Keyes, Mary; Johnstone, Richard --- "Legal Academics: Culture and Identities by Fiona Cownie" [2005] SydLawRw 18; (2005) 27(2) Sydney Law Review 371

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LEGAL ACADEMICS: CULTURE AND IDENTITIES by Fiona Cownie, Oxford, Hart Publishing, 2004, 206 pp, ISBN 1–84116–061–3

Fiona Cownie’s purposes in undertaking this study of the ‘lived experience’ of English legal academics were first to enrich an understanding of the ‘culture’ (beliefs, values and customs) of academic law and legal education, and second to contribute to an understanding of the professional identities (that is, ‘who they are’) of legal academics.

She interviewed 54 full time academics, of different levels of status and experience at both ‘old’ and ‘new’ universities (33 from the former and 21 from the latter), in cities of various sizes (pp17–19).

This book is unquestionably an important contribution to the literature on legal education. As Cownie notes, it is striking that in an environment focused upon intellectual inquiry, there is very little research about those who inhabit that environment, and how they constitute and relate to their environment (pp1–4). Many of her findings are interesting (including a fascinating discussion of academic dress culture and codes (pp186–196), some perhaps not one would have predicted (for example, that half of the academics she interviewed incorporate feminist materials, and used a feminist approach, in their teaching: pp61 and 198), and others are alarming (for example, that ‘almost all the respondents were clear that being an intellectual is not a necessary quality to be a successful academic lawyer’: p70 — although most interviewees recognised the best research in law was carried out by peers who were intellectuals).

Cownie’s main findings include that law is becoming increasingly ‘academic’ in the sense of being more integrated into the academy and affected by intellectual currents sweeping through the academy, rather than being so concerned with the legal profession that it lacks a substantial academic character (pp75–78). According to Cownie, this is reflected in the status given to research as more important and fulfilling than teaching or administration — a finding which concerned us somewhat for what it indicated about the conception of legal education in England (as to which, more later). Nevertheless, in their teaching, law academics do not regard their role as preparing students for legal practice; rather their aim in teaching was to ‘teach students to think.’ She also suggests that English legal academics are becoming substantially less focused on black letter doctrinal analysis of the law: law is a ‘discipline in transition’ — away from ‘traditional doctrinal analysis towards a more contextual, interdisciplinary approach’ (p197). But while the legal academy is increasingly socio-legal, Cownie observes that ‘law is not yet strongly interdisciplinary’ (p198), because few law academics worked with experts in other disciplines, and tended to use research from other disciplines without significant involvement in those disciplines. Interestingly, law academics were also found to have little contact with the legal profession.

Even though the scope of this study is limited to English academics, there is much in the book which will be of interest to many Australian legal academics. While Cownie claims that her study reflects a culturally-specific experience which is limited to England (p25), many of her findings resonated with our own experiences, and we suspect that other Australian legal academics will have similar reactions to the book. One example is the way in which ‘administration’ is perceived by English legal academics as ‘a necessary evil, whose burdens are unevenly distributed among academic staff, because some people are very good at getting out of it’ (p202). We note, in passing, that, as seems to be the practice in Australian universities, leadership and management roles are referred to pejoratively as ‘administration’, about which Cownie seems almost as negative as many of her subjects. Incidentally, for those who are interested in getting out of ‘administrative tasks’ but who lack effective strategies for doing so, this book provides a list (pp144–146) that has been road-tested by (mainly male) English law academics.

Cownie observes that law academics joined the academy because they wanted to be part of academia, were proud to be academics, and placed considerable importance on core academic values. What they most valued about academic life was the freedom to organise their working lives — yet most also confessed to feeling the strain of working in a system changing rapidly in the face of the ‘massification’, ‘managerialism’ and ‘corporatism’ sweeping across the higher education sector.

Of immediate interest to Australian law academics will be Cownie’s analysis of the effects of the Research Assessment Exercise (RAE) on the academic culture, so that research-active law academics are publishing fewer textbooks, and more refereed articles and scholarly monographs. Yet Cownie reports that few law academics viewed the RAE favourably: most doubted the credibility of the exercise, and suggested that the RAE has resulted in the publication of more poor quality research. At the same time, Cownie suggests that the RAE has increased the value of research in the academy (p202), and has increased the rate at which the discipline of law has moved ‘away from the legal profession ... towards the centre of the academy’ (p201).

The book also discusses gender, race, class and sexuality in the construction of academic identities, and their impact on the culture of academic law (see particularly ch 8) — although the size of Cownie’s sample precluded much by way of empirical data on issues of race and sexuality. Half of the academics interviewed said that their class background influenced their research interests or their desire to be involved in education. The interviews provided further evidence of the discomfort of women with many aspects of the legal academy, and the relatively high level of awareness of the way in which women’s experience of working in universities differs from men’s.

Although Legal Academics is an interesting and entertaining read, we have three main concerns with it. The first is perhaps the most serious, given the nature of the study. The book provides much descriptive material, particularly in frequent and extensive quotes from Cownie’s interviews with academics. Much of this is of undoubted prurient interest to an academic reader. But, although the opening chapter of the book promises much in its rich outline of the themes of the book, from the second chapter onwards the painstaking detail in the description of the ‘lived experience of academics’ was not matched by the level of critical analysis of that experience. The material these interviews generated would have permitted, indeed should have warranted, a close, theoretically grounded and insightful analysis of the nature of legal academic life. The low level of theoretical analysis suggests that this book will probably be of greatest interest to those who can relate directly to what it describes — undermining its likely policy impact and transnational interest.

Second, in our opinion Cownie overstates the infiltration of socio-legal studies in legal academia and in legal education. While she observes that that engagement is often rather limited (for example, pp56–57), her definition of socio-legal studies is a very broad one (see pp50–51, 57–58 and 63–65). Whenever an academic described an approach to teaching, or some aspect of legal research, as other than purely black letter, Cownie categorises this approach as socio-legal, even though often what is claimed as socio-legal does not fall within the definitions of that term to which she refers at page 51 of the book (see eg, pp63–5). Consequently, her evaluation of the extent to which legal academics are engaged in socio-legal approaches both to research and education seems to us unrealistic and overly generous.

Third, while Cownie reports that teaching was important to the academics she interviewed, that they gained genuine satisfaction from helping students to learn, and that being a ‘good teacher’ was an important part of their identify (pp121–132 and 201–202), the book highlights, and seems uncritically to endorse, an impoverished conception of legal education, which reports an equation between engaging ‘performance’ by a teacher and good teaching, particularly in the context of lecturing (pp123, 124 and p202). Cownie uncritically reports that her subjects unanimously agreed that lecturing could be characterised as performance (p124), and that only ‘a small minority’ thought there were dangers in ‘getting too carried away with the idea of performance, at the expense of content’ (p126). This, to us, appears to ignore the clear trajectory of research on student learning and its consequences for law teaching,[1] certainly flies in the face of what we do know about good teaching,[2] and appears to be inconsistent with Cownie’s own previous work on the ‘scholarship of teaching’.[3]

Cownie’s observation of the increasing academic orientation of law enables her to conclude the book (p205) optimistically, albeit controversially:

The data I have gathered about legal academics suggests they have strong attachments to core parts of their academic identity, which are focused on their discipline — on researching and teaching law as part of an independent community of scholars which is still concerned with “speaking the truth to power”. These strong attachments make it much more likely that they will be able to resist, or undermine, policy changes which threaten these core values.

While there might be scepticism about some of Cownie’s observations and the conclusions drawn from her data, which might suggest that this level of optimism is misplaced, this conclusion is an admirable rallying cry for Australian academics faced with structural change and pressures mirroring those confronting Cownie’s interviewees in this interesting and important book.

MARY KEYES† & RICHARD JOHNSTONE*

† Senior Lecturer in Law, Griffith University

* Professor and Director, Socio-Legal Research Centre, Griffith University

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[1] See Michael Hunter Schwartz, ‘Teaching Law by Design: How Learning Theory and Instructional Design Can Inform and Reform Law Teaching’ (2001) 38 San Diego LR 347 at 365–383 and Marlene Le Brun & Richard Johnstone, The Quiet (R)evolution: Improving Student Learning in Law (1994) ch 2.

[2] See Paul Ramsden, Learning to Teach in Higher Education (2nd ed, 2003), ch 6.

[3] Fiona Cownie, ‘Searching for Theory in Teaching Law’ in Fiona Cownie (ed), The Law School — Global Issues, Local Questions (1999)