I
TURBULENCE IN THE LAW SCHOOL :
REPUBLICAN CIVILITY vs. PATRICIAN
DEFERENCE?*
Andrew Fraser
Introduction
n an unfortunately often onesided and inflammatory manner the recent media
coverage of the “troubles” at Macquarie University’s School of Law has,
nevertheless, identified a key element in much of the strife and instability affectin
that Law School. By locating the roots of the prolonged conflict within the Law
School in a perceived lack of civility and mutual tolerance the media has hit upon
an important truth. A fundamental error is committed, however, if it is believed that
the sources of that incivility lie in the negative and destructive influence of a few
notorious ringleaders of revolt.
I
A revised version of Fraser,
et al, Towards Civility: A Preliminary Submission to rHE
Committee to Review the School of Law, Macquarie University (July 1985); an earlier
revision was published as Fraser, et al, Towards Civility : A Preliminary Submission to the Law
School Review Committee, 2 Ticket OF Leave 29-31 (1985). Both revised versions have
omitted the lengthy documentation accompanying the original submission.
44
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Incivility within the School of Law has not been the product of bad tempered
and ill-mannered behaviour on the part of a dishonorable and dogmatic few. Rather,
incivility was a condition that, in one way or another, had been imposed upon all of
us together. Incivility was, for us, not a form of behaviour at all; it was a condition
of our existence. From its earliest days, the School of Law had been embroiled in
a conflict, not between the incivil few and the civilized many, but between two
competing ideals of academic civility, neither of which was able to establish itself
on a secure institutional foundation.
Norms of civility, whatever they may be in specific terms, pre-suppose the
existence of a civic ethos binding disparate individuals together in some shared and
public, common enterprise. One of the two ideals of civility that has been articulated
within the School of Law could be called the classical (or even, if one prefers, the
republican) model. According to this ideal, norms of civility will emerge out of the
civic ethos appropriate to a self-governing community of legal scholars in which
matters of common concern are dealt with in accordance with the political principle
of equality. The competing model of civility is an essentially aristocratic ideal. This
tradition of civility is rooted in the conventions of polite intercourse and automatic
deference associated with the dominance of a patrician elite in English civil society
and its colonial offshoots.1 Not at all coincidentally, one of the last strongholds of
this time-honoured tradition, apart from the universities themselves, happens to be
the bar, bench and legal profession of New South Wales. The corporate culture of
the Law School had both academic and professional determinants: both contributed
to the emergence of an unmistakably patrician or aristocratic model of civility in the
person of the Foundation Professor of Law at Macquarie University, the now Mr
Justice Peter E. Nygh.
Flowing from a tradition that is just as deeply rooted in British academic, legal
and political history as the aristocratic ideal of polite deference to one’s civil and
political superiors, the classical model of civility seeks to cultivate the courage and
prudential understanding necessary to act and speak publicly in pursuit of some
particular substantive vision of the good.2 By contrast, the virtues appropriate to the
patrician practice of civility require a private and personal attentiveness to the forms
of polite and “civil” interaction between superiors and inferiors in a rank-ordered
society based upon academic and intellectual property, patronage and influence.
1
See H. Perkin, The Origins of Modern English Society, 1780-1880 (Routtledge and Kegan
2
See J.G.A. Pocock, The Machiavellian Moment : Florentine Political Thought and the
Paul 1969).
Atlantic Republican Tradition (Princeton 1975).
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Civility and Academic Self-Government
hose who espoused and sought (as best they could within the circumstances)
to practice within the School of Law the virtues associated with the classical
ideal of civility recognized from the beginning that their preferred model of ci
interaction could only be realized through a process of academic self-governance.
To the extent that the School of Law has been very largely denied the capacity to
control its own corporate development in matters of appointments, tenure, promo­
tion, selection of students, and so on, it has been incapable of generating within itself
a binding civic ethos. On the contrary, we were constantly pressed to accept the
institutionalized passivity inherent in our formal status as individual employees
subject to administrative scrutiny and academic standards forever outside our
control. Lacking the institutional capacity to generate a binding civic ethos among
ourselves, we were forced to rely upon the University to provide us with the sort of
academic and intellectual leadership presupposed by the pre-eminent constitutional
role of the Professoriate (a category that, for all practical purposes included As­
sociate Professors). The enormously steep power gradient which separated the
Professoriate from junior lecturing and tutorial staff was justified only by the
unspoken and taken-for-granted assumption that members of the Professoriate,
individually and collectively, enjoy the spontaneous respect and automatic
deference of their academic subordinates. Without that spontaneous respect, the
patrician model of civility could hardly survive as the legitimate foundation of
Professorial authority.
T
Unfortunately and for reasons in large measure beyond its control, the Profes­
soriate within the Law School was incapable of commanding the actual respect and
freely bestowed deference which its formal institutional position demands. One way
of overcoming this problem would have been the formal abolition of the division
between professorial and sub-professorial staff within the School of Law and the
adoption of a three tiered system of academic rank, distinguishing only between
assistant, associate and full professor.
What this suggestion amounted to, in fact, was a call for the fusion of the
academic legal profession at Macquarie University. The artificial and obsolete
division between an academic nobility and the untitled commoners who inhabit the
School cannot be justified by analogy to the functional divisions that have given rise
to distinct branches of the legal profession. In both cases, professional divisions
borrowed from England have engendered a patrician ideal of civility that demands
from both solicitors and legal academics an unconscious acceptance of their own
inevitable inferiority and due subordination to bar and bench. Within the academic
branch of the legal profession at Macquarie the superordinate role of the Profes­
soriate has not generated a concomitant belief in its intellectual and academic
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47
superiority. Throughout Australian legal education the established Professorial elite
has created a tradition of legal scholarship that even conservative jurists such as Mr
Justice Hutley acknowledge, “has in the main been mediocre”.3 At Macquarie it
seemed clear that standards of excellence in legal scholarship and teaching were far
more likely to arise out of the practice of collegial decision-making than from the
enlightened leadership and accomplished wisdom of an acknowledged Professorial
elite. It followed that the invidious division between the Professoriate and the
lecturing staff should be abolished.
Given the well-entrenched position of the Professoriate within other Schools in
Macquarie University and throughout Law Schools in Australia, such a suggestion
must have seemed merely quixotic. But it had, at least, a symbolic virtue: it
highlighted the perceived illegitimacy of Professorial dominance within the internal
life of the School of Law. Despite the obvious sanctions attendant upon their breach,
the patrician norms of civility never established firm roots within the School of Law.
In a sense, the Professoriate within the School of Law, under the original leadership
of Professor Nygh (as he then was), sowed the seeds of its own decline.
The attraction of Macquarie University Law School for a number of early
appointees (after the initial installation of the two Professors) was that it offered the
opportunity to work out collectively a mode of legal education and academic
governance which was indeed radical: an alternative legal education which was to
be conceived on academic and scholarly criteria and implemented as the product of
a dialogue among equals. Thus, with the exception of Professor Nygh’s introductory
course Structure ofLaw, early courses were largely worked out by groups of teachers
with drafts submitted to the entire academic staff for discussion and general
agreement. From this time onwards, the Law School played a significant role in the
developing movement for an open and democratic system of School and University
governance. In the School of Law a classical model of civility appeared to press its
own distinctive normative requirements, in opposition, if need be, to the reigning
Professorial ethos. Decisions, it was widely believed, should be reached after open
discussion in elected committees with authority in the School to review, adopt or
reject recommendations. For those who came to embrace the emergent classical
model of civility, the Head of School was to be regarded as “first amongst equals”
in what might become a “little republic” of legal letters (a perception reflected, at
least in part, in Professor Nygh’s willingness to accept an equal teaching load with
Tutors). Unfortunately, Professor Nygh’s patrician instincts drove him to reject any
suggestion that the Head of School should be responsible or accountable to the body
corporate of the School.
Professor Nygh was invoking the patrician ideal of academic civility when he
insisted that he had a formal mandate “to create a course of professional training”.
It was his expectation that the authority of that proclaimed mandate would receive
3
Mr Justice F.C. Hutley, The LegalTraditions ofAustralia as Contrasted withThose ofthe United
States, 55 Australian L.J. 67 (1981).
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spontaneous recognition and automatic deference. For Professor Nygh it was
axiomatic that a patrician elite composed of senior members of the Professoriate,
the legal profession and the judiciary possessed the authority to prescribe the
intellectual parameters of a professional legal education. That axiom, as he himself
recognized however, held true only on the assumption of the infinite reformability
and essential rationality of the existing structures of legal authority. Any alternative
to the existing models of legal education would, according to Professor Nygh, fail
in its obligations to the University and the Supreme Court should it refuse or omit
to incorporate that assumption into its curriculum, teaching and research activities.
However valid that understanding of the role of legal education may have been, the
members of the Professoriate have failed, on the whole, to provide effective
leadership in translating it into a concrete sense of institutional purpose and direction
such as might win the respect and deference of their academic juniors. One might
say that the crisis of liberal legalism had progressed to the point where the established
forms and centres of legal authority came to be widely regarded within the academic
legal community (and certainly at Macquarie Law School) as devices to further
entrench illegitimate hierarchies and fixed social roles. Granted the existence of that
critical perspective, it could hardly be taken for granted that the Supreme Court of
New South Wales should have the determinative voice as to the nature, scope and
purposes of legal education at Macquarie.
To the extent that Professor Nygh offered the hope of academic and intellectual
leadership, it was in the name of a socially aware alternative approach to legal
education. He never fully realized that such a project would entail the rejection of
both his patrician norms of academic civility and the conventional commitment to
“professional controls”, the combination of which had already stultified AngloAustralian legal education.
As a consequence of that intellectual blind spot, Professor Nygh was soon swept
up in a localized manifestation of what has become known, in the manner of grand
social theory, as the crisis of liberal legalism. Others, most notably Roberto Unger,4
have documented the persistent antinomies and fundamental incoherence which
plague modem legal consciousness. The significant point here is that in the mid­
seventies anyone interested in critical legal scholarship of the sort that might form
the basis for an alternative to established models of legal education was bound to
view with suspicion the notion that the primary, if not sole purpose of legal education
should be to provide students with a professional qualification to practice law. The
logic of that view seemed to imply that the ultimate authority in matters of legal
education was properly vested in the Supreme Court of New South Wales. How
could an alternative legal education develop if control over the direction and
purposes of its academic program was seen to lie with an outside professional and
judicial body? How could academics who had committed themselves to a life of
legal scholarship possibly teach - or be required to teach - their students the practical
4
R. Unger, Knowledge and Politics (Free Press 1975), and Law
Press 1976).
in
Modern Society (Free
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49
skills of the working lawyer? (By practical skills is not meant the methods of
analysis which are required to critically penetrate and understand legal materials of
all kinds.) Just as practice as a solicitor is seen to be incompatible with membership
of the bar, the practice of legal scholarship generates its own distinctive professional
ethos. Legal scholars have become a separate academic branch of the legal profes­
sion. As such they have their own distinctive functional role to play in the ongoing
development of the legal order.5
The Failure of the Patrician Model
here were those here, therefore, who claimed that in the final analysis (after
all due forms of consultation and review by other interested authorities)
responsibility for the directions and purposes of legal education at Macquarie
University must rest with the School of Law itself. Professor Nygh’s assumption
that ultimate authority lay elsewhere posed a direct threat to the emergence of
anything like a classical model of civility within the School of Law. No Professorial
mandate “to create a course of professional training”, was, in itself enough to induce
all of us to accept as an article of faith the ultimate authority of the Supreme Court
of New South Wales in academic matters. If that responsibility lay with us, it
followed that it could be discharged only if the School of Law was recognized as
competent to manage its own common and academic affairs.
T
Those wedded to the classical model of civility saw in Professor Nygh’s
heteronomous approach to legal education, not only an intellectually indefensible
and personally offensive demand that we subscribe in advance to certain conclusions
as to the nature of the contemporary legal order, but also the crushing of the hope
that the School of Law might play a significant role in the development of an
autonomous tradition of critical legal scholarship and teaching. For Professor Nygh,
the effort to constitute an independent and critical tradition of legal scholarship
prepared, in principle, to entertain the proposition that the contemporary legal order
is “inherently corrupt and incapable of reform from within” amounted to a serious
breach of the School’s mandate as entrusted to him. It was however no solution,
then or now, to brand those pursuing some version of critical legal scholarship as
being somehow “incivil”. Those committed to the classical ideal of academic
civility have themselves been insulted and offended by oligarchical practices, in
matters of appointment, promotion and tenure, bereft of readily discernible or
coherent standards of academic excellence and scholarly achievement. Such prac­
tices represent a direct affront to a classical sense of academic collegiality. The
challenge to Professor Nygh’s patrician ethos was one which by its very nature could
5
See Meagher, The Scope and Limitations ofLegal Practice Courses (unpublished paper, Sydney
1983). See also, Glenn, Professional Structures and Professional Ethics, 35 McGill L.J. 424
(1990).
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only be overcome through an intellectual project capable of commanding respect
on its own pedagogic and scholarly merits. In the end, for whatever reason,
Professor Nygh chose to give up the struggle to assert professorial leadership. The
task of defining the civil identity of the School of Law fell into other hands.
However, Professor Nygh’s Professorial colleagues and like-minded successors
likewise failed to generate a binding sense of institutional direction and purpose
within the School of Law.
It was the refusal of the University to recognize the intellectual and moral
collapse of the patrician model of civility in the Law School and the continued
adherence to the increasingly hollow forms of Professorial authority that corrupted
the governance of the Law School and threatened to paralyze its capacity to conceive
and execute its own distinctive practice of critical and committed legal scholarship
and teaching.
The fact is that those members of the School of Law drawn to a critical model
of legal scholarship have received little or no guidance by way of leadership or
example from the Professoriate in the practical tasks of teaching, developing
courses, and scholarly research. As a practical matter, neither the Professoriate nor
the Supreme Court showed much apparent interest in our academic projects. At the
same time, the classical model of civility, lacking formal institutional recognition,
was never able to generate a binding corporate ethos within the academic life of the
School of Law. Although it, too, was unable to seize the academic and intellectual
initiative so as to resolve the crisis of authority within the School of Law on its own
terms, the Professoriate within and without the School remained firmly in control
of the formal levers of institutional power and informal influence within the
University. The Professoriate within the School of Law did not receive the spon­
taneous deference and the collegial respect that they might be entitled to expect as
a matter of course within other law schools. On the other hand, the only available
alternative principle of civility was unable to enforce its own normative require­
ments.
That crisis of authority and purpose within the Law School could have been
resolved by recognizing the School as a quasi-corporate entity capable of governing
its own academic affairs. Once formally charged with that responsibility members
of the School of Law would, of necessity, be required to generate mutually binding
norms of civility consistent with their own developing sense of institutional purpose.
One modest step in that direction would be the formal recognition of the Law
School’s right to a substantial role in all processes leading to the appointment of
staff to the School.
The Need fora Classical Modem of Academic Civility
he only real alternative was to enforce the norms of a patrician model of
civility even as its substantive foundation withered away. Individual mem­
bers of the School were left to compete against each other for the recognition
T
:
;
i
<
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TURBULENCE IN THE LAW SCHOOL
51
favours bestowed by a Professorial oligarchy largely insensitive to, and demonstrab­
ly uninterested in, contributing, on the basis of equality and mutual respect, to the
creation of a critical alternative to established models of legal education. The result
of such Professorial indifference can only be to corrupt, weaken and finally destroy
that critical impulse. The School must be permitted to develop and apply its own
standards of civility, scholarship and teaching. To be binding and effective, that
corporate ethos must be given due weight and recognition in the process leading to
appointments, tenure and promotion through the direct involvement of all members
of the School in such decisions. So long as the Professoriate retained its effective
monopoly of power and influence over such matters, members of the School of Law
could never hope to understand themselves as members of a self-governing com­
munity bound, as a condition of their common enterprise, to respect the norms of
tolerance and mutual respect. Formal rank and academic recognition still continue
to depend in large measure, not upon our capacity to command the respect and
deference of our colleagues, but upon our willingness or ability to satisfy the
demands of a powerful few who have never been required, nor are perhaps even
able, to earn our respect and deference. The sad fact is that the hierarchy of academic
rank within the School has never been widely regarded as corresponding to any
perceptible hierarchy of intellectual capacity or academic excellence. That fact,
alone, has generated a good deal of cynicism and despair among some members of
the School who, at times, have all but given up hope that the classical academic
traditions of collegial decision-making could ever be successfully invoked in
opposition to the increasingly illegitimate but nonetheless powerful patrician norms
of civility widespread throughout the rest of the University.
One symptom of the growing loss of faith in our common enterprise is the
suggestion made by one submission to the Law School’s Review Committee that
sufficient resources be made available to expand the range of options at the
undergraduate level and perhaps even to develop graduate degree programs and
diploma courses. That proliferation of courses and degrees, already a distinguishing
feature of the U.N.S.W. Law School curriculum, would simply formalize our
incapacity to institutionalize a shared and binding telos carrying with it a distinctive
mode of civil interaction. Each of us would then be able to carve out his or her own
private niche within a social structure of academic rank and preferment forever
beyond our control or influence. What we need is not so much more courses or
programs but the same or a common core of courses taught differently (i.e. reflecting
the developing legal philosophy and pedagogic practice of the individual teachers
gathered in a joint enterprise). In both our internal and external teaching programs
what we need, above all else, is not more in the way of material resources (though
they might be very useful indeed). We require instead a clearer sense, among both
students and staff, of the common ends to which those resources should be devoted.
Neither the Professoriate nor the Supreme Court has been able to provide us with
that sense of corporate identity and institutional purpose in the past. Nor do they
seem likely to do so in the future.
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Conclusion
ny attempt to understand the crisis of authority which has existed at Macquarie
since the inception of the Law School must be based on a recognition of its
structural, cultural and intellectual roots. Whilst some of these are peculi
Macquarie, other law schools in Australia will be affected in similar ways if and
when any moves are made to change curricula or teaching method away from the
stultifying and staid practices of the past. Patrician elites at other law schools may
resist bitterly any attempts to alter the status quo yet this very resistance to change
may heighten the sense of common purpose among those committed to the distinc­
tive academic mission of the University law school.
A
What is required at Macquarie is a new approach towards the academic gover­
nance of the School of Law. What the School of Law needs, in short, is a distinctive
sense of civility grounded in the long-established academic traditions of collegial
decision-making. What the University must recognize is not only the legitimacy of
the critical legal studies group, but more broadly, the need to ground academic
authority within the School of Law in the principle and practice of collegial
decision-making in all matters of common and academic concern. It is difficult to
see how the continued rejection of that principle can possibly serve the long-term
interests of the School of Law, the University, the legal profession or of the wider
community.
Certainly, the existing forms of academic governance within the University,
influenced as they are by the patrician ideal of civility, tend to place a premium upon
forms of academic work which exhibit a kind of polite deference to standards of
academic excellence formulated and applied by one’s Professorial superiors. Blind
adherence to the forms of Professorial authority in an institution setting which has
been drained of intellectual and academic substance is a sure-fire recipe for the
creation of a dreary and vulgarized public service mentality among academic
employees. Already a sizeable proportion prefer to deal privately, behind closed
doors, with their Professorial patrons. So long as rank and recognition within the
School of Law remain dependent upon Professorial patronage, our capacity to
develop either a coherent and binding standard of excellence in legal scholarship
and teaching, or the norms of civil interaction which would flow from such a
standard, must remain effectively crippled. Bereft of the sense of shared civic
identity which might emerge from the practice of collegial decision-making,
academic employees must inevitably come to be regarded, both by themselves and
by their Professorial superiors, as mere functionaries executing a Professorial
mandate emanating from on high. Whether that mandate is legitimate, coherent, or
even practicable, will have ceased to matter - to anyone.