It’s 2004 and Boston Legal defence lawyer Alan Shore rises to his feet to deliver a blistering defence of personal misconduct, immorality and criminal negligence. He tells the court that ‘every first year law student is taught: don’t ever, everequate legal ethics with morality. They’re almost always mutually exclusive.’

Eight years later, I sit in a first year lecture at Sydney Law School and I am told the exact same thing. Our first year lecturer, smiling at the irony of the statement, tells us that law and morality are distinctly separate concepts. Even if they do sometimes overlap, he says, it is naïve to presume that they always will, or must, do so.

In saying as much, my lecturer unwittingly mirrors the sentiments of the Austrian philosopher Hans Kelsen, who once proclaimed that law is hopelessly contaminated by the baggage of moral philosophy and social science, and that both should be tossed aside in favour of studying “pure law”. “Pure law” can be taught without reference to morality at all, Kelson argued, for law does not derive from morality but merely prior legal norms.

Law need not be considered in its political or social context, but rather as an abstract, scientific entity unto itself. Judges need not refer to basic principles in every judgment; they need only refer to past precedent. This line of thinking is the hallmark of legal positivism, a branch of legal theory that now dominates legal education in most Commonwealth countries.

Australian law schools have increasingly begun teaching law through legal positivism alone, ignoring critical thinking, ethical engagement and moral considerations regarding the merits of the law.[1]

“When a choice has to be made [by most law schools], the social is deemed dispensable because its inclusion is not specified by the admitting authorities,” says the University of Queensland Associate Professor Tamara Walsh.[2]

Legal positivism in Australia has been entrenched by the “Priestley Eleven”, a set of compulsory law subjects established by committee in 1992. Taught by every law school, the majority of these subjects focus on “black letter law”: content that promotes the study of what Kelsen defined as ‘pure law’, over the conceptual and moral critique of legal authorities. Aside from Ethics itself, a diminutive subject where students are taught the “rules” of legal ethics instead of the philosophy of what makes them ‘ethical’, most of the “Priestley Eleven” focus on the learning and application of case law and legislation to facts; ethical behaviour and critique is sidelined. Indeed, in 2000, the Australian Law Reform Commission critiqued the “Priestley Eleven” for precisely this reason, stating that the list tends to substantiate “what lawyers need to know”, rather than “what lawyers ought to do”.[3] 

Tamara Walsh raises a similar concern:“As long as the traditional law subjects of torts, contracts, property, equity, trusts, corporate law and evidence dominate the curriculum, the expense will be a deep appreciation of ethical standards and professional responsibility”.[4]

Instead of being taught how to think in a critical manner, questioning how, why and if the law is correct, students are taught to substantiate their thinking using prior legal authority alone. If Kelson were alive today, he would applaud “legal problem questions”, a uniformly accepted testing method where students are asked to apply cold legal principles to a set of hard facts, at the expense of considering psychological, emotional and ethical dilemmas inherent in the problem.

In an event where students are asked to defend someone who has prima facie committed murder, students are encouraged to sideline the myriad ways in which the accused can be condemned (aside from proscribed punishments) and defences that can be raised (aside from proscribed defences). Facts are fitted to precedent, so that the puzzle of conviction is never questioned, no matter how puzzling a conviction becomes. It is almost never pertinent for a law student to ask for more facts to uncover contextual information, unless that information is directly relevant to a legal point in order; if you want to dissect the murderer’s psyche, go and study psychology. 

In 2013, I raised these and other concerns with the Sydney Law School, petitioning the Faculty to change the Law School’s 100% examination policy in a few core Priestley Eleven subjects.

I suspected that by advocating essays, speeches, group work and other formative assessment tasks, I could help reorientate the student mentality at Sydney Law School beyond a simplistic understanding of law as “pure law”.

Rebuffing my suggestions, I was told that a law degree is a vocational degree, and that examinations teach the appropriate “graduate skills” required of those entering the legal profession. These skills include requiring “students to demonstrate a thorough understanding of principles and an ability to apply that understanding to solve problem questions.” The response was, in essence, that Law School is about applying law to a set of facts.

The Law School, in its response, tends to ignore the fundamental inadequacy of black letter law courses. By advocating a clinical, detached, dehumanized version of “pure” law through “rigorous” black letter study, its approach tends to dehumanize a student’s response to a highly emotional set of circumstances by making emotion and human compassion an irrelevant afterthought. I recall a similar approach in a third year Criminal Law class, in which the tutor stated, ‘The content of this class on sexual assault may be troubling to you, but remember you just need to apply the law to the facts.’

Some Law Schools have adopted a variety of measures to rectify this situation. The University of New South Wales adopts the clinical simulation approach, where  students take on real cases with real people in a legal office located on campus.  Participants in the 2012 program spoke of how interesting it was to see clients firsthand and deal directly with their issues in criminal and family law. The clinical approach presents a direct emotional connection to clients, rather than a hypothetical client in examinations.  Seeing and speaking to real people renders them much harder to dehumanize. 

Other universities have remained stagnant in adopting new teaching methods. Many still abide by what Justice Kirby once called, “a few lectures thrown in at the end of a [law] degree”.[5] Students at Sydney University have become so frustrated with the status quo that they have taken matters into their own hands, establishing a Critical Legal Students Network. The Network goes beyond discussions of ‘what is the law?’ to ask ‘why is law the way it is?’ Although still in its infancy, the group has been expanding over time and has received attention from students outside of Sydney Law. Its discussions of the oppressive nature of legal institutions, prisons, identity in the law and other unique issues arrive at a critical time where law schools are absent of such teachings until fifth year electives.

In conclusion, a framework that questions “why” is an effective way of questioning the law beyond a strict positivist framework. Law schools might adopt this model as a central component behind the majority of compulsory courses, rejecting a simplistic application of law to facts and adopting a well-rounded testing method.

 

 

———-

[1] Margaret Thornton, ‘The Law School, the Market and the New Knowledge Economy’ (2008) 17 Legal Education Review 1; Tamara Walsh, ‘Putting Justice Back into Legal Education’ (2008) 17 Legal Education Review 119.

[2] Margaret Thornton, ‘The Law School, the Market and the New Knowledge Economy’ (2008) 17 Legal Education Review 1, 650.

[3] Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System, Report No 89 (2000).

[4] Walsh, ‘Putting Justice Back into Legal Education’ (2008) 17 Legal Education Review 119, 52-53.

[5] Justice Michael Kirby, “Legal Professional Ethics in  Times of Change” (1998) 72 Autralian Law Reform Commission Reform Journal 5, Speech to the St James Ethics Centre.