Legal Education Digest
G Morris and K Lewis
Legal Education Review, 20, No.1& 2, 2010, pp 193–222
The reasons for attending law school found in student surveys are often grouped into three categories: ‘career reasons, intellectual reasons, and social justice reasons’. As Debra Schleef observes, these three groupings fail to include other possibilities such as ‘ambivalence, default, parental influence, or class maintenance’. New Zealand fictional literature and visual media portray all of the above motives for attending law school. Motives can be analysed under the following headings: parental influence, Maori law students working to achieve justice through Pakeha (white) law, altruism, the high status of the law degree, and an intellectual interest in law.
Parental occupation and influence have the ability to profoundly shape a child’s educational choices. According to Schleef there are two obvious ways that parents can stress to their children the importance of a professional career: ‘either by unconscious occupational example or through conscious statement’. New Zealand literature focuses on both. Having a parent as a lawyer can mean a character never really questions why they are studying law; rather, it is an expectation that has always existed.
Having valuable family contacts in the legal profession creates security for a successful career. Therefore, law students’ decisions to follow in their parents’ footsteps seem to be more representative of the need to have a successful professional career with a secure salary rather than an inherent interest in studying law. A family legal background can also guarantee a student insider status. Yet, in both Shadbolt’s ‘The Voyagers’ and Judy Corbalis’ Mortmain, it is implied that the insider characters suffer a certain loss of autonomy as a result of familial pressure.
Unique to New Zealand is the significance of Maori attending law school in order to achieve justice for their people: iwi, hapu and whanau. A recurring theme in New Zealand legal fiction is Maori law students’ quest to gain that justice by utilising Pakeha law. In this quest, a law degree is seen as a means to an end. Whanau II by Witi Ihimaera encapsulates the main motivation of a Maori law student; ‘the idea of making it in the legal profession in the Pakeha world drove him forward’. Maori law students are often portrayed in fiction as outsiders in a white world. The only way to break into this world is to learn the Pakeha way.
This idea of knowing a legal system primarily in order to challenge it brings to mind the concepts of retribution and redress. These ideas are portrayed poignantly in The Waimate Conspiracy where a recently graduated female Maori lawyer, Zena, is the ‘brown hope’ for her whanau (extended family) in claiming back their land. Likewise a young female Maori student, Kohimarama, in He Tangi Aroha is learning law because ‘our culture, our language, our land, has been and is being lost. If you study government laws it’s very easy to see how it was and is done’.
In Outrageous Fortune, Jethro West, from a criminal family in West Auckland, purports to use his law degree for worthy purposes. He takes over Corky’s law practice because he ‘want[s] to work for the real people, people like us’. A parallel can be drawn between Jethro’s desire to use his law degree to help ‘his people’ and the motives discussed earlier vis-à-vis Maori students. An altruistic approach to legal education often goes hand-in-hand with outsider status. The empathy gained from experiencing alienation can be harnessed to help others who are suffering hardship and in need of advocacy and advice.
A law degree is viewed as a solid educational option, paving the way for a secure career. The narrator in ‘The Voyagers’ emphasises this security.
‘Quite a future you’ve got already’, he observed. ‘All tied up. Neat, safe, secure’. ‘Well, yes’ I said. ‘Security’s a big thing, you know. Half the battle, as they say’.
According to the 2004 Victoria University survey, interest in the subject and
the intellectual stimulation of a law degree were two
of the primary motivations
for students to study law.
But Cam liked studying law ... She read case after case, family law, criminal, employment and contract law and liked the way the muddle of everyday life could be shaped so finely by it. It had an elegant structure, a logic that could untangle the rawness of thinking, motive, behaviour or impulse, uncover the essential elements, the points of law or precedence, and polish them until they shone clear. She enjoyed it and she was good at it.
New Zealand authors also portray the uncertainty and ambivalence that students feel when deciding whether law school is right for them. Thus, a law degree can become more of a default option – although an option providing an apparently glamorous lifestyle and reliable educational outcome. Dan, in ‘My Real Life’ by Julian Novitz, Frank in Naomi by Wendy Simons, Megan in ‘Malone’ by Forbes Williams, and Emma in Scarfies all express uncertainty as to why they are attending law school.
New Zealand writers address two ways in which law students lack any clear motive for being at law school. Firstly, students may enter law school with valid reasons but lose sight of these reasons and become disillusioned with law during their degree. Frank in Naomi expresses that he is ‘tired of being a student ... sick of law. Lost interest in it.’ Secondly, students may have never thought carefully about why they are studying law. Emma, a law student at Otago University in Scarfies, states that she has no desire to become a lawyer and when asked why she is studying law she replies, ‘dunno’. These examples definitely challenge the assumption that all law students consciously decide to study law. It could suggest that a more generalist approach in legal education is more appropriate.
In analysing literary and visual media references, it is apparent that New Zealand authors portray a realistic representation of legal pedagogy in New Zealand and that they portray it in a powerful fashion – powerful enough to shape popular perceptions. Of particular interest is the role the Socratic Method plays.
The Socratic Method continues to be used in contemporary legal education. Rosato defines the method as ‘education by interrogation’. Similarly, Kennedy claims that the Socratic Method is an ‘assault’ on students who experience humiliation when unable to answer a question, often leading to the dehumanisation and mystification of the law. The Socratic Method exaggerates the unequal relationship between teacher and student, as the teacher is seen in a position of obvious power and authority.
New Zealand legal fiction provides valuable insights into the New Zealand version of the Socratic Method. Victoria Law School is the only New Zealand law school that consistently uses this teaching approach. New Zealand’s Socratic Method is less abrasive than that seen in American representations which are usually set at the home of Socratic teaching, Harvard Law School.
The relationship between lecturer and student is obviously central to the process of legal education. This relationship is portrayed by New Zealand writers as inherently unequal with a substantial power differential. Kennedy asserts that this type of relationship has the potential to be either ‘fruitful and satisfying or degrading or both at once’.
New Zealand writers of fiction portray assessment in law schools as arbitrary, having the effect of instilling self-doubt in students. This inability of students to fully understand how to succeed in law is exemplified by Brett Healey in The Miserables. Healey comes to the realisation that when writing legal assignments ‘it seemed to make no difference as to the quality of the prose in which these words were discovered’. This frustration with assessment transcends jurisdictions as Kevin Brooks in The Paper Chase struggles with law and does not achieve good grades despite his diligence and excellent memory recall. These two examples suggest that many students believe law assessment merely reflects some inherent ability and that the quest to have control over their grades is futile.
The effects of the legal education process on students can lead to a ‘hostile, pressured social and educational environment that is destructive to the individual student ... they become competitive, hostile and aggressive’. MacNeil argues that law school not only trains for hierarchy but also for hysteria. Similarly, Ted Thurston in ‘No Escape’ shows that this ‘hysteria’ can take the form of jealousy, indicating the lengths law students will go to get ahead of their peers. The following extract demonstrates the jealousy law students can have towards students who are more successful.
All my hopes and aspirations lay in that scholarship, and when Roderick Temple came out a good 10 per cent better than I the whole world seemed to come crashing about my head. I think it was the thought, too, that Temple would have access to all the things I loved so well.
As law school is generally portrayed as an elite, inaccessible institution reserved for those with the right backgrounds, the experience of the outsider should be uniformly negative but, as the fictional texts illustrate, things are not so straightforward. A student could be classed as an outsider due to race: Tamatea Mahana in The Dream Swimmer, Fern in Grace is Gone by Kelly Ana Morey, Kohimarama in He Tangi Aroha by Apirana Taylor, Mark ‘Boogie’ Heke in What Becomes of the Broken Hearted? and Kingi in Shortland Street; economic background: Julien in Julien Ware by Guthrie Wilson, Jethro West in Outrageous Fortune, Ted Thurston in ‘No Escape’ by Mary Davidson, Cam O’Connell in A Red Silk Sea by Gillian Ranstead and Helen Murphy in Miramar Mornings by Denis Edwards; or gender: Genevieve Pencarrow in the Pencarrow saga.
Since the 1970s, there has been a huge increase in the number of students from traditional outsider groups attending New Zealand law schools. Female student numbers increased from approximately 5 per cent in the early 1970s to approximately 60 per cent in the early 1990s. At Waikato Law School, approximately 24 per cent of students are Maori despite Maori constituting approximately 13 per cent of the New Zealand population. Students from lower socio-economic backgrounds have increasingly seen law as a viable option. Despite these inspiring statistics, law is still seen by many as an elitist profession dominated by affluent white men.
Following from the arguments put forth by feminist legal theory and critical race theory, it is clear that women and ethnic minorities have been treated as outsiders by the law, including legal education. While this experience will not be universal it is very common and provides a basis to argue that a dialectical approach which talks of outsiders and insiders is a useful one in analysing fictional representations of legal education.
Much of the angst experienced by outsiders is due to their treatment by insider students or by the academic teaching staff. Duncan Kennedy’s seminal work on legal education stresses the centrality of hierarchy in indoctrinating law students. This hierarchy is so much more intimidating for outsider students. Suddenly, the attributes that make them outsiders become very evident. As Kennedy argues:
In law school, students have to come to grips with implications of their social class and sex and race in a way that is different from (but not necessarily less important than) the experience of school. ... People change the way they dress and talk; they change their opinions and even their emotions.
Tamatea in The Dream Swimmer is a Maori studying law in the 1960s; in other words, a complete outsider. As well as contending with the Socratic Method and workload, Tamatea also faces institutional ethnocentrism:
It took guts to last even one day at university. Those were times when there were very few Maori students there. It was a White world, gate-kept and controlled by Pakeha. ... I felt angry, abused and isolated. Most of my peers had already been streamed away into middle- or lower-class occupations, automatically failed because of the colour of their skin. Those of us who succeeded did so not because we were privileged but because we were driven to do so.
Ihimaera’s descriptions of Tamatea’s experiences at Victoria Law School are mirrored to a large extent in Leah Whiu’s 1994 article, ‘A Maori Woman’s Experience of Feminist Legal Education in Aotearoa’ based on the author’s real-life experiences at Waikato Law School. Whiu states:
I remember protecting myself while two Maori women lectured about the effects of Pakeha law on Maori women. I remember blocking the white women out, disconnecting from them, fearing the disguised barbs of their conscious and unconscious racism, their colonialism.
The alienation experienced by Whiu highlights the Eurocentric dominance within New Zealand law schools and its ability to degrade outsiders.
There is even hope for the outsider, if he or she commits totally to the institution of law and its evitable hierarchy. Cam has accepted the narrow focus of legal education and, unlike her friend Laurie, accepts the sacrifices that must be made in the pursuit of a legal career:
‘You’re like a train on its track, Cam, you don’t look left, you don’t look right, you just keep going straight ahead. You miss so much that way.’ But Cam liked studying law. She had struggled at first, intimidated by the other students who had been at better schools and were better prepared. But the years she had spent watching and waiting and keeping one step ahead were another kind of preparation: she could move quickly, constructing arguments and tying them up while the others were still cautiously keeping to familiar paths.
Julien Ware also presents us with a paradox. He begins his bildungsroman journey as the ultimate outsider: the son of a poor farm worker in the remote central South Island. A private school education transforms Julien from an outsider into an insider and, by the time he attends Victoria Law School, he is (outwardly at least) indistinguishable from the other elite students.
Elite law students include Ted Castle in Mortmain by Judy Corbalis, Simon in The Fools on the Hill by Graeme Lay, Michael Pencarrow in Kelly Pencarrow by Nellie Scanlan, the narrator in ‘The Voyagers’ by Maurice Shadbolt, and Hugh in Outrageous Fortune. Megan in ‘Malone’ by Forbes Williams, Amy Smart in Go Girls, and Melanie Wyeth in Street Legal are female law students with all the advantages of a Ted Castle except automatic access to the ‘old boys’ network’. However, these elite females may not be as secure as they appear in the law school hierarchy. Carmel Rogers’ description of Victoria Law School in the 1990s provides a warning:
There are Dolly Parton women law students at Victoria. These are the Country Road, Beders and L’Esprit women who singe themselves into the system, confident that playing the game will win the match. Well sisters, unless you fancy being a well-manicured mannequin, you will not win the match. The system that you subscribe to will always insist on silencing you. It will enjoy seeing you, it will use you, then it will abuse you.
To be a law school insider requires the right demographic combination, the right family background, the right accent and the right attitude as seen in various American examples. In The Paper Chase, even the ambitious James Hart struggles for insider status when his Mid-West credentials are compared with the East Coast elite such as Thomas Anderson and Franklin Ford III.
More than any other factor it is the sense of entitlement that makes an insider. There is never any question that Edward-Wilson ‘Ted’ Castle of Castleton will follow his father into the family firm. Indeed, after studying law at Cambridge, he returns to New Zealand and quickly establishes a successful legal career.
The concept of the insider can be paradoxical. This complexity is neatly portrayed in New Zealand fiction in a way that is lacking in the corresponding research literature, which tends to portray clear-cut barriers. Two characters in the novels of Guthrie Wilson highlight this paradox. Firstly, working-class boy Julien Ware appears to be the archetypal law school insider due to the ‘polish’ he has received at his exclusive Christchurch boarding school. Victoria law student Paul Mundy exudes entitlement in Sweet White Wine. His friend, the outsider Simon, allows himself to be lectured by Paul on which university clubs to join, the importance of knowing the right people and the correct way to wear a tiepin. It turns out that Paul’s privileged background is greatly exaggerated but as he so clearly projects entitlement it hardly seems to matter.
While a few outsiders may be able to navigate their way through law school successfully, that success will ultimately depend on their success in transforming themselves into insiders. If a character can survive the rigours of the institution, they will often thrive in the legal profession, whether insider or outsider. The key is being able to survive the institution. As Healey explains in The Miserables:
The friend was now a lawyer, a profession whose training depended upon the forming in its aspirants’ minds of the image of themselves in the posture of ‘the lawyer’. Once this image was secure, the lawyer was admitted to the bar.
This raises the question addressed by Kennedy. If an outsider is to become an insider, what becomes of the ‘self’ of the outsider? It is quite possible that any transformation could be co-opted by the power elite for its own purposes. In Miramar Mornings, in a scene set in the early 1970s, the male partners cynically use tokenism to increase the profitability of their firm:
Her [Helen’s] picture was booked for a new brochure, replacing the expensive one that had arrived from the printer just last week. The firm went out and found a Maori man doing a law degree in Wellington and hired him. He was insurance in case this Treaty of Waitangi fuss turned sour. Helen was going into the office next to his, both clearly visible from the reception area. First impressions count! The partners had heard about a Samoan finishing a law degree in Hawaii. His parents were in Auckland and he wanted to join them. As soon as they’d seen his CV they’d hired him too.
Most of the fictional law students mentioned in this article struggle for a place in this hierarchy with differing levels of success. This success comes much easier for those who could be classed as insiders. The outsider who can adapt to the rigid and demanding requirements of legal education can succeed and go on to take their place in the profession, though with no guarantee of a successful long-term career. This fluidity is more marked in recent texts, reflecting an increasingly diverse student body and progressive profession. These observations are particularly useful for legal educators as they provide a compelling argument for a more inclusive educational experience.
Perhaps, when New Zealand authors of fiction begin writing about law schools that adapt to suit the diversity of the student body rather than writing only about students adapting to suit the narrow perspectives of law schools, we may be confident that in these reflections the very real problems raised by this article are finally being addressed.