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Legal Education Digest

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Thornton, M --- "The Idea of the University and the Contemporary Legal Academy" [2005] LegEdDig 26; (2005) 13(4) Legal Education Digest 14

The Idea of the University and the Contemporary Legal Academy

M Thornton

[2005] LegEdDig 26; (2005) 13(4) Legal Education Digest 14

26 Sydney L Rev 4, 2004, pp 481–502

The university is not only a primary site of the production of new knowledge, but also of new knowledge workers. Accordingly, it is expected to play a key role in the process of transforming society and ensuring acceptance of the discourse of the market. The law discipline is central to this process of transformation, as it is expected to train ever-increasing numbers of legal technocrats to serve the new knowledge economy.

Comporting with the neo-liberal imperative to privatise public goods and promote competition, a university degree itself has become a commodity like any other to be sold within the contemporary marketised environment. Law carries with it the added attractions of prestige, high student entry scores and relatively cheap provider costs, based on one of the highest student-staff ratios of any discipline.

Generally speaking, universities are responding to the new knowledge challenge with alacrity. The eagerness of universities to become market players is largely attributable to the funding crisis besetting Australian higher education. The commodification of education tends to deflect attention away from the academic substance of what is taught. The pedagogical practices now in vogue operate to legitimise the technocratic approach to the curriculum and the evisceration of a critical space that comports with the market message.

The ultimate in efficient delivery, euphemistically dubbed ‘flexible learning’, entails replacing lecturers with computers. Furthermore, while ticking a box or pressing a computer button in response to a multiple-choice question can provide the ‘right’ answers, the technology tends to glide over multifaceted and conflictual ethical problems.

The way that law is now taught in many institutions indirectly favours a depoliticised pedagogy. In the past, the passivity of the lecture hall was moderated by tutorials or seminars designed to foster interaction, questioning and debate, but as a cost-saving mechanism, tutorials may now be offered intermittently or abolished altogether, although some institutions have moved to on-line ‘chat rooms’ in lieu. Furthermore, it would appear that the majority of law students actually prefer lectures, because they assume that the knowledge they are receiving from a lecturer is more likely to be authoritative and examinable than the tentative opinions of their peers in discussion groups. This pressure from student-customers for the packaged delivery of finite knowledge also encourages the reversion to a positivistic approach with its assumption of ‘right’ answers.

Assessment has also changed to accommodate the vastly increased numbers of students. Reflective essays that foster research and critical engagement with troubling issues are no longer feasible; even the most dedicated academics have difficulty managing the marking loads.

The idea of a liberal legal education demands interrogation of the knowledge purveyed, which necessarily involves far more than a set of technocratic rules. Scholarly activities are of value only if they can be linked to a quantifiable output. Hence, academics are required to establish their productivity through regular auditing of performance. Productivity is directed to the quantity, rather than the quality, of what is published. Provided that the articles appear in ‘refereed’ journals, one need inquire no further. Most notably, however, the primary focus of research is not on ‘outputs’ — the books and articles published — at all, but on ‘inputs’ — the grant income generated in order to conduct the research. Within this skewed academic universe, applied research with direct market value is favoured.

The central role of the university in safeguarding and transmitting a society’s culture is now passé. Today, a functional role of an altogether different kind has been assigned to universities, that is, to serve the state through the market. Thus, it can be seen that the traditional idea of the university in no way comports with the contemporary Australian law school in terms of either freedom of teaching, unity of research and teaching or academic self-governance.

Universities have been forced to commodify their educational ‘products’, compete within a limited domestic market and make forays into the international market, all filled with traps for the unwary. Not only are there vast linguistic and cultural barriers in respect of offshore markets, there is something repugnant about a 21st century form of neo-colonialism in which we are going to teach them law — with all its Anglo-Australian biases, because a positivistic legal education seldom equips graduates to do anything else.

The absence of reflective space ensures that academics focus single-mindedly on promotion of the self in order to succeed within a competitive legal labour market. Simultaneously, we also become complicit in promoting and maintaining the market culture. Professional and vocational imperatives inevitably constrain the notion of freedom within the law school. While this conceptualisation of the idea of the university may be uncontentious in theory, a look at university law schools around the country underscores the fear that the ideal is being sacrificed to the rhetoric of the market and individual good. This is not to deny the existence of pockets of resistance, where committed individuals are doing their best to continue to imbue their students with a sense of the idealism associated with a liberal legal education. There is no simple blueprint as to how to avert what seems to be an unstoppable market juggernaut bearing down on an already beleaguered legal academy. However, if the university is in ruins and we inhabit those ruins, we have an obligation to do what we can.

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