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Horrigan, B --- "Applied Jurisprudence in the High Court, Legal Education and Legal Practice" [2004] LegEdDig 52; (2004) 13(2) Legal Education Digest 5

Applied Jurisprudence in the High Court, Legal Education and Legal Practice

B Horrigan

[2004] LegEdDig 52; (2004) 13(2) Legal Education Digest 5

Centre for Commercial Law, University of Canberra, Research Paper, July 2000

http://www.blis.canberra.edu.au/ncclpr/research/researchpapers.htm

University and corporate education and scholarship are undergoing transformational changes. Those changes require a reconceptualisation of academic work and professional practice in the 21st century. Like the rest of Australian university academia and management, legal academics are caught between the nightmare and the noble dream of a future fundamentally altered by internationalisation of knowledge, changes in education technology, decreases in government funding for universities, consumerised education, and shifts in the nature of both academic and professional work.

At the same time, public and academic criticism of education policies which view universities predominantly through the lens of economic and market forces and academics, students and other ‘users’ of education ‘services’ through the lens of ‘client-focused’ servicing increasingly exposes the limitations of such a one-dimensional focus in thinking. Everywhere there are signs that the traditional notion of academic specialisation within a discrete area of specialisation is giving way to renewed emphasis on knowledge connections within and between disciplines as well as strategic alliances between users of knowledge.

Orthodox legal education focuses on legal education and skills for careers in the legal profession. What constitutes ‘the legal profession’ and ‘legal careers’ are changing over time. Collectively, they embrace solicitors, barristers, corporate counsel, accountants, managers, policy advisers, government lawyers, and others. Similarly, the primary focus upon legal knowledge and legal skills is now being complemented by renewed attention to a wide range of knowledge and skills which are not always wholly law-based. This includes attention not only to multidisciplinary and international perspectives, but also new ways of integrating ‘theory’ and ‘practice’ and developing skills of critical thinking, as well as other career oriented skills through various means in legal education.

At the same time, changing conceptions of academic work are clearly in play. The traditional distinction between ‘teaching’ and ‘research’ is giving way to conceptions of academic work which include other activities, like community service, management, and revenue-raising both within and outside the traditional conceptions of ‘teaching’ and ‘research’ as areas of academic work.

Multi-dimensional changes at the student level are in play. Those changes relate to student demographics and expectations, graduate career destinations, employer expectations, and renewed attention to development of legal skills from both pedagogical and professional perspectives. Those changes are complemented by changes in the ‘client’ base of academics to include not only students but also professionals and others in the public and private sector with a need for life-long knowledge, education, and skills, particularly as revenue-raising from grants and external sources is added to the new notion of academic work and individual workloads.

This conceptual framework visualises an individual student’s or academic’s approach to legal education generally or a particular legal topic as a product of a number of different forces — ideology, pedagogy, discipline, skills, content, and professional destination. It suggests that we need to withdraw from any approach to legal education which views it as largely comprised of value-neutral knowledge which is transmitted to students and other ‘clients’ in a value-neutral way.

The unsatisfactory nature of the simple dichotomy between ‘theory’ and ‘practice’ might be exposed in a number of ways. Firstly, it might be examined through the prism of legal education and exposed for being an oversimplification of what in reality are different and continuous forms of research and scholarship and their application. Secondly, it might be viewed through the prism of levels of theorising in legal problem solving. Making an informed choice about approaches to theorising in law requires an understanding of the different levels of conceptual analysis which are possible in legal and policy analysis. The levels of legal theoretical analysis outlined above can also be examined in terms of levels of analysis in legal problem-solving.

The traditional dichotomy between ‘theory’ and ‘practice’ too often in Australian legal education and professional and corporate practice enables the marginalisation of ‘theory’ as something which is not essential to ‘real’ law and ‘real-world’ practice. The reality is much deeper and more complex. The destruction of that overly simplistic dichotomy is essential for a full understanding of what academics and graduate employers alike mean when they say that they want to develop or employ graduates who have the complete range of skills of a ‘fully skilled’ lawyer. Integrating these multi-dimensional levels of theorising and problem solving is absolutely crucial if legal philosophers are to make more headway in convincing judges, lawyers, students, politicians, and others of the importance of this kind of thinking in relation to so-called ‘real law’ and ‘the real world’.

In terms of applied jurisprudence and court-watching, the lessons of levels of theorising are multi-dimensional. Firstly, the High Court justices often invoke theory and theorists for rhetorical purposes without full analysis of their multidimensional uses and the arguments which such instrumental use might provoke. Secondly, the identification and arguing of principles, values, and policies in dispute areas of law ranging from public liability to economic loss often assumes much which is now doubtful about liberal orthodoxy and pluralism and their prevalence in the community. Thirdly, the jurisprudential anomalies which inevitably develop in the wake of decisions by a court whose members are engaged primarily in bringing their collective intellectual and practical experience to bear on the business of day-to-day and case-by-case judging deserve wider identification and debate.

How do we integrate all of this into legal education and training centred on problem solving strategies? Firstly, most conventional legal problem-solving strategies either assume a liberal or ‘black letter law’ framework or are at least used by teachers and students in that way. Secondly, a curious dichotomy has emerged in some quarters between problem solving for litigant-based purposes and problem solving for society-based purposes.

Good legal education embraces multi-dimensional perspectives on law, policy and values, and their impact. Much can be done to reconnect jurisprudence to ‘mainstream’ law and practice. Academics and students alike can be introduced to landmark expositions of the need for theoretical perspectives in all aspects of legal education, including ‘black letter law’ education and training. Even in the blackest of ‘black letter law’ subjects, students can be introduced to material which relates theoretical and critical perspectives to their current area of study. Class exercises and assessment items can be structured in ways which incorporate different legal approaches and levels of analysis which range across substantive law and practice, policy analysis, scrutiny of legislation, law reform, inter-disciplinary connections, and theoretical critique.

The integration of jurisprudential insights within university legal education is a two-way street and works best when those subjects with a primary jurisprudential emphasis make meaningful connections with real-life illustrations from particular areas of law or the real world of practising law, and when substantive units include within their content appropriate references and illustrations on a jurisprudential level. It needs to be introduced in an appropriate way right from the outset, because that is when student understanding of legal analysis and problem-solving is structured and developed. It also needs to be reinforced in a secondary way within all other law subjects to some degree and in appropriate ways, depending upon the nature of the subject and the willingness and expertise of those teaching it.

All of this is critical in helping students to examine the same topic from these different angles or levels of analysis on the notional spectrum between ‘theory’ and ‘practice’ in law: (1) the legal level; (2) the policy-making and incremental reform level; (3) the scrutiny of legislation level; (4) the critique or jurisprudential level; (5) the constitutional level; (6) the tactical/practical/operational level; and (7) the comparative/international level. At the same time, all of these activities are complemented by a range of online resources and interactive media for students engaged in legal research, legal reasoning, and problem solving at all levels, including use of email discussion forums, live chat rooms, relevant quality-controlled and annotated Internet links, electronic study material, student download and upload facilities, and an electronic research training program weekly in seminars.

Where do we go from here? Firstly, abstract jurisprudence must reconnect with applied jurisprudence in better ways. Secondly, while the battle for jurisprudence’s importance has been won in some enlightened Australian law schools and law courses at a school-wide and curriculum-wide level, embedding it within legal education and practice more generally still has a long way to go. Thirdly, the two-way connection between jurisprudence and substantive law needs better integration to appropriate degrees and in appropriate ways within all law subjects in all law courses.

Legal philosophy must be related to topical and relevant legal areas and controversies in jurisprudential subjects, just as jurisprudential issues deserve illumination and treatment as they arise in cases, legislation, and issues considered in non-jurisprudential subjects. Of course, an even greater challenge is to make abstract and applied jurisprudence relevant for inter-disciplinary education, legal and professional practice, governmental policy analysis and law reform, and public debate and community activism. That challenge confronts students, academics and lawyers, as well as judges, politicians and others engaged in public debate about law and policy.


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