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THINKING “CULTURE” IN LEGAL EDUCATION
ANTHONY O’DONNELL*
INTRODUCTION
Australia is a polyethnic society formed by the
processes of colonisation and imrnigration.1 It has
become a commonplace to say that we live in a “multicultural
society”, yet contemporary Australia could more properly
be characterised
as “a society with a multicultural population, regulated and governed by a
monocultural power structure”.2
One aspect of
that power structure is the legal system, and the gap between a monocultural
legal system and a diverse population has
been the subject of commentary for
over thirty years.3 This commentary has highlighted
issues of access and equity, especially the linguistic barriers to access and
general issues of cross
cultural communication, with some regard to those areas
where the cultural underpinnings of law acquire most saliency: family law,
criminal law and, to a lesser extent, contract law.4 It
has been recognised that law schools and the traditional law curriculum must
bear part of the blame for the ongoing failure of
the legal system to respond to
issues of cultural diversity.5 One response has been to
advocate cross cultural awareness education which focusses on intercultural
communicative competence, ethnographic
thumbnail sketches or “case
studies” of migrant “communities”, and an examination of the
law’s tolerance
of diversity through, say, formal anti-discrimination or
equality provisions.6
Useful and necessary as
these approaches are, I want to suggest in this article ways to move beyond
them. That is, the full value
of cross cultural perspectives on the law may be
realised when they contribute to a broader pedagogy “in which relations of
power and racial identity become paramount as part of a language of critique and
possibility”.7
Let me suggest a few of the
propositions that I feel should inform such a project. First, it is necessary to
approach the academic
study of law as a serious endeavour in itself, rather than
seeing it merely a training ground for future lawyers. Such an approach
is
supported by the Pearce report on Australian law schools, where it was observed
that:
a good undergraduate law course should provide an intellectual base for life-long critical reflectiveness about legal institutions, the profession and one’s own work, in the actual and changing conditions of social life and legal practice ... [L]aw courses should expose students to an understanding of the processes and functions in society of law and legal institutions, to the variety of the modes of social control, to the moral and political outlooks embedded in law and conceptions of professional roles, to questions of justice, to the relevance of social, political and moral theories and forces to law, legal institutions and their change and development, and to the information and understanding to be drawn from the social sciences and social science research for the purpose of evaluating law.8
The inadequacy of the professional training model
of legal education becomes more marked as fewer graduates are actually employed
in private practice or government lawyering.9 The trend
for law students to enrol in joint-degree programs, it has been suggested,
springs from both a reappraisal of employment
prospects and the distinct lack of
intellectual appeal of professionally-based law
curricula.10
Despite this renewed attention to the
law school curriculum, I cannot help noticing that the field of legal
scholarship remains relatively
impervious to trends elsewhere in the academy. A
United States commentator has observed that “law schools are behind the
times
in confronting the issues posed by the debate over the canon. Our basic
core curriculum stands astonishingly unchanged and unexamined
compared to that
of the rest of the academy”.11 An Australian
academic has echoed these concerns in the local context: “[I]t seems clear
that law as an area of study has not
kept pace with the innovation and
theoretical heterogeneity witnessed of late within the humanities. Scholars in
law have remained
disturbingly content with regimes of truth, designed within
agencies of the state, which often naturalise or elide questions of oppression
and inequality”.12
Second, I suggest that
cross cultural perspectives must be integrated throughout the curriculum to
avoid a perceived marginalisation
of cross cultural issues as disassociated from
the remainder of students’ studies. Again, segregated courses can result
in
cross cultural issues being perceived as an area of specialisation, implying
that the content of cross cultural practice is for experts
and best left to
them, rather than cultural diversity being one dimension of social reality that
cuts across all fields of practice.13
In
particular, the challenge is to examine precisely those most
“opaque” areas of the curriculum, where we confront the
accumulated,
taken-for-granted and common sense assumptions the law uses to understand the
complex social world.14 As Paul Rabinow has observed:
We do not need ... a new epistemology of the other.... We need to anthropologize the West: show how exotic its constitution of reality has been; emphasize those domains most taken for granted as universal ... make them seem as historically peculiar as possible; show how their claims to truth are linked to social practices and have hence become effective forces in the social world.15
Finally, approaches to cross cultural issues must be interdisciplinary. That is, the knowledge and data that can inform cross cultural perspectives will come from the social sciences, historical studies, the narratives and resources of community activism. Also, the questions that will continually surface in teaching materials that take cross cultural issues seriously are being discussed and theorised outside law in the disciplines of sociology, history, feminist studies, political science, cultural studies, anthropology and literary studies. What is culture? How is difference constituted? How can we represent it? How does a “multicultural” Australia deal with difference? What counts as justice in a culturally diverse society?
TOWARDS A CRITICAL MULTICULTURALISM
Because “multiculturalism” provides the
inescapable context for much public discussion of cross cultural training and
law, it is necessary to critically examine the concept for the pitfalls and
dangers, as well as for the guidance and direction, it
may provide to teachers
wishing to develop cross cultural teaching materials.
At the outset it is
worth noting that the “multicultural” model of diversity tends to
emphasise the diversity of migrant
collectivities in Australia, rather than the
confrontation of indigenous people with invaders and settlers which is
emphasised by
a “colonisation” model.16
Partly this is the result of a clear administrative division between
“Aboriginal Affairs” and “Multicultural Affairs”,
and of
a scholarly division between “race relations” and “ethnic
studies”. Partly it is also respectful of
the wishes of Aborigines
themselves not to be seen as “another ethnic minority” but as the
original inhabitants of the
land which provides the territory of the Australian
nation-state.17 Yet it also represents a problem
inherent in official ideologies of multiculturalism itself: “it is
impossible to include Aborigines
in the image of a consensual unity-in-diversity
without erasing the memory of colonial dispossession, genocide and cultural loss
and its continued impact on Aboriginal life”.18
Nevertheless, adopted as official state policy, multiculturalism now provides
the “narrative space” for explorations
of difference in
Australia.19 That is, Australia has always been a
polyethnic nation, but for the last twenty years multiculturalism has offered a
particular,
legitimate account of this experience.20
Both the history of migration to Australia and of government policy
responses to it have been well-documented.21 Observes
Jackson, “As a policy, multiculturalism enjoys the distinction of being
vilified by both the left and the right.22 The policy
of multiculturalism arose in response to what were seen as the problems and
failures of assimilation. Assimilation was
a policy of benign indifference, of
“doing as little as possible in the hope that immigrants would eventually
become ‘Australian’”.23 The category
“Australian” was defined with reference to various national myths
and stereotypes that themselves glossed
over class and gender cleavages amongst
Anglo-Australians. Various moral or rights-based critiques of assimilation arose
on the grounds
that the policy required non-Anglo Australians to deny their
cultural heritage. More alarming for policymakers was the increasing
realisation
of structures of disadvantage resulting from government indifference to the
specific welfare needs of migrants. Studies
such as the Henderson inquiry into
Australians in poverty24 showed that immigrants
suffered socio-economic disadvantage, exacerbated by cultural, linguistic and
geographic barriers to participation,
and that such disadvantage was reproduced
through generations. Such a result was not surprising, given that
“assimilation implied
non-Anglo Australians had to compete for social
goods on the terms of the existing political and economic structures which
clearly
favoured the Anglo-Australians”.25 same
time, spokespeople from ethnic communities themselves challenged assimilationist
policies. The supersession of assimilation by
“multiculturalism” can
be seen then as an outcome of a policy bargaining process whereby political
parties used the new
policy rhetoric as a way of gaining the ethnic vote, while
in turn benefits flowed to a new “ethnic petty
bourgeoisie”.26
By the time the Fraser
government institutionalised multiculturalism with the Galbally Report in
1978,27 ethnic disadvantage was being explained largely
in terms of language problems and notions of cultural difference cum
cultural deficit.28
This leads to essentially
conservative understandings of ethnicity whereby both culture and ethnicity are
perceived as static. Yet
the social sciences have had little success in
developing an uncontentious definition of ethnicity.29
Rather, “social categories such as race, ethnicity and culture depend for
their significance in each society in their relation
to prevailing structures of
incorporation, and ... alignment of groups in
society”.30 Thus “ethnicity” as a
concept is relational and ethnic designations and their meanings will vary
between different societies
and historically within a given
society.31 For example, in the United States prior to
the Civil War, Southern Europeans, Jews and Irish were classed as
“non-white”
in the hierarchy of races.32
The instability of ethnic categories is particularly marked in migration
contexts where ethnic traditions come into contact with
other traditions in
settler societies, or, in the case of Australia, where there are high rates of
intermarriage amongst second generation
migrants. To argue for the socially
constructed nature of difference is not, however, to dissolve the reality of
difference or of
the oppressions of difference. What is argued, however, is that
instead of being preoccupied with static “ethnic traditions”
we
should be attuned to changing significations of ethnicity and race within the
political and historical reality of Australia, and
our concern should be as much
with cultural location as cultural background; that is, the relationship between
dominant and minority
cultures, recognising that the dominant culture has the
greatest power to ascribe value, determine the allocation of resources and
control decision-making.33
A view of culture and
ethnicity that sees them as static and unchanging will also tend to attribute a
homogeneity to cultures that
obscures important differences of class and gender
within recognised “ethnic communities”, or commonalities of interest
across communities:
While the Greek-Australian shop-owner, for example, may have some cultural characteristics in common with other Greek-Australian workers, the differences between them, in respect of economic relations, are also extremely important. Similarly, the differences between Turkish-Australian males and Turkish-Australian females may be more significant than their similarities. Also, it is possible that the similarities between Greek-Australian women and Chinese- Australian women may be more important in particular contexts than the differences that are attributable to their ethnicity. Thus, the emphasis on cultural differences may obscure the facts of commonality across ethnic divisions.34
In a further critique of many mainstream intercultural training programs Michael Morrissey asks quite bluntly: “Who defines what ‘culture’ is? Who defines what is the content of a particular culture? Whose prerogative is it to distinguish between behaviour which emanates from a person’s ‘culture’ and that which is a response to a specifically Australian situation?”35 Rattansi has pinpointed the challenge for educators:
[T]he focus on ethnicity as part of the discourse of cultural pluralism and diversity pays scant attention to the highly complex, contextually variable and economically and politically influenced drawing and redrawing of boundaries that takes place in encounters within the minority communities and in relation to white groups...This implies, in turn, that the foundations of the whole project of teaching about “other cultures” need to be rethought. The shape and character of ethnic cultural formations is too complex to be reduced to formulas around festivals, religions, world-views and lifestyles. These fail to grapple with the shifting and kaleidoscopic nature of ethnic differentiations and identities and their relation to internal divisions of class and gender.36
A pessimistic reading of multiculturalism, then, will see it as a strategy of containment. I return to my opening observation, that Australia remains a “multicultural” nation governed by a monocultural power structure, here reiterated by Stratton and Ang with an eye to how that power structure uses multiculturalism to maintain itself:
It is not coincidental that “Anglo-Celtic” Australians are not viewed as an ethnic community, while the government and senior echelons of the public service are still made up of a predominance of people, mostly male, from this dominant demographic group.... In short, official multiculturalism suppresses the continued hegemony of Anglo- Celtic Australian culture by making it invisible.37
Ghassan Hage goes further, observing that:
[I]n the Anglo-Celtic version of it, while multiculturalism requires a number of cultures, Anglo-Celtic culture is not merely one among those cultures, it is precisely the culture which provides the collection with this “peaceful coexistence”. That is, multiculturalism as a phenomenon is one of many cultures, but the essence of the whole phenomenon, the spirit that moves it and gives coherence, is primarily Anglo-Celtic. There is a common and widespread belief that left to themselves “ethnic” cultures cannot possibly co-exist. It is only the Anglo-Celtic effort to inject “peaceful co-existence” into them which allows them to do so.38
Ien Ang has alerted us to a similar danger in simplistic ideologies of tolerance, whereby “the dominant majority is structurally placed in a position of power inasmuch as it is granted the active power to tolerate”.39 The temptation is to use multiculturalism to celebrate the law’s ability — or potential ability given a few well-judged reforms — to ensure that Australia is a tolerant, egalitarian place to live, rather than allowing the reality of diversity to unsettle our ideas of legal regulation and to reveal hitherto unseen complexities.
MULTICULTURALISM AND THE LAW
I have already noted the enduring debate concerning ethnicity and the law.40 Lois Foster and David Stockley41 have itemised the principal themes of this debate:
In looking
over this list, I sense a danger that the dominant tone of these approaches
remains what the African American activist
WEB DuBois labelled the
“unasked question” that constitutes the barrier between dominant and
minority experience: “How
does it feel to be a
problem?”42 Much cross cultural material speaks
of the need to “sensitise” service providers to the “special
needs” of
immigrants. Observes Jamrozik, “In such
‘welfare’ perspectives, immigrant communities came to be seen as
‘disadvantaged’
or as ‘dependent’ populations, similar
to other ‘dependent’ populations, or ‘problem’
populations,
such as the unemployed, pensioners or ‘the
poor”’.43
The challenge, argues Paul
Gilroy, is how to represent a marginalised presence outside the alternating
categories of “problem”
and
“victim”.44 The easy partitioning of non-
English speaking background migrants and Aboriginal and Islander peoples into
the “problem”
category means the impact of cross cultural
perspectives on our way of understanding the world can always be minimised.
Foster and
Stockley suggest that “the fact of the matter is that lawyers,
for example, can conduct a successful business with little acknowledgement
of
the multicultural society so the inducement to change is not
strong”.45
THINKING “CULTURE” IN LEGAL EDUCATION
Calls for cross cultural education of professionals
have been an enduring theme of official reports from the 1978 Review of Post
Arrival
Programs and Services for Migrants onwards.46
Yet apart from specific recommendations concerning education in the use of
interpreters or community languages, the actual content
of “cultural
awareness” education “is usually described only in the vaguest of
terms”.47 The programs that have responded to
this call are usually discrete, stand-alone training programs designed for
specific target groups.48 In the context of legal
education, such training has been incorporated through practical training or
through the introduction of
discrete, optional, specialist courses to the
undergraduate curriculum, such as “Aborigines and the Law” or
“Law
and Cultural Diversity”. While all these are valuable and
necessary initiatives, those seeking models for integrating cross
cultural
content into the core undergraduate curriculum have relatively few on which to
draw.50
From the preceding discussion of
multiculturalism, it should be clear that there is a link between our
understanding of “multiculturalism”
and the type of educational
program we might develop. In particular, certain assumptions underpinning
“mainstream” multiculturalism
present particular hazards for cross
cultural legal education:
Multiculturalism has predominantly been seen as a way of preserving forms of cultural identity, such as religion and language, food and folklore, clothing and dance. The preservation of such plural forms, however, takes place insulated from a public arena constituted by one set of political, legal and economic institutions. Mary Kalantzis, Bill Cope and Chris Hughes argue:51
What is not cultural about the structures and norms of the law, the nature of citizenship and political participation, the nature of work and welfare? What is not cultural about the very division of the public domain and the private, the division of folk-culture as spare-time or entertainment activity from everyday life with its shared legal-political/economic arrangements? What is not cultural about the structures which facilitate upward, downward and lateral social mobility and the values of motivation to success or values which reject conventional success?
If we look to include
“things that escape the tourist’s eye for culture or the
multiculturalist’s eye for ethnicity”52 we
see the limited structural impact that multiculturalism has made. There remains
in Australia “a single culture of everyday
life”, a form of advanced
capitalism, in relation to which, “much of the diversity that there is, is
relatively superficial
and trivial”.53
If we
perceive culture as contained within the private sphere, we will tend to view
culture conflict as conflict over difference in
understandings. From this
perspective, the problem becomes merely the “exotic” nature of other
cultures, a problem that
can presumably be resolved through education, exposure
and celebration through “positive” images. However, “racism
is
not caused by ‘difference’ but by conflict over material and
ideological resources. Racism is not prejudice, but rather
it is a relationship
of dominance and subordination: that is a relationship of power. Cultural
awareness training, to the extent
that it operates within a framework of
totalised and antithetical cultural difference, is largely incapable of
describing, let alone
combating, such institutional
racism”.54 A more fruitful approach, then, is to
investigate how the dominant Australian socio-cultural and economic system
impacts on the life
chances, not the lifestyles,55 of
non-English speaking background, Aboriginal and Islander
Australians.56
An approach which suggests we can
“know” another person’s culture by learning the
“facts” about it can
result in — often pejorative —
stereotyping.57 One form this can take, for example, is
the “cultural defence”. While not a recognised defence, it is a
legal strategy
to mitigate culpability for criminal behaviour on the grounds
that a defendant, an immigrant, acted according to the dictates of
his or her
culture. Thus a non-Anglo man might seek to use the cultural defence to plea for
leniency in the case of his violence
toward a woman from the same culture.
Alternatively, a non- Anglo woman might seek to admit cultural factors to
explain her mental
state when attempting a parent-child
suicide.58 ‘In responding to the real fact of
cultural diversity, legal regulation must negotiate the balance between
resorting to generalizations
and concretely addressing an individual’s
location in her community, her location in the diaspora and her
history.59 The conundrum is an acute one and should be
situated in a tendency in the law to view culture as a deficit which must be
compensated
for: reformers confronted with the difference presented by a
non-Anglo-Saxon culture demand a lower standard of care, a lesser
degree of reasonableness, we talk about special disadvantage. Partly
we are again confronting the problem of seeing Anglo-Saxon ethnicity as the
invisible norm which need never be directly
addressed.60 Partly also the practices of the law
construct the problematic in this way: the adversarial system is built around
special pleading
for our clients.
But we are also touching on the crucial
issue of the representation of migrants, Aborigines and Islanders. The question
is not merely
one of “positive” versus “negative”
images, but of asking about the social and political mechanisms that
put such
images into place, how the images get produced within available discourses, and
what other images might be substitutable.61 Complex,
interesting answers to the question of how Australian law deals with difference
will be found not necessarily in instances
of outright exclusion and
intolerance, but in intercultural encounters marked by
“tolerance”.62 What happens when the law
decides to recognise the “special disadvantage” of non-English
speaking migrants? Or when it
decides to grant land rights to
“traditional” Aboriginal owners? Or to recognise “loss of
cultural fulfillment”
as a head of damages? This type of inquiry will
differ in many respects from that of the practising lawyer, but must be
undertaken
for there to be any influence on practice.63
SOME STRATEGIES FOR LEGAL EDUCATION
Due to the Heterosexual Presumption, most students assume (unconsciously) that the people involved in reported cases are heterosexual. When they encounter a lesbian in their readings, it is almost always in the context of a “rights” case. I try to disrupt this pattern ... For example, in my Property Law course I have created lesbian characters in fact situations about bailments, easements, and adverse possession. I want my students to know that lesbians are not exclusively involved in antidiscrimination cases and equality rights litigation. Most of us lead ordinary and often mundane lives ... We discover lost property in department stores. Our shoes are misplaced by the shoemaker to whom we entrusted their care. Our cars are vandalized in parking lots ... I also believe, however, that it is equally important to reveal the specificity of our lives. Some of our legal difficulties do arise specifically because we are lesbian.
If you wish to teach about ethnicity and race relations, for instance, a more comprehensive and deeper understanding is possible if you construct your Curriculum from the point of view of the subordinated ethnic groups than if you work from the point of view of the dominant one. “Racism” is a qualitatively better organizing concept than “natural inferiority” — though each concept has its roots in a particular experience, and embodies a social interest. In general the position of those who carry the burdens of social inequality is a better starting point for understanding the totality of the social world than is the position of those who enjoy its advantages.
...
There have long been bodies of information about the family, women’s employment, masculinity and femininity. They remained for decades a backwater in social sciences hegemonized by the interests of men. So far as such topics appeared in social theory at all, they did so via concepts like “sex role” and “modernization”.
The standpoint of the least advantaged in gender relations, now articulated in feminism, has transformed these fields. Modern feminism has produced a qualitatively better analysis of this large domain of social life.
Partly this was done by bringing to the fore experiences that had been little discussed before — such as sex discrimination, sexual harassment, or the experience of mothering. Perhaps more importantly, it was also done by developing new concepts and a new kind of social theory — embodied in terms like “sexual politics”, “patriarchy”, “sexual division of labour” and “gender relations”. These concepts allow a major reconfiguration of the existing domain of knowledge, as well as the addition of experiences not previously included.70
The integration of cross cultural
materials into the curriculum is not without problems which teachers will have
to negotiate within
the context of their own institutions. Few academics are
operating in an ideal world where entire syllabuses can be rethought from
the
ground up. Instead, much of the work will be pragmatically oriented toward
developing materials that can supplement existing
syllabuses, within the
constraints of meeting faculty deadlines, recognising a diversity of teaching
styles, operating within a context
of decreasing funding, and satisfying
professional admission requirements,73 while not adding
impossibly large amounts of reading to the often already unwieldy materials
confronted by teachers and students alike.
The impetus for attempts to
integrate cross cultural perspectives into the law curriculum can come not only
from the realisation that
those students who go into legal practice will find
themselves working with a diverse clientele, but also from the fact that
teachers
are encountering a much more diverse student body in their classrooms.
Thinking of education as not just a product to be delivered
or exported but as a
social process — perhaps a way of thinking that is becoming increasingly
harder to sustain in Australian
universities currently — it is not
possible to separate the question of the distribution of education from the
question of
content. If law schools set themselves the democratic task of
increasing access to education, then they have to ask themselves what
kind of education is being provided.74 If
access to education is increased for formerly excluded groups, actual retention
rates of such groups will depend upon their relationship
to the
curriculum.75 Of course, this relation between content
and access will work both ways. Those teachers who have been educated in the
monocultural
tradition of Australian law schools and who have practised in
monocultural settings will find it difficult to thoroughly and consistently
integrate cross cultural perspectives into their daily teaching. The challenge
presented by diverse, interdisciplinary, critical
teaching materials is one
antidote to this difficulty. But the proper integration of cross cultural
perspectives will only proceed
hand-in-hand with the collapse of the
monocultural law school itself and the advent of a more diverse teaching faculty
and a more
diverse student body. This goes beyond the issue of curriculum
considered here, but is vital to the wider success of the project.
* Research Fellow, Faculty of Law, University of Melbourne. This paper grew
out of a wider project undertaken by the University of
Melbourne Law School: see
A O’Donnell & R Johnstone, Developing a Cross Cultural Law
Curriculum (Sydney: Cavendish Publishing, 1997). My thanks to Rosemary
Hunter, Richard Johnstone, Lisa Sarmas and Daniel Stepniak for their help
in
developing many of the ideas in this paper.
©1997. (1996) 7 Legal
Educ Rev 135.
1 S Castles et al, Mistaken Identity: Multiculturalism and the Demise of Nationalism in Australia (Sydney: Pluto Press, 1988) 16.
2 A Jamrozik, C Boland & R Urquhart, Social Change and Cultural Transformation in Australia (Oakleigh, Victoria: Cambridge University Press, 1995) xi.
3 D Mendes & Costa, Migrants and the laws they left behind them, in A Stoller ed, New Faces: Immigration and Family Life in Australia (Melbourne: Cheshire, 1966) 131; A Jakubowicz & B Buckley, Migrants and the Legal System (Canberra: AGPS, 1975); Commonwealth of Australia, Review of Post-Arrival Programs and Services for Migrants — Migrant Services and Programs (Canberra: AGPS, 1978); D Eades, Aboriginal English and the Law (Brisbane: Queensland Law Society, 1982); Committee for Stage One of the Review of Migrant and Multicultural Programs and Services, Don’t Settle for Less (Canberra: AGPS, 1986); Australian Law Reform Commission, The Recognition of Aboriginal Customary Law, Report No 31 (Canberra: AGPS, 1986); M D’Argaville, Cross-Cultural Communication Issues and Solutions in the Delivery of Legal Services: An Interim Report to the Victoria Law Foundation (Clayton: Monash University, 1991); Royal Commission into Aboriginal Deaths in Custody, National Report (Canberra: AGPS, 1991); Human Rights and Equal Opportunity Commission, Report of the National Inquiry into Racist Violence in Australia (Canberra: AGPS, 1991); Australian Law Reform Commission, Multiculturalism and the Law, Report No 57 (Canberra: AGPS, 1992); Commonwealth of Australia, Access to Justice Advisory Committee, Access to Justice: An Action Plan (Canberra: AGPS, 1994); Australian Law Reform Commission, Equality Before the Law, Report No 69 (Canberra: AGPS, 1994); Commonwealth of Australia, Senate Standing Committee on Legal and Constitutional Affairs, Gender Bias and the Judiciary (Canberra: AGPS, 1994); K Laster, & V Taylor, Interpretation and the Legal System (Sydney: Federation Press, 1994); Human Rights and Equal Opportunity Commission, State of the Nation 1995: A Report on People of Non-English Speaking Backgrounds (Canberra: AGPS, 1995); J Stubbs et al, Cross Cultural Awareness for the Judiciary: Final Report to the Australian Institute of Judicial Administration (Sydney: Faculty of Education, University of Sydney, 1996). See generally, Bureau of Immigration, Multicultural and Population Research, Migrants and the Law: An Annotated Bibliography (Canberra: AGPS, 1995).
4 Australian Law Reform Commission (1992), supra note 3.
5 Id at para 2.17.
6 Id at ch 2. See also Cultural Diversity Training Program, Faculty of Education, University of Sydney, Cross Cultural Awareness for the Judiciary: Interim Report to the Australian Institute of Judicial Administration (Sydney: Faculty of Education, University of Sydney, 1996) 61.
7 H Giroux, Insurgent Multiculturalism and the Promise of Pedagogy, in D Goldberg ed, Multiculturalism: A Critical Reader (New York: Blackwell, 1994) 325, 326.
8 D Pearce, E Campbell, & D Harding, Australian Law Schools: A Discipline Assessment for the Commonwealth Tertiary Education Commission (Canberra: AGPS, 1987) vol 1, para 2.108. For a consideration of the ambivalences and contradictions in the Pearce committee’s overall approach, see J Lancaster, The Modernisation of Legal Education: A Critique of the Martin, Bowen and Pearce Reports (Sydney: Centre for Legal Education, 1993) 52–69.
9 D Weisbrot, Recent Statistical Trends in
Australian Legal Education (1990–
[1991] LegEdRev 11 
; 1991) 2 Legal Educ Rev 219,
226–227. Christine Parker has concluded that fewer than sixty per cent of
law graduates are practitioners a few years after
graduation, and the percentage
decreases as time goes on: An Oversupply of Law Graduates? Putting the
Statistics in Context (1993) 4 Legal Educ Rev 255, 266.
10 A Ziegert, Social Structure, Educational Attainment and Admission to Law School (1992) 3 Legal Educ Rev 155, 203–204.
11 F Ansley, Race and the Core Curriculum in Legal Education (1991) 79 Cal L Rev, 1511, 1514–15. For a survey of the issues at stake in the “debate over the canon”, see the references at page 1512, n 3, of Ansley’s article. In contrast to Australia, the term “multicu1turalism” is used in the United States for the purpose of this predominantly scholarly, campus- based debate: see, eg, D Goldberg ed, Multiculturalism: A Critical Reader (New York: Blackwell, 1994).
12 I Duncanson, Broadening the Discipline of Law [1994] MelbULawRw 26; (1994) 19 Melb UL Rev, 1075.
13 D Cox, Preparing Practitioners for Welfare Service Delivery in a Multicultural Society, in C Hedrick, & R Holton eds, Cross-Cultural Communication and Professional Education (Bedford Park: Centre for Multicultural Studies, Flinders University of South Australia, 1990) 139,145.
14 S Castles, The Racisms of Globalisation, in E Vasta, & S Castles eds, The Teeth Are Smiling: The Persistence of Racism in Multicultural Australia (St Leonards, NSW: Allen & Unwin, 1996) 17,30.
15 P Rabinow, Representations Are Social Facts: Modernity and Post- Modernity in Anthropology, in J Clifford, & G Marcus ed, Writing Culture: The Poetics and Politics of Ethnography (Berkeley: University of California Press, 1986) 234,241.
16 J Pettman, Race, Ethnicity and Gender in Australia, in D Stasiulis, & N Yuval-Davis eds, Unsettling Settler Societies: Articulations of Gender, Ethnicity and Class (London: Sage, 1995) 65.
17 J Stratton, & I Ang, Multicultural Imagined Communities: Cultural Difference and National Identity in Australia and the USA (1994) 8(2) Continuum 124, 154.
18 ld at 155.
19 Id at 152.
20 Id at 151–52.
21 F Rizvi, Migration Ethnicity and Multiculturalism Volume C: Multiculturalism: Making Policy for a Polyethnic Society (Geelong: Deakin University, 1989); Castles et al, supra note 1; Jamrozik et al, supra note 2.
22 A Jackson, Ethnic Organisations: A Policy and Planning Perspective (1991) 12 J Intercultural Stud 39, 44.
23 Rizvi, supra note 21, at 7.
24 Australian Government Commission of Inquiry into Poverty, First Main Report (Canberra: AGPS, 1975); Jakubowicz & Buckley, supra note 3.
25 Rizvi, supra note 21, at 9.
26 Jackson, supra note 22, at 45.
27 Commonwealth of Australia. Review of Post-Arrival Programs and Services for Migrants, Migrant Services and Programs (Canberra: AGPS, 1978).
28 Pettman, supra note 16, at 82.
29 A Rattansi, Just Framing: Ethnicity and Racisms in a “Postmodern” Framework, in L Nicholson, & S Seidman eds, Social Postmodernism (Cambridge: Cambridge University Press, 1995) 250, 252.
30 L Jayasuriya, Culture and Communication: Some Critical Reflections, in Hedrick & Holton eds, supra note 13, at 96, 104.
31 M Omi, & H Winant, By the Rivers of Babylon: Race in the United States (1983) 71 Socialist Rev 31,47.
32 Id at 51. M Omi, & H Winant, Racial Formation in the United States: From the 1960s to the 1980s, 2nd ed (New York: Routledge, 1994); I Haney- Lopez, White By Law: The Legal Construction of Race (New York: New York University Press, 1996); N Ignatiev, How the Irish Became White (New York: Routledge, 1995). Note Burton J’s comments regarding the status of Aboriginal law in the colony of New South Wales in the case of R v Murrell (1836) Legge 2; such law, he said, was “consistent with a state of the greatest darkness and irrational superstition” and so deserved as little respect as the “Laws of the Wild Irish: H Reynolds, Aboriginal Sovereignty: Reflections of Race, State and Nation (St Leonards, NSW: Allen & Unwin, 1996).
33 M Gonzalez, K Gilmore, & D Orlando, Desperately Seeking Justice: A Resource and Training Manual on Violence Against Women in a Culturally Diverse Community (Melbourne: CASA House, 1992) 74.
34 Rizvi, supra note 21, at 24.
35 M Morrissey, Some Considerations on Provision of Welfare Services to Migrants, in A Jamrozik ed, Provision of Welfare Services to Immigrants: SWRC Reports and Proceedings No. 60 (Sydney: University of New South Wales, 1986).
36 A Rattansi, Changing the Subject?: Racism, Culture and Education, in J Donald, & A Rattansi eds, “Race”, Culture and Difference (London: Sage, 1992) 11,39.
37 Stratton & Ang, supra note 17, at 153–54.
38 G Hage, Republicanism, Multiculturalism, Zoology, in G Hage, & L Johnson eds, Republicanism/Citizenship/Community (Nepean: University of Western Sydney, 1993) 113,134.
39 I Ang, The Curse of the Smile: Ambivalence and the “Asian” Woman in Australian Multiculturalism (1996) 52 Feminist Rev 36, 39–40.
40 See references, supra note 3.
41 L Foster & D Stockley, Australian Multiculturalism: A Documentary History and Critique (Clevedon: Multilingual Matters, 1988).
42 P Gilroy, There Ain’t No Black in the Union Jack: The Cultural Politics of Race and Nation (London: Hutchinson, 1987) 11.
43 Jamrozik et al, supra note 2, at 219.
44 Gilroy, supra note 42, at 12.
45 Foster & Stockley, supra note 41, at 139. See also D’Argaville, supra note 3, who reports solicitors’ perception that for those practitioners who might find themselves in intercultural encounters, “on-the-job” experience is sufficient to develop the necessary cross cultural communication skills and no specific training was required in this area.
46 See references at supra note 3.
47 Cultural Diversity Training Program, Faculty of Education, University of Sydney, supra note 6, 61.
48 See generally B Cope et al, Local Diversity, Global Connections (2 vols, Canberra: AGPS, 1994).
49 A Lamb, The Role of the Lawyer in a Multicultural Society (1987) 5 J Prof Legal Educ 31.
50 A notable exception was a first year subject developed at Monash University in the 1980s: see G Bird, Re-Defining a Law Curriculum from a Multicultural Perspective: The Monash/Vlictorian Law Foundation Joint Project (Clayton, Victoria: Centre for Migrant and Intercultural Studies, Monash University 1985); the course materials are available as a textbook, now in its second edition: G Bird, The Process of Law in Australia: lntercultural Perspectives, 2nd ed (Sydney: Butterworths, 1993).
51 M Kalantzis, B Cope, & C Hughes, Pluralism and Social Reform: A Review of Multiculturalism in Australian Education (1985) 11 Thesis Eleven 195, 207.
52 ld at 212.
53 Id at 207.
54 D Hollinsworth, Cultural Awareness Training, Racism Awareness Training or Antiracism?: Strategies for Combating Institutional Racism (1992) 13 J Intercultural Stud 37, 44.
55 The distinction is Laksiri Jayasuriya’s: see Multiculturalism: Fact, Policy and Rhetoric, in M Poole et a1 eds, Australia in Transition: Culture and Life Possibilities (Sydney: Harcourt Brace Jovanovich, 1985) 33.
56 See, eg, Jamrozik et al, supra note 2, esp ch 6; J Collins, The Changing Political Economy of Australian Racism, in Vasta & Castles eds, supra note 14; Council for Aboriginal Reconciliation, Addressing Disadvantage: A Greater Awareness of the Causes of Indigenous Australians’ Disadvantage (Canberra: AGPS, 1994).
57 Morrissey, supra note 35.
58 Both scenarios are discussed in L Volpp, (Mis)Identifying Culture: Asian Women and the “Cultural Defense” (1994) 17 Ham Women’s L] 57.
59 Id at 100. See also D Chiu, The Cultural Defense: Beyond Exclusion, Assimilation and Guilty Liberalism (1994) 82 Cal L Rev 1053.
60 S Gunew, PostModern Tensions: Reading for Multicultural Difference, in S Gunew & K O’Langley eds, Striking Chords: Multicultural Literary Interpretations (North Sydney: Allen & Unwin, 1992) 28.
61 S Muecke, Textual Spaces: Aboriginal Cultural Studies (Sydney: University of New South Wales Press, 1992) 15.
62 Ang, supra note 39, at 41.
63 Duncanson, supra note 12, at 1079–80.
64 It is not just doctrinal blinkers that can hamper this rethinking or this rediscovery of the social. Appellate reports tend to radically undertell case stories. For example, see Lisa Sarmas on the disjunction between the story told in the majority judgments and the story revealed by an examination of trial transcripts in the recent High Court case on unconscionability: Storytelling and the Law: A Case Study of Louth v Diprose (1994) Melbourne UL Rev 701.
65 B Davis, Tools for Teaching (San Francisco: Jossey-Bass, 1993) 41.
66 C Petersen, Living Dangerously: Speaking Lesbian, Teaching Law (1994) 7 Canadian Women & L 318, 325.
67 K Crenshaw, Toward a Race-Conscious Pedagogy in Legal Education (1989) 11 Nat’l Black LJ 1.
68 L Salomans, Cross Cultural Education in Nursing Curricula, in C Hedrick ed, National Conference: Professional Cross-Cultural Staff Development Inside and Outside Universities (Bedford Park: National Centre for Cross Cultural Curriculum and Staff Development, Flinders University of South Australia, 1991) 73, 79.
69 J Pettman, Living in the Margins: Racism, Sexism and Feminism in Australia (St Leonards, NSW: Allen & Unwin, 1992) 141.
70 RW Connell, Schools and Social Justice (Toronto: Our Schools/Ourselves Education Foundation, 1993) 39–41; note, however, that modern feminism has not produced a single analysis of gender relations but a range of analyses.
71 Salomans, supra note 68, at 79. Ien Ang, citing psychoanalytic theorist Jane Flax, argues that ambivalence is not necessarily a symptom of weakness or confusion but “a strength to resist collapsing complex and contradictory material into an orderly whole”: supra note 39, at 44.
72 T Eagleton, Heathcliff and the Great Hunger: Studies in Irish Culture (London: Verso, 1995) xi.
73 “The argument that an LLB degree should or might lose professional recognition if it becomes too deviant or short on ‘hard law’ is advanced at times by legal academics themselves”: M Chesterman, & D Weisbrot, Legal scholarship in Australia (1987) 50 Mod L Rev 709,719. The authors cite the Pearce Report, supra note 8, Vol I, para 5.11, as recommending consultation with the “admitting authorities in New South Wales on the issue whether the Macquarie [University Law] course meets admission requirements”.
74 Connell, supra note 70, at 15–19.
75 See the discussions in D Lavery, The Participation of Indigenous Australians in Legal Education [1993] LegEdRev 8; (1995) 4 Legal Educ Rev 177, 181–182 (on the gap between access and success for indigenous law students); the Pearce Report, supra note 8, Vol 2, para 12.18 (on the need for “special assistance” above and beyond access schemes); C Penfold, “Indigenous Students’ Perception of Factors Contributing to Successful Law Studies”, this issue.
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