Brendan Lim provides the second post in our book forum on Susan Bartie’s Free Hands and Minds: Pioneering Australian Legal Scholars. To see all posts please click here. Click through for posts by Katherine Biber and Heather Roberts, as well as Susan Bartie’s reply.

BY BRENDAN LIM

Susan Bartie’s Free Hands and Minds is a book to read at many levels. It is a fine work of biography, which brings to life from published writings, private papers and recollections of those who knew them three “pioneering legal scholars”, Peter Brett (1918–1975), Alice Erh-Soon Tay (1934–2004) and Geoffrey Sawer (1910–1996). It is also an illuminating history of law as a discipline of academic study, in which Brett, Tay and Sawer are not so much protagonists as archetypes, illustrating the complex and diverse ways in which communities of legal scholars are constructed through the efforts of individuals, who in differing respects and degrees come to command acceptance (or not) and exert influence (or not).

At yet another level, the book can be read as a probing exploration of the constitution of the Australian legal system itself. Practitioners tend to think about the constitution in terms of legal institutions: legislatures, courts, and administrative bodies endowed with distinctive legal powers and together required and authorised to carry into effect the legal system. The abstractions in which we think sometimes overshadow the fact that these institutions, their authority, and hence the legal system itself, do not actually exist outside of human minds. The institutions are populated by human actors. And, perhaps more importantly, their continuing legitimacy depends on the recognition given to them by other human actors. Legal institutions are sustained, and therefore the legal system itself is sustained, by the shared normative commitments and values of a legal community.

Constitutional law, broadly conceived, is about the working out of those shared commitments and values, which are first propagated and shaped, perhaps decisively in some respects, through legal education. Universities, like the better-recognised constitutional institutions, are also populated by human actors. They do not generally exercise legal powers within the system of law. But they do exercise power over the formation of the minds that constitute that system of law. It is not possible to understand the constitution of a legal system without knowing something of the constitution of the minds that sustain that system.

As Dr Bartie explains, the university law school as a significant locus of influence in this respect is a relatively recent phenomenon. Although Australia’s oldest law schools boast histories stretching back to the second half of the nineteenth century, it was not until the 1950s that “a new community of full-time legal academics … emerged, supplementing the handful of existing full-time teachers and replacing many of the practising lawyers who formerly taught at law schools on a part-time basis” (at 36). For the preceding century, university legal education was controlled by a professional elite of judges and barristers (at 20-25) and lacked the funding to emulate the independent American tradition (at 35).

The eventual emergence of a non-practising academic branch of the legal profession gave rise to a distinctive institutional capability with profound constitutional implications. The distinctive capability of a full-time, independent academy is that of being able to adopt what we might call the external point of view. As HLA Hart influentially articulated it in The Concept of Law, a legal system defines itself from the inside: the rules or shared normative commitments that constitute the legal system are identified by the fact of their effective acceptance by legal officials adopting a practical attitude of rule acceptance, or internal point of view. Only from an external point of view can one suspend the practical attitude of rule acceptance and think about law from, for example, sociological or ethical perspectives. John Salmond (an early antipodean legal scholar in Adelaide and Wellington, and later Solicitor-General and a judge in New Zealand) foreshadowed the distinction in his 1902 Jurisprudence: “historians of the constitution know its origin, but lawyers must accept it as self-existent. It is the law because it is the law, and for no other reason that it is possible for the law itself to take notice of” (at 111).

Judges and practitioners, even while moonlighting as law teachers, are professionally constrained to the internal point of view by the positions that they occupy. The constraints are in part ethical and cultural, but also mundanely practical, arising from the limited time and intellectual effort that busy practitioners can realistically devote to teaching, let alone scholarship. Full-time independent academics can readily adopt and pursue perspectives that are external to the legal system. Moreover, it is in adopting these perspectives that they are most likely to have an advantage over judges and practitioners, whose own advantage is first-hand experience of practical legal argument and decision-making. These are harder to understand well from outside of legal practice (it is a question of perspective, not innate ability).

The internal and external perspectives demarcate the boundary of a legal system. In this sense, law is an autonomous discipline, but its internal resources are not fixed or immutable. They are liable to be changed by the incorporation of outside perspectives, so that what counts as part of the autonomous system today is different from what counted in the past and is undoubtedly different from what will count in the future. As Sawer put it in Federation Under Strain: Australia 1972–1975 at 174: “the boundary between law and non-law is fluid; customs, moral rules and political principles become incorporated into the law in a wide variety of ways, by both judges and legislators”. Even Sir Owen Dixon, the quintessential judge whom Bartie perceives to have been the target of a “subversive liberal culture” forged in the early legal academy (at 276), well understood that “theoretical” (that is, external) justifications for legal authority, if “adopted by a system of law as part of its principles” (that is, rendered internal), will come to “possess the capacity of producing rules of law”: “The Statute of Westminster 1931” (1936) 10 Australian Law Journal (Supp) 96 at 96.

I have previously written about how the boundary of the legal system can be penetrated by, or expanded to encompass, facts, ideas and values that were previously regarded as external to the system. The extent to which this can occur legitimately depends on the shared normative commitments and values of the legal system. These are, as I said above, propagated and shaped in the first instance through legal education. The important point is this: if the transmission of legal knowledge and legal values is controlled by judges and practitioners, who are professionally disinclined to suspend the internal point of view, then the possibilities for penetrating or expanding the boundary of the legal system are likely to be fewer than they will be with the benefit of observation, analysis, and evaluation by independent legal scholars.

I do not mean to suggest that penetration or expansion of the boundary of the legal system is always a good thing. There will often be sound reasons to resist it. And even when there is a case for it, one must be careful to identify the legitimate procedures for carrying it out (legislation versus judicial decision, for example). I agree with Tay’s resistance to those who would supplant academic study of legal doctrine with “half-baked sociology, vociferous compassion, strident protest or the belief that the simple and direct evaluation of policy is an adequate substitute for knowing and understanding the structure and development, the problems and complexities of law and the legal tradition” (quoted at 180). If the external point of view is not still trained on the legal system, then one is no longer doing law (it may be socially valuable, but it is not law). That said, I see no downside, and only upside, in the legal community having the fullest opportunity to consider critical perspectives that emerge from the deep learning and long-term pursuit of ideas that are, or should be, the hallmarks of independent scholarship. The legitimacy of the legal system depends on it keeping faith with the community which it governs, and this requires influence to flow in both directions so that the system guides, but is also guided by, the community.

Legal scholars, following the path of academic freedom forged by pioneers like Brett, Tay and Sawer, occupy a privileged position at the boundary of the legal system.  They are not so much outsiders as gatekeepers. Dr Bartie’s careful expositions of the work of her three chosen scholars serve as vignettes of the possibilities. Brett’s contribution to the criminal law “encouraged students to engage with the moral dilemmas at the heart of law and to recognise that the common law presented choices rather than single authoritative solutions” (at 88). Tay infused her teaching with jurisprudence as Chief Justice James Allsop recalled, telling Dr Bartie that Tay “awakened him to the academic side of law and that it later encouraged him, as a judge faced with hard cases, to draw inspiration from the writings of great jurisprudential scholars” (at 177). Sawer, from the literally external point of view of ANU’s Research School of Social Sciences, sought “to introduce the uninitiated to new ways of thinking about law without condemning their existing beliefs” (at 231).

It does not, of course, necessarily follow that the privileged position of legal scholars will fulfil its promise. Bartie writes of legal scholars today “not perceiv[ing] that their activities could fundamentally alter the future of the discipline” and that organisational and financial pressures, including “external direction from some university managers and professional bodies” serve to “discourage [the] type of questioning” that builds the discipline and its relationship to the profession and society (at 277). That state of affairs, as recorded by Dr Bartie, is regrettable.

The practising profession will, perhaps inevitably, make claims upon law schools that would have them conform to its own purposes. And perhaps law schools, even today, will harbour some “fear of alienating the profession and damaging the reputation of the … academy” (at 230). But a proper appreciation of the nature of the legal system in which we practise should remind us that an independent scholarly community is consistent with and not opposed to the practising profession’s goals. The histories so compellingly told by Dr Bartie should also remind us that an independent scholarly community is a recent innovation in Australian law, and a potentially fragile one that ought not to be taken for granted.

Dr Bartie herself clearly does not take it for granted. Her book, on only one level about three pioneering legal scholars, is brimming with incisive reflections and provocations about the nature of universities, the role of legal scholarship, and its relationship with legal practice. It is a rewarding read for anyone with an interest in the idea of law as both a discipline and a practice. On a personal note, Dr Bartie was one of my law teachers at the University of Adelaide and it is a privilege to have the opportunity to re-engage with her work today, I hope in a spirit that is faithful to the commitments and values she imparted as a teacher.

Brendan Lim is a barrister at Eleven Wentworth Chambers and a Centre Fellow at the Gilbert + Tobin Centre of Public Law.

Suggested citation: Brendan Lim, ‘Book Forum on Susan Bartie’s Free Hands and Minds: Pioneering Australian Legal Scholars on AUSPUBLAW (3 February 2021) <https://auspublaw.org/2021/02/book-forum-brendan-lim/>