Duncanson

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The Ends of Legal Studies⁽¹⁾

Ian Duncanson

Copyright © 1997 Ian Duncanson.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

Summary

The paper reviews career and prospects of an interdisciplinary study of law, using the Australian experience. Some odd gaps and politically telling elisions in legal reasoning are revealed by the process of rendering the law "uncanny". One strategy for coping with legal-doctrinal reductionism and the subsumption of the law discipline into the cliches of corporate culture may be to approach authority and the canons of what constitute "real" knowledge in the discipline in the way that cultural studies has done. One doesn't deny the importance of law as it registers in lawyers' culture, but like an anthropologist, one situates that culture, contrasting its internal logics and self-explanations with explanations of the broader contexts which help make the internal logics plausible. In that way, a competent understanding of law as lawyers understand it can be combined with a more general humanities education. The ambiguity of the title reflects the author's uncertainty about the prospects for achieving this objective in Australia, given the conservatising pressures on law schools and the institutional disinterest in developing legal studies as a discipline.

1 Introduction.

In a curious irony, just as an English report recommends that "the (law) degree should stand as an independent liberal education in the discipline of law, not tied to any specific vocation" (ACLEC 1996, p 57 and chs 2, 3 and 4), commitment to the nonvocational study of law in Australia seems to have waned. Thus, for example, La Trobe University, once by far the largest institution dedicated to teaching and research in law beyond the scrutiny and outside the priorities of the legal professions, is now principally focused on its LLB program. The disciplinary spread of staff in the former legal studies department has narrowed and the current School of Law and Legal Studies is no longer in the Faculty of Social Sciences, but in Law and Management. Undergraduate Legal Studies (as opposed to Law) has become an option available to students whose enrollment is in another faculty (Humanities). Law as a vocational study in Australia has enrolled students at a rapidly increasing rate: more than a dozen new law schools have opened in the last decade; and enrollments in already existing schools have risen startlingly - in the period 1988-1992, at Monash University, for example, undergraduate numbers rose from 748 to 2084, at the University of Tasmania law school from 166 to 670 (McInnes and Marginson 1994).

A paradoxical feature of the Australian situation is that by the end of the century fewer than half of all law graduates - the proportion varies between states - will find space in the practising professions. Despite this - and there are notable exceptions - the law programs, including most of the new ones, remain conservative, their curriculum dominated by the compulsory, professionally policed subjects (Thornton 1996, ch 3; Centre for Legal Education 1994, p 59). Why universities have engaged in such expansion in the law discipline is presumably not unrelated to the Liberal Party's policy of permitting up to 25% of a university's undergraduates to be charged full fees: law's expansion initially accelerated in the years prior to the 1993 election, (in the years 1984, 1985 and 1988, enrollments fell; in 1990-1992 they grew 20%, 15% and 10% respectively: McInnes and Marginson 1994, p 13) which the Liberals were widely expected to win. Law is, in any event, cheap, (Centre for Legal Education 1994) so that even federally funded students have been attractive.

Why students want to enroll in law (when it is widely held to be boring and intellectually unchallenging: Ziegert 1992 (2)) presumably relates to the contradictory messages which permeate the culture of higher education in Australia: on the one hand, there is the message delivered by governments, business lobby groups and vice chancellors that only "relevant", "practical" and "vocational" university courses are valuable; on the other hand, the notions of a "training for life" and of a lifelong career, are widely thought to be obsolete. In this muddled context, law seems to have remained practical in reputation - or at any rate, safe - whilst not guaranteeing a job. Why law remains popular with employers who are not lawyers has surely some connection with the class profile of law students, which has actually become more exclusive with the even-ing of the gender balance (Ziegert 1992; Weisbrot 1991).

Legal studies as a critical theoretical enterprise whose idea I shall develop in the course of this paper, will continue to be practised in Australia, in various niches in English, Cultural and Women's Studies, History and elsewhere. What Legal Studies as an institution offered at La Trobe was the possibility of routine interdisciplinarity in teaching and research. The change in direction may be the broader conservative trend in Australia in its academic register.

2. Legal Studies as a discipline in Australia

It was originally important in Australia to stress the disciplinary status of legal studies both in order to distinguish the enterprise from one which required the imprimatur of the legal professions and in order to provide a source of authority for understandings of legality far removed - even perhaps disapproved - from the perspectives of solicitors, barristers and judges. It was necessary to stress that there were boundaries, something implied by the assertion of disciplinarity, whilst intending them to be sufficiently flexible and permeable to allow the area's major claim to innovation, its interdisciplinarity - even before arriving at any tentative agreement about where the boundaries might be. The aspiration is best summed up by Greenblatt and Gunn in their discussion of interdiciplinarity:

It is tempting to believe that every time borders are crossed at the level of disciplines one automatically enters the domain of interdisciplinarity, but this assumption confuses the desire to see from different sides of the same border with the desire to reconceive the relation between borders. The disciplinary gives way to the interdisciplinary only when changes in what can be seen with their assistance and only when reconceptions of the question also change what can be represented as an answer (Greenblatt and Gunn 1992, p 4-5).

The purpose of legal studies, for some of its proponents, then, was not to look at lawyers' law but from another perspective - that of the sociologist, philosopher or historian, for example - but to explore social-regulative and subject-constituting terrains at large and to theorise the place of lawyers' beliefs and cultures within them (Cornell 1995). I think that this makes it a slightly different enterprise from the progressive law school educator's enterprise of representing law in context - the exploration of how the always already law is affected by its context. From a legal studies point of view we might have to await the specification and examination of contexts before deciding what can be meant by law (Hart 1961).(3) In the life of the author of this paper, for example, the most significant ordering regime might be the regime which positions "him" as a man. Some of the agents who police that subjectivity (see Edley and Wetherell 1993; Middleton 1992; Davis and Fisher 1993), punishing me if I act in ways considered unmanly in the culture I am taken to belong to, may - although they may not - also wear labels identifying them as agents of the law.

But what precisely the legal identification means (to them, to me) may require looking at the processes of gendering in the first instance and only subsequently at the meanings it may be taken to have conferred on legality. Reversing this process can produce some odd outcomes. Thus, for example, in Australia the conviction has taken hold that the legal order has, through malice or inadvertence, been allowed to be contaminated by questions of gender, as though somehow this could be avoided. The undoubted presence among older members of the legal professions of conscious or unconscious misogyny (Naffine 1992; Thornton 1994) has been translated into "gender bias" and large sums and time and energy have been expended estimating its extent and seeking a cure for it, among legal officials, the judiciary and in the law curriculum (Senate Standing Committee 1994). The cured subject of this translated narrative would presumably be an ungendered subject. The price of gender neutrality, an impossible subject position, is perhaps like the price one pays for Rawlsian justice, which is to be ignorant of who or what one is - conversely one discovers oneself only to lose the possibility of discovering justice - but it scarcely reflects the goals of most feminisms.

For some subjects it may be necessary or convenient to use legal forms to accomplish social tasks and to understand and justify the outcomes in terms of their being "law-governed" - why, the Brechtian cynic might ask, rob a bank when one can found one? In the context of lending, borrowing, setting up companies or transferring title, it may make perfect sense to assume the existence of a discrete legal logic, orchestrating and choreographing social affairs. Then, one assumes such things as validity, legitimacy and the social and ethical bindingness of legal obligations. Just as it is a kind of blasphemy for a believer to need reasons for believing in or obeying God (one does not ask whether God deserves obedience or has a mandate from a still higher God, for instance), it seems irrational to deny the authority of the law. The rules rule because they are rules, so it seems, and any other approach is taken to represent the dangers of subjectivity, anarchy, chaos, etc.

Conventionalists like David Hume explain still larger mysteries by reference to the assumptions people make. Over time, a conventionalist may say, gangsters and organised theft become governments and property. Custom generates legitimacy. We assume the legitimacy in government just as we assume that the laws of gravity will not reverse themselves - because they governed yesterday and the day before, and because the failure of the trams to conform with their timetable seems more immediately of concern than the failure of the universe to conform to the predictions made by physics. This is simply what humans are like (Hume 1978). We come close to Wittgenstein's observation that if we doubted, for instance, that the world existed before our awareness of it, or that other minds existed, we should have to doubt many other things that we do not wish to doubt (Wittgenstein 1969 para 234). But if we assume for convenience or for some other reason, when indubitable truth is unavailable, we should retain the capacity to un-assume and not be diverted by road closed signs or no entry signs constituted by law (Duncanson 1978; 1979; 1982; 1989; Fitzpatrick 1991; Norrie 1993). Legal studies justifies itself as a disciplinary practice when one can wait before one rushes off to catch the law; when one can await the outcome of the interpretation of other texts - the regimes of gender, north and south, ethnicity, class etc.

It is important not to imagine, however, that if we pounce too quickly on our law, as we might accuse lawyers of doing, we shall have caught something too dry and abstract, something without context. The response to the "progressives" in the law discipline who insist that law should always be taught "in context" is that it never isn't. Freedom of contract and the responsible agent, for example, assume a very specific kind of social world, and indicate what will constitute competent performance in it. The dissimilarity of emphasis between legal studies and the law discipline as traditionally practised may be the importance attached in legal studies to the task of interpreting/constructing contexts, and the degree of legal studies' reflexivity; its awareness that the choice of context is, indeed, a choice. Sometimes when one places a text in a certain light, inscriptions and meanings that it did not previously have, become apparent. Thus lawyers' stories about the equality of the legal subject appear quite different and problematically paradoxical if we refuse to place them in the context in which they allusively put them themselves.

The stories do not then seem, as lawyers would have us believe them to be, stories about abstractions, but, if we think about the context of high modern liberalism in a certain way, describe far from abstract practices. Liberalism tells us that the purpose of law and the state is primarily to enable us to go about our private business unimpeded so long as we do not diminish the capacity of others to do the same. In the private world of our natural being, we are profoundly unequal. The gift of equality before the law is no more and no less than this possibility of accomplishing inequality in material terms - this is precisely what proves that we are equal. If we were to remain equal in our private realm, this would require to be accomplished, or provide evidence to liberal critics like Neil MacCormick (MacCormick 1982, ch 1) and Isaiah Berlin (Berlin 1969, 125),(4) of a wretched inequality in the realms of citizenship and legal subjectivity. One proof that the human telos or essence is inviolate is exploitation, the violation of our claims to material equality. We would degrade our essential selves, Berlin says, although he does not say he says it, if relative degradation of some material selves were to be forbidden (Berlin 1969, 126).

Perhaps the place of the object "law" in legal studies can be summarised by reference to Slavoj Zizek's joke about "Lenin in Warsaw". In the joke a tourist is being shown around an art gallery in the old USSR by a guide. She stops before a portrait of a mature woman in bed with a younger man whose discarded uniform suggests that the location is Russia. The caption under the painting is "Lenin in Warsaw". "But where is Lenin?" the tourist wants to know. "Lenin," the guide says, "is in Warsaw." The meaning of the study in paint would not have been possible without Lenin the philosopher, wise architect of revolution and heroic leader of his people. We need this Lenin in order to discover this meaning. He is therefore there because he is somewhere which is not nowhere. But at the same time if Lenin were there, the work would have a different meaning altogether. Between the present and the absent Lenin, a new, uncanny Lenin is glimpsed. For legal studies, I am suggesting, it may be constructive to discover the law when it is unheimlich, not at home, in its (in the law discipline's sense) "proper" place.

In the next two sections I will consider whether, conversely, law as a discipline could provide a home for an otherwise homeless legal studies scholarship. The principal obstacles which seem to me to be necessary to overcome in Australia are, first, the style of law's representation of itself and, second, the epistemological limitations implied by political place of "the law" in relation to both the professions of practising lawyers and to the broader climate of hostility to critical scholarship in an increasingly conservative era. Corporate business (which means its senior executives) does not see the point in paying taxes to educate people for purposes of no immediate use to itself and has spent vast sums since the 1970s promoting its politics (Piven 1995; Carey 1995). The development of corporate styles of management and hierarchy in both law firms and universities, as well as the increasing dependence of higher education on funding from corporate sources, puts the chief executives of all three into closer social and political proximity to each other in the Australian metropolises than to their subordinates - academics in the case of universities. Where a law firm sponsors a chair in law, one might expect an unusual sensitivity to the requirements of the practising profession among the appointing committee.

3. The law discipline and mistaken identity.

We can understand the advantage of catching "the law" unawares, for the purpose of theorising the practices of social ordering if we notice the peculiar nature of the seamlessness presented to us in the conventional scholarship of law narratives. An experience in my local fishmarket prior to a jurisprudence class some years ago illustrates the point. A sign advertised "fresh prawns". Noticing an abundance of ice, I asked if the prawns were really fresh. "No," the stallholder said, "frozen". I pointed to the sign; he shrugged and said, "is mistake", but did not remove it. Far from invalidating the sign, in other words, the frozen prawns rendered it broader and more inclusive than had first appeared. In the same way, for example, the law "prohibits" coercive sexual activity either by redefining some practices which the recipients at least regard as coercive, as consensual, or by "not working very well". The prohibition is understood to remain - which facilitates a view of the law as well-intentioned - whilst simultaneously granting a range of permissions, which in turn underwrite protocols of sexual intimidation and control (Carrington and Johnson 1994).

In a recent constitutional monograph, Brian Galligan makes the case that Australian law is not founded on the law of the UK, despite Australia's constitution having originated as a statute of the imperial parliament.(5) The point of the argument seems to be that, whereas the reconstruction of the Canadian federal constitution required repatriation, excising the monarch from the Australian constitution would not: the Queen's powers exercised through the Governor General are, on this view, the product not the producer of Australian law's constitutionality and could therefore be changed following the normal procedures for constitutional amendment. At page 1 the prawns are definitely fresh:

...the Australian people were politically sovereign as the determining political force, and morally sovereign as the legitimate source of power. (Galligan 1995, p 1)

By page 160, apart from the perhaps larger problem of conceiving the moral sovereignty of those still engaged in the murder, child kidnapping and the theft of the land and culture of indigenous people (Clark 1981; Reynolds 1987; Reynolds 1981), another has arisen. The fresh prawns may also be frozen:

...as we have seen, the Australian constitution sets up a federal republican system of government in which the people are sovereign. (Galligan 1995, p 160)

The British monarchy loses all around on Galligan's fish stall, which seems to have been the intention; additionally, popular sovereignty wins as the cause and the effect of the constitution, and the constitution wins as the effect and the cause of popular sovereignty. Each element in the argument is given an identity in accordance with some notion of its origins. The difficulty is that both their origins and hence for him their identities seem completely at the mercy of the convenience of the moment.

One sees a similar pattern of thought in the (general absence of) discussion about the breaches of judicial tenure which characterise the current period of conservative government. Justice Staples was appointed during the Whitlam government to the federal Arbitration Commission with the status of a federal judge, removable under provisions mirroring those of s. 72 of the Constitution, which says that a judge "shall not be removed from office except by the Governor general in Council on an address of both Houses of Parliament on grounds of proved misbehaviour or incapacity." According to Michael Kirby, one of a very few writers to comment on the issue, Staples became unpopular with employers, and then with succeeding governments, both of whom perceived him to be pro-employee. For some years he was given no cases to arbitrate (Kirby 1990). Finally, in 1989, the Arbitration Commission was abolished by federal statute and replaced by the Industrial Relations Commission, a body with virtually identical powers and with the same judicial membership - with the exception of Justice Staples. No doubt encouraged by the ease with which Staples' tenure had been surmounted, the new state Liberal government of Victoria in 1992 dismissed eleven Accident Compensation Tribunal chairmen who had been appointed with tenure (under the state Accident Compensation Act 1985, s 42(2)), again, by simply abolishing their court (Age 2.2.92; Duncanson 1994).

The identification, in mainstream texts about the legal system, the constitution and civil rights, of the Australian legal system as one of the heirs of English constitutionalism - as an example of the Westminster system - generally includes some reference to the necessity for judicial independence (See Sampford and Preston (eds) 1996; Blackshield, Williams and Fitzgerald (eds) 1996; O'Neill and Handley 1994; Parkinson 1994). And whilst the inadequacy of some of Dicey's characterisations of "the rule of law" are recognised, none of the writers dissents from his remarks about the desirability of judicial independence and the means by which it is secured (Dicey 1950, pp 409-10). Like the frozen prawns, then, which turned out to be comprehended within the sign "Fresh Prawns", a system in which tenured judges may be dismissed by having their courts abolished by a simple Act of the relevant parliament, turns out to be comprehended within a system claiming to be the heir of the Act of Settlement and of the rule of law which is said to have been firmly established in consequence of the Whig revolution. One text, described as a work of political studies, which does very ably discuss the Staples affair nevertheless contains residues of the mistaken identity syndrome (Solomon 1992, chs 8 and 9): theoretically, the author argues, Staples and other examples he finds, should not have been dismissed; in practice they were. This still allows a system whose practice is one way to be theorised in another, more wholesome, way. (The Melbourne Age of 2.2.92 bet editorially a little each way in the case of the Victorian sackings: it was illegitimate to dismiss tenured judges, but necessary since their court had been abolished. This could, of course, be done in the case of every Australian court, as Solomon suggests).

A final example must be the land rights case, Mabo v State of Queensland (1992) 175 CLR 1; 107 ALR 1. In the majority decision, the view which had prevailed since 1788, that seizure of Aboriginal land by Europeans was justified because Aboriginal people had no concept of title and therefore no title, and in which courts had been complicit, was held to have been legally wrong. Deane and Gaudron, JJ express their view of the tragic consequences of the mistake thus: "the acts and events by which (Aboriginal) dispossession in legal theory was carried into practical effect constitute the darkest aspect of the history of this nation" (Mabo 107 ALR at 82). The outcome of the decision merits approval, and one recognises that it could have been achieved juridically by no other means than by the reversal what is recharacterised retrospectively as a mistaken legal doctrine. At the same time, it is obvious that two centuries of mistake have been most opportune for the migrants. Discovery of the mistake in the law here resembles the notion of a confession - and there is in parts of the majority judgements a confessional tone: in a confession one achieves an unachievable virtue by reiterating one's failure to achieve it. In Mabo the lawyers exonerated the law - the earlier regime after all, was, it turns out not the law - by discovering a hidden "real" law, always present, but only discoverable in the current present.

From a legal studies perspective the role of mistaken identity in lawyers' narratives may be more visible than from the law discipline. In the lawyers' stories what appears to have been a non-identity with the present - Justice Staples' tenure, the non-existence of Aboriginal title - turns out to have been a mistake. The identity of the (only now discovered; or if one follows Solomon, the real/practical behind the theoretical) past with present is restored. Because, from a legal studies perspective, it is not necessary to service the needs of legal narratives for coherence, it is possible to notice their peculiarities for those not positioned as lawyers. Whether such a critical distance can be maintained by scholars institutionally within the law discipline, whether it would still be possible, in Judith Grbich's words, to "begin to conceive of legal reasoning without its 'lawness', that is, not as a privileged representation, but just as representation"(Grbich 1992 at p 47; also abridged in Grbich 1991), is an open question to which it would be impolitic to guess an answer.

It is not impossible to conceive of preparing students for a law-job within such a framework. Studies of legality which do not privilege lawyers' narratives are not incompatible with competent ethnographies of lawyers' cultures. It is possible to provide an understanding of what the various kinds of Christians believe, what the world seems like to them and what they consider appropriate to do in this world, without sharing their religion. One may do the same with lawyers and the law. Dworkin's peculiar assertion (Dworkin 1986, p 14) that one must believe, that one must be an insider, in order to explain social behaviour satisfactorily, would require the anthropologist to be a Trobriander or an Azande; the sociologist of religion would have to convert; and, perhaps, from the perspective of such a theorist, to become a topographer one would first have to be a landscape. In practice, it seems that anthropologists undergo experiences similar to those which prompted the legal realists to reject contemporary conventional accounts of law. They learn what members of a culture tell them should happen, they make observations of what seems to happen and they hear accounts of the everyday compromises and changes which characterise a living culture.(6) If the analogous account of legal culture is an adequate beginning, the student may if s/he wishes take it as description, as a "how-to" guide, positioning him or herself as an apprentice; alternatively s/he may seek self-consciously to place the account in a theoretical context, furthermore acknowledging, as Grbich puts it, that "scholarship practices are.. one of the forms in which the politics of order are negotiated"(Grbich 1990. p 85).

But canons everywhere have their defenders: "without the (literary) Canon we cannot think", Harold Bloom writes, (Bloom 1995, p 41) an assertion which obviously implies that without it we shall have nothing of value to say. The difference between Dworkin and Bloom, who both want to study what makes authority authoritative (on the assumption that there is something with that quality; but that, at the same time the quality will only be evident to those who are, like themselves, already authorised to weigh the evidence), may be that Bloom is conscious of writing an "elegy". Literature's Empire, the cultural community governed by princely assessors of aesthetic excellence, heirs of Coleridge and Matthew Arnold, (Woodmansee 1994) is in process of being decolonised:(7)

What are now called Departments of English will be renamed Cultural Studies, where Batman comics, Mormon theme parks, television and movies will replace Chaucer, Milton, Wordsworth (Bloom 1995, p 519)

Revolutionary activity is only, by contrast, a distant rumble in the faraway provinces of Law's Empire, though clearly an irritant for all that.

3. Legal studies and corporately inspired vocationalism.

Legal studies scholarship in Australia, it is safe to predict, will continue in dispersed locations. Its demise as a discipline with an administrative base called Legal Studies has to be seen in the context, first, of a resurgence of conservatism in government and, second, of a lack of confidence in innovatory scholarship in a country which is oriented, and whose assets are largely owned from, overseas. As to the first point, vocational degrees (even where, as in the case of law, the vocation is over-provided with graduate candidates to the extent that a mere half of today's students are expected to find room in the professions: Thornton 1996; Duncanson 1997a) perhaps appear to university administrators, anxious to please their corporate and government masters, comfortably uncritical of conservative values. Claire Polster's account of Canada is equally applicable to Australia: in Canada, she writes, the state has ceded to industry

In Australia, as in Canada, the need to defend critical, creative and curiosity-driven scholarship originates in the cyclical return to an approach to education and knowledge which Matthew Arnold famously characterised as "Philistinism" - the conviction that, to be useful, knowledge must be closely related to some commercial activity in near proximity to being carried out. The education of Arnold's businessman, Bottles, is described: "none of your antiquated rubbish - all practical work -.. mind kept constantly excited - lots of interesting experiments - lights of all colors - fizz! fizz! bang! bang! - that's what I call forming a man" (Paul 1902, p 126). Paul explains to his Edwardian English audience that "the special phase of smug, complacent, philistine Liberalism at which it is aimed has ceased to be prevalent". (Paul 1902 loc cit). A century later we contemplate its smug revival, wishing, perhaps, for Arnold's humor. When Arnold's "Licensed Victuallers" or "Commercial Travellers" wish to educate their children, he says, they naturally think of a practical curriculum. Yet, he objects,

It is true that Arnold's culture, as it descended through Reith's BBC and Butler's reformed grammar schools, came to seem just as stultifying, paternalist and bureaucratically unresponsive as the Lloyd-George and Beveridge model of welfare (Timmins 1995, ch 16). But the problem of the paternalist state may be better solved by an attempt to educate informed and critically articulate citizens than by a return to "less eligibility", "utility" and the indifferent balancing of pushpin and poetry (Halevy 1928) - or in modern idiom, stringent welfare means tests, user pays public services and the substitution of vocationalism for liberal education. Turning the education system into "a vast factory committed to the production of specialists, technicians and fact collectors" leads its subjects, Barzun suggests, "inward, not outward, (to) a delicious muffin or a well-drawn lease, not....out to the great network of topics and questions about which the mind feels a permanent lust to know" (Barzun 1993, p 214) He adds:

- an anxiety prefigured in a 1990 Senate report (Senate Standing Committee 1990) criticising Australian universities for excessive technicality and lack of breadth.

Whether or not "consumerism" can be resisted in the sphere of education, the confusion of genres which places students as 'consumers" is of course evident. What gives the consumer particular force in neo-classical economic politics is his/her equality in a regime of freedom of contract, a regime which presumes equality of access to information about the value and qualities of the commodity bought (or sold). What brings the student to education is that s/he does not yet have the means by which to appraise the "product"( O'Neill and Solomon 1996).

Businessmen as such, along with corporate managers and shareholders, whose political agenda vocationalism reflects, are naturally suspicious of citizens, though, and wish that they would not try to secure social resources like pure water, transportation, health, welfare and education by collective means. Selling cars, private health packages and medication is more profitable to business, within the short run which dominates Anglophone corporate calculations, than building urban transit systems and hospitals and rendering the public environment healthy. It is better for business when people consent to be individual consumers whose needs can be explained to them and satisfied through the sale of a product. When lifestyles become matters of individual responsibility in this - paradoxically - corporately sponsored way, the people one sees in the world's richest cities eating discarded fries from garbage containers become personal not system failures. It is equally bad for business, and by extension economically irrational to have systems of knowledge and education pointing these things out.

The "negative" tendencies of public broadcasting and critical education, encouraging free thought instead of expensive consumption, are economically irrational and politically irresponsible (because hard to measure) and by extension unaccountable and unsafe (Duncanson 1997b).(8) If they cannot be made to make a profit themselves, they must, conventional wisdom holds, wholeheartedly embrace the values of those institutions which do.(9) The targets of Arnold's scorn are in the ascendant throughout the Anglophone world, their organic intellectuals hoping that the fizzes and bangs in education and elsewhere will deflect our attention from crumbling public infrastructure and from the garbage eaters and the sleepers in shop doorways.

As to the second point, the cultural consequences of foreign ownership and recent colonial status are hard to quantify; but it seems clear that the paradigms for both scientific and humanities research are set by the major cultural, political and economic powers in the international scene. The funding, the endowments, the classification of certain institutions and kinds of knowledge as "the best" track economic, cultural and other forms of power in the continuation of colonialism by other means. If the best business degrees are taught at prestigious US universities, Australian Vice Chancellors have been known to argue, for example, why don't Australian universities buy the appropriate videos. Instead of duplicating courses and lectures "best" created elsewhere, economies could then be made (and passed on to the "consumer") by hiring low-paid sessional staff in a support role. In the contradictory logic of colonialism, this entails also the view that what is not done, "best" or otherwise, overseas, should perhaps not be done at all. It requires a certain intellectual courage and cultural self-confidence to pursue a new course of scholarship in a social order which has been content to define itself as peripheral. In the context of legal studies, it is possible that the more generous the praise of government reports and international scholars for the uniqueness of legal studies, the more uneasy became the university managerial element.(10) Did something which had not already been defined as a major area for scholarship in the US and the UK have a place in Australia?

As a matter of disciplinary tactics, perhaps the question of disciplinary boundaries was not sufficiently attended to. More conservative scholars, legal doctrinalists, used to the existence of highly visible and tight boundaries, or researchers paid to make policy recommendations and requiring apparent certainty and the early closure of argument, may have found the field of legal studies diffuse and uncertain compared with law and the world of effectiveness studies and policy options. The conviction that law is inevitably doctrinal in form and vocational in aim is pervasive; as Sargent writes, the

There may have been, too, in the conservative approach to legal studies, an element of what Zoe Sophoulis characterised as a male gendered (which by no means implies masculine biology) approach to feminism, "the mistake of seeing feminism like any other field of knowledge: a topic to 'get on top of' and subsume in an efficient set of 'isms' of which one claims knowledge" (Sophoulis 1995, p 36). For such scholars, broad and shifting boundaries of a kind that would have permitted wide-ranging research provoked the suspicion that legal studies was boundless, therefore amorphous and unidentifiable. When it was necessary to defend the discipline against the corporate politics of vocationalism, it may have appeared to the conservatives that there was nothing to defend.

Other "Studies" areas, by contrast (and from a much more stable base) than legal studies have so far survived rather better. Women's Studies found itself more able than legal studies to deploy what Gayatri Spivak has termed "strategic essentialism" (Spivak 1993, ch 1) (11) at least establishing a consensual frontier behind which to continue the arguments. And it may be that in cultural studies the concept of a text (which as Derrida has said, is not confined to the library) has supplied a more robust alternative to the literary canon than legal studies' alternative to the legal canon. In the end, though, whilst in the Anglophone world law and English were constructed as disciplines at more or less the same time and for similar national and imperial purposes - one thinks of Macaulay's embodiment of several of these links - law remains now more politically sensitive and central to important myths about the nation and the state.

4. The law discipline as a space for legal studies.

Cultural studies' refusal of the literary canon has caused hostility and lamentation. The outrageous suggestion that "ideology plays a considerable role in literary canon-formation is common to all six branches of the school of resentment ( which are as expected: Bloom 1995, p 527): feminists, Marxists, Lacanians, new Historicists Deconstructionists, Semioticians". The sentiment is echoed in Australia by two journalists, aghast at the news that "according to one professor, a graduate student who chose not to adopt a theoretical stance in his thesis would at least have to explain why" (Maslen and Slattery 1994, Introduction, np. But see Levine 1996). One recalls eagleton's remark about the conservatives' "astonishing arrogance of believing that it is others who have political assumptions while you just take the stuff straight" (Eagleton 1992, p 40)

In legal studies an analogous decentering of the legal canon would strike at the political sensitivities of still more powerful people. Scholarly critique of legal institutions, even a departure from the traditional courses in a law school curriculum sparks more alarm than the dismissal of tenured judges or democratically elected governments. William Twining concluded in an optimistic vein a discussion of the difficulties experienced by academic lawyers proposing scholarship ideologically at odds with extramural professionals: maturity would come soon, he predicted, "puberty is upon us" (Twining 1974). Developments in the twenty years since he wrote, at least in Australia, do not suggest that universities have grown up to the point of being able to resist pressure from a conservative legal profession, one perhaps more closely, ideologically and materially, associated with corporate business than ever before. Thornton writes of "the striking degree of conformity (in) legal education and the extraordinary degree of deference towards the professional mainstream" (Thornton 1991, p 20. See also Rhodes-Little 1991).

Although there is ostensibly scope for diversity in legal education with the recent doubling of the number of Australian law schools, the evidence of diversity is largely restricted to statements of objectives of the law school. (Thornton 1996, p 75)

One notices the pressure for conformity. Twenty years ago, Frank Hutley, then a justice of the New South Wales Court of Appeal could complain publicly that "..some law schools have sought to inculcate standards in lawyers by interesting them in poverty, the Aboriginals, the environment.. in my opinion enthusiasm for the end is in the end destructive of integrity" (Sexton and maher 1982,p 7). In the context of obvious hostility to innovation and change, it may be unsurprising that when such new subjects as welfare law, environmental law and aborigines and the law were added to the curriculum they were for the most part legal subjects in all senses of the term. And things have not changed as much as one might wish.

More recently, the ire of senior lawyers was drawn toward feminism in the law school by a scandal in Melbourne (See Trioli 1996). Two women law students at Melbourne University complained to the council of their residential college in November 1991 that they had been sexually harassed by the master of the college. A private meeting between Daryl Dawson, chair of the college council, member of the federal High court (and lone dissentient in Mabo) and a woman representing the young women in an effort to begin an informal settlement process was "unsatisfactory" (Mead 1995, p 172). The council appointed a committee of inquiry, after whose report the council expressed its "full confidence" in the master. Unsatisfied, the women complained to the police and to the Victorian Commissioner for Equal Opportunity. The master was prosecuted, convicted on one count, but succeeded on appeal in the criminal court. Before the state EO Commissioner the matter was conciliated, and the college agreed to make a public apology and pay compensation to the two women. The master resigned.

The scandal here was, of course, the young women's determination to use the law where they considered the college's procedures to be inadequate, together with the misery it was felt they had inflicted on the master: lawyers, commercial talk-back radio hosts and right-wing columnists were at one.

The comment was heard up and down Collins Street (where the courts and the commercial bar of the state cluster) at the time - "they'll never get work in this town". One prominent Melbourne barrister told me of some lawyers from "the top end of town" who were...obsessed with the case...furious that these women could do this.. and the women's supposed legal anonymity.. was a nonsense. "Everyone in their profession, their world knew who they were - these women were never going to get articles in this town. (Trioli 1996, p 23)

As part of a conservative reaction, the novelist Helen Garner sent her sympathies to the master and his family, expressing shock at the "ghastly punitiveness" of modern feminism which had led to his victimisation. Her subsequent bestseller The First Stone (Garner 1995) told the story in a non-documentary way - changing the characters' names, for example and fictionalising one of the people advising the women into six characters, producing in consequence the possibility of a "feminist conspiracy"(Mead 1995, 165) of silence and vindictiveness. The Vice-Chancellor, the dean of Law, the editor of the Australian Feminist Law Journal and the senior partners of several Melbourne law firms, all received communications from a senior Melbourne lawyer expressing support for the views of Helen Garner and voicing anxiety about "standards" at the law school, since it was clearly inferred that the women in question had been incited to unreason and disruption by feminist courses at Melbourne University law school. On 22.6.95, someone described as "a senior partner of a top law firm" was quoted on a peak hour ABC current affairs program "denouncing feminist legal studies and warning that students of the course may miss out on a job." (ABC 22.6.95)

In this context, and where the ambits and ambitions of feminist courses stretch, at one end, from persuading the more redneck judges, officials and law teachers to use try to use "gender neutral" language, to, at the other end, perhaps, the exploration of a more emancipatory gender politics in which to locate the subjecting discourses of sexuality and legality among others (Grbich 1990; Cornell 1995), it is easy to see which end of the spectrum would seem more defensible to a beleaguered dean or to a university bureaucrat who sees the law school as a conduit for the university into important decision making structures in the local metropolis (Weisbrot 1989, 125). Too, if students who wish to retain the option of becoming court or office lawyers are given the impression that to have the names of certain courses on their transcripts will handicap them, they will be reluctant to support those courses.

5. In-conclusion

The argument of the paper has been, essentially, that to be have a point, legal studies must operate at some remove from the traditional vocational priorities of the law discipline. Unless it does so it is redundant. This does not place it in a hostile relation to law as a way of seeing the world of social order, since lawyers' cultures may studied as one of a number of interpretations of legality, one of several ways of answering the question "what is law (for whom)?" Since, currently in Australia, only a minority - albeit a large minority - of law graduates can expect to practice law, there is an additional justification for heeding the old ideals of a liberal education and adding some plurality to the homogenising protocols of law as a disciplinary enterprise.

The obstacles are, first, lawyers' traditional reluctance to hear or allow credence to any but their own views of what law means (the concealment of the question, "to whom?"); and the subordinate relationship of universities to short term corporate definitions of what constitutes a relevant or useful education. This subordination obstructs universities' recourse to academic justifications for pedagogic and research trajectories, opening them to the temptation to satisfy as cheaply as possible the demands which the equivalents of Arnold's businessman Bottles make for fizzes and bangs. It is too soon to tell to what ends legal studies will come, scholarly or institutional.

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(1). A version of this paper was given as the 1996 Chet Mitchell Memorial Lecture at Carleton University, Ottawa. Back to text.

(2). Ziegert 1992, p 204: "The suspicion that not law, but something else provided the intrinsic interest for studying law is supported by our finding (at the University of Sydney) that the curricula of the law school by themselves had practically no appeal to the students when they decided to study law". Back to text.

(3). Readers of HLA Hart will remember that he described his "essay in descriptive sociology" in the beginning as a way of defining law through "ordinary" usages. Ordinary language philosophy, however, generally sought convergence on single meanings by disqualifying those which were incorrect or inconsistent with informed usage. Back to text.

(4). Who reasons at this point, in a species of fiat: "Everything is what it is: liberty is liberty, not equality or fairness or justice or culture or human happiness or a quiet conscience". Back to text.

(5). The Galligan argument demonstrates how meanings suit convenience whilst seeming to reflect necessity in law narratives. But whilst his preoccupation may seem trivial, Australia's having a less homogeneous governing establishment than the UK means that a serious lack of consensus about the appropriate steps to take is more likely to arise. It is not unprecedented that judges, elected governments and state and federal governors disagree - hence the 1975 dismissal. Lord Melbourne's famous remark about the British cabinet - "It is not much matter what we say, but mind, we must all say the same" - is harder to realise. Back to text.

(7). With, perhaps all the usual symptoms of that process, if we follow Kwame Appiah: "Postcoloniality is the condition of what we might ungenerously call a comprador intelligentsia.. of a relatively small Western-style, Western-trained group of writers who mediate the trade in cultural commodities at the periphery:" (Appiah 1995). Peter Goodrich detects similar tendencies in the early resistance to law's empire (Goodrich 1995). Back to text.

(8). And see the sorry collection of cliches to which universities are supposed to swear allegiance recited in Barrett 1996 (Veit-Brause ed 1996). Should an author who cannot decide whether students are commodities or consumers or customers not restrict himself to an area he knows better? A competent proponent of a cannibal society should at least be able to distinguish guests from components of the banquet. Back to text.

(9). In a - later disapproved - quest for cost reduction, some rural state police officers in Victoria discovered that it was more efficient to test each other's alcohol levels in the police station than to set up road blocks. The translation of "business" practices of enterprise accounting into other areas risks missing the point. Back to text.

(10). A 1987 report on legal education commented that the Legal Studies department at La Trobe had a research output "better than most law schools" (CTEC 1987;. also C McInnis, S Marginson and A Morris 1994, ch 13). Back to text.

(11). Spivak acknowledges the dangers of forgetting that strategies are not the same as theories, good for all purposes (until they are rejected), but artificial, designed to trick or confuse an enemy: "the strategic use of an essence as a mobilising slogan or masterword like woman or worker or the name of a nation is, ideally, self-conscious..the critique of the "fetish-character"..of the masterword has to be persistent all the way along.." (Spivak 1993, pp 3-4). Back to text.

United Kingdom Journals

The Ends of Legal Studies⁽¹⁾

Ian Duncanson

Summary

Contents

1 Introduction.

2. Legal Studies as a discipline in Australia

3. The law discipline and mistaken identity.

3. Legal studies and corporately inspired vocationalism.

4. The law discipline as a space for legal studies.

5. In-conclusion

Bibliography

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United Kingdom Journals

The Ends of Legal Studies(1)

Ian Duncanson

Summary

Contents

1 Introduction.

2. Legal Studies as a discipline in Australia

3. The law discipline and mistaken identity.

3. Legal studies and corporately inspired vocationalism.

4. The law discipline as a space for legal studies.

5. In-conclusion

Bibliography

The Ends of Legal Studies⁽¹⁾