'Towards A History of Law As An Academic Discipline' by Susan Bartie in (2014) 38
Melbourne University Law Review 444 [
PDF] states
The purpose of this paper is to argue for more histories of Australian legal scholars that
study their endeavours through the lens of legal education; in other words, studies which
situate legal scholars within the context of Australian law schools. I argue that these
histories could contribute vitally to the history of law as an academic discipline in
Australia by providing crucial insights into two of the most important developments in
the history of law, lawyers and legal education: the movement of legal education into
universities and the significant expansion of university law schools. I suggest that such
histories could contribute to the basis of rational discussion within the discipline, adding
to its intellectual core.
Bartie comments
Within the last 160-odd years two of the most important developments in the
history of law, lawyers and legal education in common law countries have
been the movement of legal education into universities and the significant
expansion (in terms of student, academic and graduate numbers) of law
schools within those universities. These changes to legal education had — and
continue to have — the potential to influence dramatically the nature of
lawyering, judging, the form and content of laws, the relationship between law
and society, and the permeation of legal techniques into a broad spectrum of
professional life, public services and private endeavour. And yet the intellectual
puzzles raised by the changes have not received the attention
they deserve.
At the broadest level, the shift to university legal education raises the obvious
question: ‘how did the founders of university legal education frame the
problem of university legal education and how did they try to solve it?’ The
significant expansion of university legal education in the middle of the
20th century — bringing with it full-time university students, a community of
full-time legal scholars and an identity (for both graduate and scholar)
transcending legal practice — requires a slight rephrasing of this question so
that it becomes: ‘how did a community (as opposed to the small scattering of
founders) of legal scholars along with government, the legal profession and
the university more generally, frame and solve the problem of large-scale
university legal education?’
The underlying normative premise of much that follows in this article is
that, at least in Australia (the primary focus of this article), we have hardly
begun to ask — let alone answer — these questions. The ultimate message,
robbed of all subtlety and nuance, is that we need more studies. While this is a
value-ridden claim that is based on my impression of existing scholarship, I
note that I am not alone in making this observation. My premise implies that
there is a way to carry out histories of legal education and that such studies
either have not been done, or, if they have, they are insufficient in number. I
am therefore making an implicit criticism of the present scholarly terrain. To
make good my claim I am therefore obliged to explain what is needed and
demonstrate why the body of existing histories falls short.
The phrase ‘legal education’ will be used throughout this paper to refer to
the phenomena described above: the transplanting of legal education into
universities, and the endeavour that promoted and sustained the existence of
law schools. In this sense legal education in Australia is largely synonymous
with law schools. Such endeavour includes teaching, scholarship, administrative work and any other activity that directly or incidentally shaped, furthered
or hampered university legal education in Australia. The enterprise of legal
education is therefore broader and, I would argue, more important than any
one of these things and certainly must be explained through something more
than what occurred in the classroom. How legal scholars conceptualised and
advanced certain fields of study are, as will be argued, a central part of any
account of the trajectory of legal education. For most of the 20th century,
Australia did not have research institutes like the Max Planck Institute
established in Germany in 1911, where law could be studied independently
from law schools and teaching. Unlike the natural sciences, pure research
into law was not something that supported the place of law within Australian
universities. Instead, the movement of legal education — the education of
legal practitioners — into universities and the associated growth in full-time
legal academics is what enabled the growth and professionalisation of legal
scholarship. In Australia the destinies of scholarship and legal scholars both
explain and can be explained through the context of legal education.
As argued in the body of this paper, to contribute to these broader histories
scholarly fields ought to be studied through what I describe as the ‘lens of
legal education’. In other words, they must be studied for what they say about
the character and identity of legal education at particular points in time. For
example, were fields advanced to improve the education of the law schools’
undergraduate or postgraduate body or to educate members of the legal
profession or judges? Or were they advanced to enhance the academic
credentials of legal scholars so that their teaching would be respected and so
that law would be understood as properly deserving the title ‘academic
discipline’? Conversely, was there little or no relationship between the
platform of legal education (the institutional context) and how scholars
thought about their scholarship? If this was the case, on what basis was their
scholarly endeavour justified? The history of legal education therefore
includes, but is larger than, the history of the disciplinary practices that
shaped the discipline of law. It should be added that government, the profession,
other university disciplines and management also play a crucial role in
explaining the growth, form and continued existence of university
legal education.
The purpose of this article is not to provide an exhaustive description of all
of the work in this area or to provide a definitive template for the field, but to
explain that something fundamental is missing. I do this by both advancing
argument and by elucidating examples of existing works that contribute
partially, and in some cases fundamentally, to the intellectual puzzle of the
birth and rise of modern legal education.
Bartie concludes
When the masterful foreign histories of legal education are known to few,
when local equivalents lack the critical muscle and depth of their overseas
counterparts, when vague and misleading impressions of history have been
used strategically to suggest a radical new course for teaching and scholarship,
where enthusiasm for history in law is lacklustre at best, and when scholarship
and theory about legal education is treated within the academy as a
specialised pursuit and shunned by many of its brightest, it is easy to appreciate
why convincing others of the need for a certain kind of robust inquiry into
the history of law as an academic discipline will be difficult. Nonetheless, that
is what I have tried to do in this article. More should be done to work out
what Australian legal education is and what it has been before more claims are
made about what it ought to be. If it ever occurs, the writing of a body of such
Australian works may further convince others of the importance and role of
such works. My purpose has been to suggest ways that legal academics can be
studied through the lens of legal education to benefit both our understanding
of the trajectory of academic law and university legal education as well as our
understanding of those scholars. Not only does this open up a large field of
subjects to study, it also encourages methods of scholarly inquiry that locate
legal ideas within their context. Far from being an esoteric indulgence, I hope
to have shown that the history of the scholarly agendas and endeavours of the
legal academy should be of primary interest and concern to all legal scholars
of integrity — those who think hard about what and how to write and
teach — and is important for rational discussion about both law and legal
education. Effectively responding to and outwitting some of the curious
demands presently being made within Australian universities requires
such integrity.
