governance of universities. These changes were encouraged by the Commonwealth.[75] The trend has been to move away from collegial decision-making, long the university norm, in favour of a top-down form of managerialism, in order to ensure that the teaching and research effort of universities comports with state interests. In the new corporatised university, the Vice-Chancellor has become its CEO, modelled on the private-for-profit corporation. He or she, but more commonly ‘he’, is surrounded by a group of deputy and pro-Vice-Chancellors, who form the upper echelon of a complex line management structure. The line of command fans downwards through layers of control that includes mega-deans, deans, heads of schools and departments, all responsible for the management of a unit, but with circumscribed authority because they are answerable up the line. The effect might be likened to one of subinfeudation, whereby all staff are bound through a web of reciprocal relations, secured through multiple regimes of audit and accountability. Within this feudalised structure, academic freedom and collegiality are inevitably constrained.

It is notable that the law discipline now tends to be located within the pyramidal base of the hierarchy. In the purported interests of rationalisation and efficiency, the trend has been to include law as a constituent within a multi-disciplinary faculty. Business and management have become law’s disciplinary associates, rather than humanities and social sciences. The law schools located in these new configurations have restricted autonomy. Even over matters of curriculum and pedagogy, they may be expected to conform to common templates that are less than ideal. Some law deans complain that they have to negotiate constantly with faculty executive deans over trivial matters. The absence of budgetary control is felt acutely, particularly when law schools are expected to cross-subsidise other faculty constituents.[76] The issue of autonomy is likely to be most problematic within the ‘new’ universities, the former Colleges of Advanced Education, because collegial decision-making was never a recognised norm of CAE culture. On the other hand, perhaps unsurprisingly, my research suggests that law schools that have been best able to resist amalgamation and continue as separate faculties retain a considerable degree of autonomy over their affairs. Even then, academics in these schools mutter about the increasing propensity of senior managers to hand down edicts, rather than engage in consultation. The over-administration of the contemporary law school inevitably stifles freedom and constricts creative intellectual life.[77]

The vulnerability of universities vis-à-vis the state is very apparent in Australia as funding regimes are being radically reshaped under the Nelson Reforms. The case of law is striking, as it is funded at the lowest rate.[78] While the expectation is that universities will make up the shortfall through revenue-raising mechanisms, including fees, this reform could sound the death knell for vulnerable institutions lacking the advantages of tradition and location that serve to confer a market edge. The Government may not have set out deliberately to destroy particular universities but, as Jaspers recognised, a state possesses this power,[79] and the imposition of a social Darwinist ‘survival of the fittest’ environment through policies of underfunding and competition, could indirectly exert that effect.

The central role of the university in safeguarding and transmitting a society’s culture is now passé. Today, a functional role of an altogether different kind has been assigned to universities, that is, to serve the state through the market. This role has been effectively secured through perpetual under-funding from the public purse in conjunction with regimes of audit and compliance, which require particular targets and levels of productivity to be met in order to qualify for parsimonious hand-outs.

Thus, it can be seen that the traditional idea of the university in no way comports with the contemporary Australian law school in terms of either freedom of teaching, unity of research and teaching or academic self-governance. While these principles, particularly freedom of teaching, and unity of research and teaching, have only ever had limited purchase in law schools, corporatisation has eviscerated them.

5.	Conclusion: Reclaiming a Semblance of the Idea

Despite having argued that there is only a semblance of the traditional idea of the university still to be found in the contemporary law school, where the concepts of freedom and autonomy have always been constrained, I nevertheless suggest that Humboldt, Newman and Jasper’s observations can fruitfully illuminate our understanding of the corrosive effects of the commodification of legal education. In particular, a sound philosophical orientation is able to act as a buffer against the depredations of the market, whereas a purely technocratic approach to legal education can only effect a moral neutering of the law student.[80] The question as to whether A or B win in a dispute has no significance beyond the fair application of the legal rules. Legal decision making is then in danger of falling into the ‘abyss of total arbitrariness’ against which Jaspers warned. The questionable ethics of multinationals go unremarked because the primary focus is on the technical rules of contract or how to avoid a regulatory regime in the interests of a corporate client.

Similarly, the market metanarrative permits economically rational justifications to be adduced in respect of legal education programmes designed primarily as revenue raising mechanisms. I have suggested that changed modes of course delivery and assessment, reduced administrative support and the casualisation of the workplace all operate to restrict interrogation of the knowledge purveyed. Judy Lancaster argued a decade ago that turning away from critique was a strategy designed to deflect attention from the increasing emphasis on training and material production.[81] The wholesale embrace of neo-liberal policies has strengthened this trend.

I found Jaspers particularly pertinent in light of the contemporary dilemmas. He wrote at a time of great pressure from the German state to develop new forms of technical knowledge in its struggle to assert itself on the international stage.[82] I have suggested that a parallel may cautiously be drawn in the way that the contemporary state has co-opted universities to produce new knowledge workers and promote the market, at the very moment it has starved them of funds. Universities have been forced to commodify their educational ‘products’, compete within a limited domestic market and make forays into the international market, all filled with traps for the unwary. Not only are there vast linguistic and cultural barriers in respect of offshore markets, there is something repugnant about a 21st century form of neo-colonialism in which we are going to teach them law — with all its Anglo-Australian biases, because a positivistic legal education seldom equips graduates to do anything else. What is more, if Masters degrees in areas such as international business law generate profits, the tendency is to plough those profits back into further market initiatives rather than use them to improve the quality of the ‘product’ offered to non-English speaking international students.[83] Neo-liberal indicators and the profit motive thereby effectively displace the social justice, as well as the intellectual, ends of higher education.[84]

Jaspers also reminds us of the need to be sensitive as to how the market may operate to mask discrimination towards disfavoured scholars, including social theorists and legal philosophers, who do not willingly adapt to the new orthodoxy. They may suddenly find that their services are dispensable after a line manager has determined that their scholarship lacks use value; they may be compelled to leave if they are unable to attract research grants; or it may be determined that legal theory should no longer be taught because it is not sufficiently popular with the student-customers. Furthermore, the targeted staff may be unwilling or unable to reinvent themselves and accept deployment into teaching commercial law or other applied area. As Jaspers suggests, the harm of such an action is systemic, as well as individual, for an institution with a corporate mission unrelated to the idea of the university, quickly slides into mediocrity. We can already see signs of this occurring with the favouring of entrepreneurialism over scholarship as a criterion for selection, particularly in leadership positions.

The lessons from the theorists of the idea of the university should give us pause, as academics rush maniacally from one task to the next, promoting the self via productivity and performativity, but lack the time to reflect on what is happening around them, as one Emeritus Professor observed:

There is a strong pressure on people to meet certain performance criteria. This has in my view had an impact on collegiality because it means, or people think it means there’s less time for conversation .... In my early years here, everyone came to morning tea and nearly everyone came to tea in the afternoon. We had a faculty room from the very outset for that purpose and it was an opportunity ... to discuss both small and large issues ... That very important manifestation of collegiality I think has long gone ... One of the things has been this concern among young people, particularly those on fixed term contracts: ‘I’ve got to do this; I’ve got to write this; I’ve got to have this published; I’ve got to complete my higher degree, or else’.[85]

The absence of reflective space ensures that academics focus single-mindedly on promotion of the self in order to succeed within a competitive legal labour market. In this way, we all become complicit in eroding the collegiality and self-governance that Humboldt, Newman and Jaspers recognised as central to the idea of the university. Simultaneously, we also become complicit in promoting and maintaining the market culture.

To revert to teaching black letter law or skills for practice, in a primarily instrumental sense, is to transmit something approximating what Jaspers called ‘frozen knowledge’.[86] That knowledge may change formally in terms of doctrine, but it requires no real research input, and anyone with basic qualifications can teach it — the law school generalist or the casual teacher. While many law teachers will flinch at the frozen description and claim that the positivist paradigm no longer prevails, the evidence suggests that the market, with the aid of nutshells and cribs, is inducing a reversion to the privileging of knowledge of at least the semi-frozen kind. The approach is functional because the knowledge can be purveyed in large lectures or on-line. It also tends to slough off questioning and critique in a context where only applied knowledge is deemed to have use value, but if that is all that is taught, the legal academy is no longer a form of life, for its spirit has gone. The teaching of commodified legal knowledge then need not take place in a university at all. It can be taught equally well, and probably more cheaply, by private commercial operators, technical colleges or in-house service providers on behalf of corporate law firms. The idea of the law school as trade school could once again become a reality, thereby eviscerating all vestiges of a liberal legal education.

Professional and vocational imperatives, as suggested, inevitably constrain the notion of freedom within the law school. Nevertheless, the Kantian articulation of an idea suggests that we must aspire to the way things might be, even if realisation of the vision always eludes us. The pragmatism, functionality and cynicism of the market have caused us to lose sight of the greater good. The constellation of values associated with the idea of the university informs our understanding of the liberal law school that the Pearce Committee, however imperfectly, sought to engender in Australian legal education less than two decades ago. The Committee’s articulation of a new way of thinking about Australian legal education represented an inchoate attempt to link legal education to the idea of the university by emphasising the centrality of theory and critique. This did not mean that a particular philosophy or perspective had to be espoused, but a broad understanding of law was advocated to foster the development of a critical consciousness. While this conceptualisation of the idea of the university may be uncontentious in theory, a look at university law schools around the country underscores my fear that the ideal is being sacrificed to the rhetoric of the market and individual good. This is not to deny the existence of pockets of resistance, where committed individuals are doing their best to continue to imbue their students with a sense of the idealism associated with a liberal legal education.[87]

I do not have a simple blueprint as to how to avert what seems to be an unstoppable market juggernaut bearing down on an already beleaguered legal academy. However, as Readings informs us, if the university is in ruins and we inhabit those ruins, we have an obligation to do what we can.[88] Individual acts of resistance therefore cannot be discounted. Thus, we must have due regard to the presuppositions of the market culture presently in the ascendancy. We are doing a disservice not only to our students, but also to the legal profession and the wider society, if we accept the minimalist approach to credentialism now in vogue. What is more, capitulation endangers not just an already fragile liberal law school, but the very future of the legal academy itself for, as suggested, the ascendancy of competition policy is bound to spawn a host of private providers.

The legal academy is presently part of the university, which is a living organism comprising staff and students engaged in an intersubjective project that includes intellectual excitement, new ways of thinking and the legal imaginary. If the life of the academy is allowed to ebb away in favour of the one-way transmission of sterile technocratic knowledge in the interests of the market, it cannot be resuscitated, as Jaspers recognised:

The idea of the university lives decisively in the individual students and professors, and only secondarily in the forms of the institution. If that life would become obliterated, the institution can not possibly save it.[89]

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[1]Jean L Lyotard, The Post Modern Condition: A Report on Knowledge (1984).

[2]I have expanded upon the contemporary context elsewhere. See Margaret Thornton, ‘Among the Ruins: Law in the Neo-Liberal Academy’ (2001) 20 Windsor Yearbook of Access to Justice 3; Margaret Thornton: ‘The Demise of Diversity in Legal Education: Globalisation and the New Knowledge Economy’ (2001) 8 Int’l J Legal Profession 37; Margaret Thornton, Inhabiting a Political Economy of Uncertainty: Academic Life in the 21st Century, Occasional Paper 2 (Melbourne: Institute of Postcolonial Studies, 2002).

[3]Peter Roberts, ‘Rereading Lyotard: Knowledge, Commodification and Higher Education’ (1998) 3 Electronic J of Sociology <http://www.sociology.org/content/vol003.003/roberts.html> (20 July 2004).

[4]Craig McInnis & Simon Marginson, Australian Law Schools After the 1987 Pearce Report (Canberra: AGPS, 1994) at 19. Commentators from Britain and Canada have noted that legal education is subjected to similar constraints, including being ‘run on the cheap’. See Bob Hepple, ‘Some Concluding Reflections’ in Peter Birks (ed), Reviewing Legal Education (1994) at 110; Harry Arthurs, ‘The State We’re In: Legal Education in Canada’s New Political Economy’ (2001) 20 Windsor Yearbook of Access to Justice 35 at 49.

[5]McInnis & Marginson, id at 13–19.

[6]In order to bypass decisions made by some universities that underdraduate domestic students should not be charged full fees, Melbourne University Private’s JD (Juris Doctor) offers a two-year degree for graduates, Monash University Law School a two-year LLM, and Deakin University Law School a two-year LLB. Other universities are planning two-year programs, badged as ‘postgraduate’, to enable full fees to be charged. In the UK, the academic course for graduates, the Common Professional Exam (CPE), is only one year in duration. For details, see the Law Society for England and Wales website <http://www.lawsociety.org.uk/home.law> (20 July 2004).

[7]Richard Johnstone & Sumitra Vignaendra, Learning Outcomes and Curriculum Development in Law: A Report commissioned by the Australian Universities Teaching Committee (AUTC) (Canberra: Commonwealth of Australia, 2003) at 67–69.

[8]McInnis & Marginson, above n4 at 158.

[9]The corporatised law school, with its top-down masculinist style, conduces to the re-emergence of an institutional gender regime. See, for example, Richard Collier, ‘The Changing University and the (Legal) Academic Career – Rethinking the Relationship between Women, Men and the “Private Life” of the Law School’ (2002) 22 Legal Studies 1; Margaret Thornton, ‘Neoliberal Melancholia: The Case of Feminist Legal Scholarship’ (2004) 20 Aust Feminist LJ 7.

[10]Johnstone & Vignaendra, above n7 at 189–90.

[11]This is not to deny the valuable experimental work presently being undertaken with computer-based assessment. See, for example, Michael Lambiris, ‘Using Computer-based Tests for Continuing and Final Assessment of Students Studying Law Subjects’, paper presented at the Australasian Law Teachers Association (ALTA) Conference, Charles Darwin University, 8–11 July 2004.

[12]For a discussion of the values associated with the liberal law school, see Anthony Bradney, Conversations, Choices and Chances: The Liberal Law School in the Twenty-First Century (2003).

[13]Annie Rochette & W Wesley Pue, ‘ “Back to Basics?” University Legal Education and 21st Century Professionalism’ (2001) 20 Windsor Yearbook of Access to Justice 167 at 186.

[14]John Henry Newman, The Idea of a University (ed with introd & notes by Ian T Ker) (1976, 1st ed 1852) at 96.

[15]Johnstone & Vignaendra, above n7 at 2, locate the genesis of the liberal model of legal education in the 1980s, but Monash, UNSW and Macquarie universities consciously set out a decade before to establish law schools that transcended the ‘trade school’ model.

[16]Ian Duncanson, ‘Legal Education and the Possibility of Critique: An Australian Perspective’ (1993) 8 Can J Law & Socy 59; Nickolas J James, ‘A Brief History of Critique in Australian Legal Education’ [2000] MelbULawRw 37; (2000) 24 MULR 965; Ian Duncanson, ‘Broadening the Discipline of Law’ [1994] MelbULawRw 26; (1994) 19 MULR 1075.

[17]Dennis Pearce, Enid Campbell & Don Harding, Australian Law Schools: A Discipline Assessment for the Commonwealth Tertiary Education Commission (Canberra: AGPS, 1987).

[18]Johnstone & Vignaendra, above n7 at 296 ff.

[19]Michael Chesterman & David Weisbrot, ‘Legal Scholarship in Australia’ (1987) 50 Modern Law Rev 709 at 711.

[20]Thornton, ‘The Demise of Diversity’, above n2.

[21] For example, Onora O’Neill, A Question of Trust, BBC Reith Lectures (2002).

[22]The first generation universities, the ‘Sandstones’, are usually well positioned in the market because their longevity and location enable them to augment their income by charging full fees. There is a government limit of 25 per cent (35 per cent in 2005) as to the proportion of full-fee undergraduates a university may enrol, but no such restriction operates in the case of coursework Masters students.

[23]Compare Johnstone & Vignaendra, above n7 at 304.

[24]Oliver argues that pressures of the kind I have outlined were threatening the liberal law degree in Britain in the early 1990s. See Dawn Oliver, ‘Teaching and Learning Law: Pressures on the Liberal Law Degree’ in Birks, above n4 at 80.

[25]Bill Readings, The University in Ruins (1996).

[26]Immanuel Kant, Werke, Vol 12, Über Pädagogik (1964) at 700, quoted in Michael Hofstetter, ‘The Romantic Idea of a University’, 19th International Congress of Historical Sciences, 6–13 August 2000, Oslo University, Norway: <www.oslo2000/uio.no> (25 July 2004).

[27]Readings, above n25 at 22ff.

[28]Id at 3.

[29]Id at 75.

[30]Karl Jaspers, ‘Philosophical Autobiography’ in Paul Arthur Schilpp (ed), The Philosophy of Karl Jaspers (2nd augmented ed, 1981) at 37.

[31]The Australian system contrasts with the Research Assessment Exercise (RAE) that prevails in the UK <http://www.hero.ac.uk/rae/pubs> (31 July 2004) and the Academic Audit Unit recently developed in New Zealand <http://www.aau.ac.nz> (31 July 2004).

[32]Report of the Faculty Committee for a Year of Reflection, January 1998 at 1: <http://www.realuofc.org/commit/maj1.html> (27 October 2004). See also Donald Levine, ‘The Idea of the University, Take One: On the Genius of this Place’, The Idea of the University Colloquium, University of Chicago, 2000: <http://iotu.uchicago.edu/levine.html> (25 July 2004).

[33]His inspirational role in the development of modern American education has been described as a ‘patent academic myth’: see Roy Steven Turner, ‘Humboldt in North America? Reflections on the Research University and its Historians’ in Rainer Christoph Schwinges, Humboldt International: Der Export des Deutschen Universitatsmodells im 19 und 20 Jahrhundert (2001) at 289–312.

[34]Marianne Cowan (trans & ed), An Anthology of Writings of Wilhelm von Humboldt, Vol X (1963) at 134.

[35]Wilhelm von Humboldt, The Limits of State Action (ed & trans J W Burrow) (1969) at 54.

[36]Id at 51.

[37]Jürgen Habermas, ‘The Idea of the University: Learning Processes’ in Shierry Weber Nicholsen (ed & trans), The New Conservatism: Cultural Criticism and the Historians’ Debate (1989) at 101.

[38]Charles E McClelland, State, Society, and University in Germany 1700–1914 (1980) at 132. The higher or pre-professional upper faculties consisted of law, theology and medicine. Fichte, another influential German idealist, sought to revolutionalise German universities by placing the ‘lower’ arts faculty in the dominant position.

[39]Newman, above n14. See also Ian Ker, The Achievements of John Henry Newman (1990); Ian Ker, ‘Newman’s Idea of a University: A Guide for the Contemporary University?’ in David Smith & Anne Karin Langslow (eds), The Idea of a University, Higher Education Policy Series 51(1999).

[40]For example, Smith & Langslow, ibid; Tony Coady, ‘Universities and the Ideals of Inquiry’ in Tony Coady (ed), Why Universities Matter (2000).

[41]Newman, above n14 at ix.

[42]Id at 105.

[43]Ibid.

[44]Newman, id at 154.

[45]Ker, ‘Newman’s Idea’, above n39 at 12–16.

[46]The quote comes from the 1961 edition of Jasper’s book. See Habermas, above n37 at 100.

[47]Karl Jaspers, Die Idee der Universität (1923). It was reprinted in 1945 and revised in 1961.

[48]Karl Jaspers, Die Idee der Universität (1946). (English translation: Karl Jaspers, The Idea of the University (ed Karl Deutsch, trans H A T Reiche & H F Vanderschmidt) (1960).

[49]Jaspers, ‘Philosophical Autobiography’, above n30 at 45.

[50]Jaspers, The Idea, above n48 at 19.

[51]Jaspers, id at 21.

[52]Jaspers, id at 45.

[53]Jaspers, id at 99.

[54]Jaspers, id at 107.

[55]Jaspers, id at 134.

[56]Jaspers, id at 135.

[57]He was reinstated at the end of the War.

[58]Jaspers, The Idea, above n48 at 137.

[59]Jaspers, id at 84.

[60]Jaspers, id at 91.

[61]Jaspers, id at 137.

[62]Stevens notes rather wryly that it is now the jurisprudes, teachers of Roman law and legal historians who are marginalised. See Robert Stevens, ‘Legal Education in Context’ in Birks, above n4 at 89.

[63]For example, Helene Wieruszowski, The Medieval University: Masters, Students, Learning (1966); Linda Martin, ‘From Apprenticeship to Law School: A Social History of Legal Education in Nineteenth Century New South Wales’ [1986] UNSWLawJl 17; (1986) 9 UNSWLJ 111; William Twining, ‘Pericles and the Plumber’ (1967) 83 LQR 396; Margaret Thornton, Portia Lost in the Groves of Academia Wondering What to do about Legal Education, Inaugural Lecture (Bundoora: La Trobe University Press, 1991).

[64]Johnstone & Vignaendra, above n7 at 91.

[65]Interviewees in England and Canada, as well as Australia, all related how students were now more likely to shun courses that included ‘feminism’, ‘sexuality’, or even ‘critical’ in the title.

[66]Johnstone & Vignaendra, above n7 at 112.

[67]This resistance is clearly illustrated by Hart, who sought to draw a line between law and history, law and politics, and law and social values of all kinds, including law and morality. See H L A Hart, The Concept of Law (1961) esp at 253n.

[68]Edward P Thompson, Whigs and Hunters: The Origin of the Black Act (1975) at 263.

[69]For example, Stuart Macintyre & Anna Clark, The History Wars (2003).

[70]Duncanson, ‘Legal Education’, above n16 at 61.

[71]Johnstone & Vignaendra, above n7 at 130; Ian Duncanson, ‘The Ends of Legal Studies’ (1997) 3 Web J Current Legal Issues <webjcli.ncl.ac.uk/1997/issue3/duncan3.html> (25 July 2004). Bradney is more optimistic about the impact of diversity on legal education in the UK. See Bradney, above n12 at 9–15.

[72]See Hon John Dawkins, Commonwealth Minister for Education, Employment and Training, Higher Education: A Policy Statement (Canberra: AGPS, 1988).

[73]The 29th, at Edith Cowan University, is to commence in 2005.

[74]Research productivity, teaching quality and performance on a range of indices are now regularly audited, which has become a phenomenon of our times. See Michael Power, The Audit Society: Rituals of Verification (1997).

[75]Although not eventually passed, the National Governance Protocols, which required compliance in order to qualify for funding increases, illustrates the point. See Hon Dr Brendan Nelson, Our Universities: Backing Australia’s Future (Canberra: Commonwealth of Australia, 2003) at 15–16.

[76]Johnstone & Vignaendra, above n7 at 54–56.

[77]Compare Judith Lancaster, The Modernisation of Legal Education: A Critique of the Martin, Bowen and Pearce Reports (Sydney: Centre of Legal Education, 1993) at 2.

[78]From 2005, the Government contribution for a full-time student has been set at $1,509. This represents the lowest disciplinary ranking on a 10–point scale. See Nelson, above n75 at 15. As a result, law students themselves will assume 84 per cent of the cost of their course, the highest of all disciplines. See Dorothy Illing, ‘Higher Fees Bring New World Order’ The Australian (28 July 2004) at 32.

[79]Jaspers, The Idea, above n48 at135.

[80]Walt Bachman, Law v Life: What Lawyers are Afraid to Say about the Legal Professional (1995) at 57. Compare Charles Derber, ‘Managing Professionals: Ideological Proletarianization and Mental Labour’ in Charles Derber (ed), Professionals as Workers: Mental Labour in Advanced Capitalism (1982) at 180. See also Margaret Thornton, ‘Technocentrism in the Law School: Why the Gender and Colour of Law Remain the Same’ (1998) 36 Osgoode Hall Law Journal 369.

[81]Lancaster, above n77 at 11.

[82]Jaspers experienced at first hand the replacement of disfavoured teaching staff and students by the Nazis. Hartshorne, in his study of German universities 1933–37, notes that about one-fifth of teaching staff were lost or replaced, with a reduction of 30 per cent of students. See Edward Yarnall Hartshorne Jr, The German Universities and National Socialism (1937) at 72.

[83]Simon Marginson, ‘They Make a Desolation and they Call it FA Hayek: Australian Universities on the Brink of the Nelson Reforms’ (2004) 260 Aust Book Rev 28 at 32. The media is now beginning to focus on the inequitable treatment of international students. See, for example, Samantha Maiden, ‘Foreigners treated as ‘“Cash Cows”’ Higher Education, The Australian (21 July 2004) at 31.

[84]Compare Arthurs, above n4 at 50.

[85]Interview conducted in 2003.

[86]Jaspers, The Idea, above n48 at 62.

[87]An example would be the statement contained in the Faculty Plan for the ANU:

‘In summary, I am suggesting that we make a deliberate shift away from the traditional model of the typical Australian law school of preparing our students to have brilliant, individual careers, to a more altruistic model of inspiring our students to leave the legal system better than they found it.’

Michael Coper, ‘The Ethos and Identity of the ANU Law School’, Draft Implementation Plan, Faculty of Law, ANU (Canberra, 2002, updated 2004) at 13.

[88]Readings, above n25 at 176.

[89]Jaspers, ‘Philosophical Autobiography’, above n30 at 52.