Heather Roberts provides the third 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 Brendan Lim, as well as Susan Bartie’s reply.

BY HEATHER ROBERTS

Susan Bartie’s book is an insightful and compelling work of legal history and intellectual biography, and one I have recommended widely. It helps that is beautifully written, logically structured and tackles largely untapped legal subjects. Its principal interest and value for readers lies, in my view, in three key features. First, in its interweaving of textual and narrative analysis, detailed archival interrogation, and interview material, Free Hands and Minds demonstrates the rich potential of mixed methods in legal research. Second, for the first time it presents a detailed analysis of three key intellects that together, from their different academic silos, helped to form a distinctively Australian academic legal identity. In doing so Bartie also tells a powerful and timely tale of privilege and ‘outsiders’ in the law: three individuals differentiated by race, class, gender and legal philosophy from their legal academic peers.  And finally, for the contemplative reader, Bartie presents the opportunity to ponder what scholars of the future might learn from the successes of these pioneers.

My particular interest in Free Hands and Minds lies in the work’s extension of the genre of legal biography in Australia. Bartie has offered a detailed comparative intellectual biography of her three chosen pioneer Australian legal scholars. Her account of her archival examinations was one which particularly resonated for me; as a reminder of the joys, challenges and unexpected epiphanies that this kind of legal research can provide. Readers of Free Hands and Minds are beneficiaries of work of a different age, not simply that of the generation of Brett, Tay and Sawer, but also of the slow, time-intensive scholarship undertaken by academics permitted to travel for long periods.

In the last two decades, the focus in growth in Australian legal biography has been in judicial biography. JM Bennett’s masterful series Lives of the Chief Justices, has corrected significant gaps in scholarship on Australia’s early state Supreme Court Chief Justices. Keith Mason’s 2020 publication Sir Frederick Jordan now also provides a detailed examination of a figure regarded by many as the greatest Australian judge never to be appointed to the High Court. Mason’s work is a particularly rich illustration of the judicial biography genre, blending a biographer’s cradle-to-grave narrative structure with thematic chapters on the intellectual coherence of key aspects of Jordan’s decision-making.

Perhaps the greatest variety in Australian judicial biography of late has come in the different treatments of Justices of the High Court. For example, Sir Owen Dixon, Mary Gaudron, Michael Kirby (with two biographies and a memoir), Sir Ronald Wilson, Murray Gleeson, and HV Evatt have all been subjects of recent book-length volumes. Each work illustrates the author’s methodological and narrative choices in interpreting how to ‘make sense’ of their subject, and how these choices differ for lawyer, political scientist and historian. They also illustrate the struggle to gain access to source material from reluctant subjects, the difficulties posed by missing (or in the case of AJ Brown, writing on Kirby, potentially too much) material, and the imperatives of writing for different audiences. Contrast for example, the treatment of their respective subjects’ judicial outputs by Brown, Philip Ayres (writing on Dixon) and John Murphy (writing on Evatt). Murphy’s book is a thoughtful re-examination of Evatt’s life and contribution, which delves with new depth into his relationship with his wife, Mary, as well as offering an historian’s deft evaluation of the veracity of the available source material. In an era when questions surrounding the removal of justices are debated with vigour, Murphy’s discussion of Evatt’s final years on the Supreme Court of New South Wales are particularly valuable and poignant. But Evatt’s High Court years attract only limited attention in this story of Evatt’s life, despite his role in an important period of the High Court’s history. Ayres and Brown in contrast devote considerable attention to the High Court tenures of their subjects: Ayres with the advantage of Dixon’s extensive diaries to take the reader closer to understanding Dixon’s inner motivations; Brown with access to a live subject, one who still continues to write and speak on legal topics.

Tanya Josev’s work has provided compelling explanations for the traditional suspicion of legal biography in Australia, and the recent growth in the genre. Mason’s recent biography of Jordan allows us to face again a further recurring question in this field: why do some figures ‘merit’ a biography (or in the case of Kirby and Evatt more than one), while other lives remain unwritten for decades? Sir Victor Windeyer and Sir Anthony Mason are just two examples of the latter. For Murphy, Ayres and Brown the timing question had different, and understandable answers: access to grant funding to attempt a multi-year project; the permission of heirs to allow access to diaries; and the approach of the subject’s statutory retirement age and privileged access to the subject’s working and personal papers. For Bartie, the timing question was more easily determined, as her book was the product of her doctoral dissertation. Perhaps then we have an answer to the question of how to stimulate further research in legal biography – greater funding of legal biography PhDs –  for as Bartie’s work demonstrates, the methodological rigour required of such a project makes it an ideal training ground for future legal scholars.

I have written elsewhere that judicial biography is a particularly rich form of legal scholarship, by virtue of the multi-focal lens it provides on the work of courts and judges: the portrait, landscape and zoom perspectives. These different perspectives apply equally to all legal institutions, and are well represented in Bartie’s work on the legal academy. She has, through her painstaking research, enabled close examination of her three subjects’ intellectual trajectories; offered thoughtful reflections on the academic landscape of their eras, and how her subjects navigated those landscapes; and provided an analysis of the working practices and impact of each figure. Her exploration of the landscape of the Australian legal academy has particular significance not simply in its own right, but also for the potential for Free Hands and Minds to fill gaps in our understanding of what it was like to study and work in the law schools and research schools in Melbourne, Sydney and Canberra in these eras. These institutions were the training grounds for generations of Australian leaders, including leaders in the law. As such Bartie’s analysis of how Brett, Tay and Sawer envisaged their roles as teachers and influencers will provide important material for future biographers as they attempt to unlock the formative educational influences of their subjects.

Bartie’s work also reinforces the new insights that can arise from comparative biographical works. Readers of Bennett’s magisterial works on Australian Chief Justices will have already experienced the joy of picking up any combination of his books and charting a temporal path through the growth of the Australian legal community in a specific jurisdiction, or locating figures in different states to explore the varied institutional and individual choices that influenced the development of an intellectual philosophy and its impact. The three Parts of Bartie’s narrative structure in Free Hands and Minds offer this potential for the reader also. In this way Bartie’s structural choices should be contrasted with other comparative biographical works. For instance, in Sisters in Law, her 2013 dual biography of Sandra Day O’Connor and Ruth Bader Ginsburg, Linda Hirshman weaves the different strategic choices these women made in exercising their voices on the bench, and the influences of career pathways, and the pressures of being ‘first’, and ‘only’, throughout her narrative of their respective careers. Bartie’s analysis does not take such an overtly comparative approach throughout the three parts. That choice is understandable. Weaving the stories of three distinctive scholars into a single coherent narrative is a far different task to that of telling the stories of two women who both ended up appointed to the United States Supreme Court. Instead, Bartie made the choice to tackle the important comparative analysis in her concluding chapter. Unfortunately the formatting of her Table of Contents is misleading in this regard, as it suggests that those conclusions run on from her discussion of Sawer. Readers of the concluding chapter are urged to pause to reflect upon the key lessons and insights Bartie draws upon in her final section, including her discussion of the central impact of local conditions and institutional incentives at the Universities of Melbourne and Sydney and the ANU, that featured in Brett, Tay and Sawer’s influence and impact. That each of these figures were themselves ‘outsiders’ also offers a timely reminder of how opportunities can be differentially given, and which groups may be excluded from those offerings. As such Bartie offers an important contribution to discussions around diversity in the legal profession, why it matters, and how ‘outsiders’ can be better supported in the legal world. How Bartie examines these themes are topics explored further by Katherine Biber and Brendan Lim.

I often found myself reading Bartie’s book with a particular question in mind: what was it about these individuals that allowed them to thrive in the challenging environments in which they worked? Below are four of the character traits that I see as emerging strongly from Bartie’s work:

  1. Resilience: Brett, Tay and Sawer each faced significant challenges and deprivations, particularly in their early lives. Sawer, for example, was a war orphan. Brett, a Jewish man from a lower middle-class family in Britain, had had active service during World War II, and had been affected deeply by observing the anti-Semitism of the period. Tay also needed to combat gendered and racial stereotypes in forging her career; the perception of her as a ‘difficult woman’ was pervasive. Tay’s combative nature, and prioritisation of conflict over collegiality fed into these perceptions. However, each believed that they could make a difference, and that it was their moral obligation to use their intellects and positions to do so.
  2. A commitment to teaching, broadly defined: Brett, Tay and Sawer privileged teaching and innovations in legal education not, as Bartie evinces, because of any deficit in their scholarly aptitudes but because they were dedicated teachers. Sawer extended his teaching role to be that of public educator. Their commitment to teaching came from a passion for bringing about cultural change within the profession. They believed that teaching was an obvious way to achieve this, and this has formed an important part of their legacy. In Brett’s case, however, Bartie notes that dedication did not necessarily translate into the warmth and encouragement that might be expected in modern teaching encounters. He had a tendency to single students out and a severity of tone that produced negative experiences for students, which was perhaps also the result of a different generational approach to teaching. Bartie argues, however, that his textbook with Louis Waller represents one of the most imaginative teaching innovations in Australian law schools in the twentieth century.
  3. Networks: Each envisioned their role as enhancing Australian scholarship and law reform. In particular, each had extensive networks (international and into the profession) which they utilised for the benefit of their departments and scholarly agendas. For Sawer and Tay this included extensive interpersonal networking and mentorship of junior scholars. Sawer, for example, was known for his generosity and as an ‘extraordinarily nice fellow’. Tay, while regarded as ‘not sympathetic’ by some at an interpersonal level, made it a central aspect of her department to invite international scholars for long-term visits to her centre. Her famed cocktail parties enabled scholars to mingle and develop the interpersonal connections that ensured future collaborations, and future career opportunities for the junior scholars in their departments.
  4. Independent spirit: Bartie’s work reaffirms that the most influential scholars are those who find their own voice in the legal academy, and passionately and resolutely pursue that voice and vision. None of her subjects saw their departments as places to instal a monolithic vision of the role of law in the community. Bartie also makes the point that each of her subjects was given the freedom to develop their intellectual and departmental vision, unfettered by centralised value statements, or funding contracts. In addition their promotion was not contingent on their productivity indicators or their philosophy. As a consequence, each was able to express their individual approaches without fear of reprisal or career suicide.

As Bartie concedes, the challenges Brett, Tay and Sawer faced are different from those of the current climate: for the trio, the neo-liberal imperative had not yet had its seismic impact on universities of their age, and external grant funding had not yet transformed the nature, or perceived importance, of certain kinds of legal research. As 2020 has raised questions about how Australian law schools are to operate in the future, Bartie’s book can be read as far more than simply an impressive work of Australian legal history. It also provides a guidebook for Australian law school Deans, and those academics in less publicly visible leadership role. It offers important analysis of the practical, intellectual and personal strategies that are required to anticipate, prepare and lead institutions through the challenging times ahead.

Heather Roberts is Associate Professor at the ANU College of Law

Suggested citation: Heather Roberts, ‘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-heather-roberts/>