Susan Bartie replies to reflections from Katherine Biber, Brendan Lim and Heather Roberts on her book Free Hands and Minds: Pioneering Australian Legal Scholars. To see all posts, please click here.

BY SUSAN BARTIE

It was a great privilege to begin 2021, a time of cautious optimism, reading the reviews of my monograph, Free Hands and Minds, by Katherine Biber, Brendan Lim and Heather Roberts. I am extremely grateful to each of them for taking such care with my work, and I am thankful to the editors, Zsofia Korosy and Elisabeth Perham, for providing this platform. As opportunities to attend conferences and speak about this book evaporated in the course of 2020, this blog, along with other reviews and online forums, has meant that the work did not sink without a trace.

Free Hands and Minds had its genesis in the early years of my academic career, when I aspired to be a private law scholar and possessed no notion of exploring the contours of the discipline. During my first year teaching tort law I closely analysed provisions governing causation in the then new civil liability legislation. The provisions seemed novel in that they adopted the framework prescribed by a leading tort law professor, Jane Stapleton. Had the legislature transgressed some real or imagined boundary between legal academia and legal practice when it substituted common law approaches with those created by a professor? This line of inquiry led me to the vast body of scholarship on the role of the discipline and its relationship to other ‘stakeholders’.

Initially, my reading was conducted with one of my eyebrows perched firmly above the other. Much of the writing was anecdotal, based on the writer’s experiences of academia and law schools. Few writers attempted to test their impressions or assumptions against broader readings and studies, or sought to understand how and why practices and ideas had been formed or changed over time. The majority advocated for disciplinary practices based on normative assumptions which, not so coincidentally, matched their own academic agendas. Rather than providing new understanding and insights into the discipline, the predominantly normative and prescriptive nature of the literature either confirmed the reader’s existing beliefs or rallied them towards a particular side.

As I looked a little harder, I discovered some more rigorous and interesting studies. These were works which took empirical approaches, often historical and book length, in an effort to understand why legal education and research had adopted certain methods, approaches and perspectives over others. What struck me most was how this literature revealed the ways that ideas, personalities, circumstances and institutional and broader politics all played a part in shaping what was taught and what was studied. It confirmed that the discipline was a social and historical construct and that there was nothing natural, ‘correct’ or self-evident about how law was taught or studied. Within the common law world by far the largest body of work concentrated on the discipline of law in the US with a smaller, but equally rigorous, number of studies of English and Canadian legal academics and academies. There were very few Australian studies.

My broad aim was to conduct an Australian study of the discipline modelled on what I considered represented the best of this field. In the introduction to Free Hands and Minds I explain at some length why I chose to concentrate on just three law professors — Peter Brett, Alice Erh-Soon Tay and Geoffrey Sawer — and why I chose these three. Put simply, I considered that studying the endeavours and academic agendas of individual professors may counter the existing broad generalisations about the discipline. I chose these particular professors because, at least on paper, they displayed characteristics and held leadership positions which suggested they had the potential to be pioneers who shaped the discipline. They were theoretically inclined legal scholars who both knew and kept up with the leading English and American jurisprudential scholars and experimented with a range of theories and bodies of knowledge from other disciplines.

Brett and Tay were appointed Professors of Jurisprudence at Melbourne and Sydney (respectively) and Sawer was the first legal academic to find a post in a research school of social sciences (at the ANU in 1950). While they knew one another, there was nothing in the archives or in my interviews that suggested they had close professional relationships. Rather, they were part of the small community of legal scholars that emerged in Australia from the 1950s. By providing a rich and nuanced account of the central professional endeavours and agendas of these three scholars, I hoped to challenge some central myths nurtured by the absence of studies into the discipline of law in Australia.

First, I wished to refute the idea that there was nothing particularly distinctive or interesting about the Australian experience and that, with the exception of Julius Stone, there were no law professors worth studying. This myth spoke of a US and English cultural and intellectual imperialism. It seemed to be based on insensitive and unwise comparisons between leaders of Australia’s legal academy and those in the US and England. For example, one of my central subjects, Geoffrey Sawer, was theoretically inclined and shared several of the same commitments as one of the most eminent jurisprudential scholars of the 20th century, HLA Hart. Unlike Hart he did not, however, advance seminal monographs on the meaning of law and is not as well-known as the English and American jurisprudential greats.

My studies suggest that these differences are largely a product of context rather than intellect. Sawer, unlike Hart and other English and US jurisprudes, was situated within an infant legal academy where few books were devoted to Australian law and none had grappled with the substantial task of making sense of the first 50 years of Australian constitutional law and politics. Sawer sought to build a tradition of Australian constitutional law scholarship from the ground up and formulated questions and applied methods which responded to his Australian environment. When, at the invitation of HLA Hart, Sawer wrote Law in Society for the Clarendon Law Series, his aim was to encourage practitioners, primarily those based in Australia, to shed their tendency to view law as autonomous. He drew from his foreign networks and kept abreast of the latest theories and ideas, but he responded, constructively, to his Australian reality.

Since completing this book, I was pleased to learn of Biber, Sara Dehm and Ana Vrdoljak’s large study of several European émigré lawyers who arrived in Australia around the time of the Second World War. Biber has generously drawn connections between this project and mine, suggesting that both works counter ‘the dominant narrative of British inheritance, drawing attention to the diversity of Australia’s legal actors’. I share Biber’s hope that our projects, along with others, will illuminate how the diversity and distinctiveness of actors within Australian law have contributed to its nature and form. Several of them were outward looking, globally connected and also fiercely committed to improving Australian law and society. I hope these and similar works provide a stronger, more nuanced, understanding of Australian law.

A further myth I wished to debunk was that Australian legal scholars are a marginal part of Australia’s legal system. Lim, in his review of Free Hands and Minds, identifies two ways that this book makes a case for recognising the importance of the discipline and legal scholars to Australia’s legal culture and ideas. First, he describes the book as a ‘probing exploration of the constitution of the legal system itself’. He suggests that legal academics ‘exercise power over the formation of the minds that constitute that system of law’ and that it is not ‘possible to understand the constitution of a legal system without knowing something of the constitution of the minds that sustain the system’. Second, he speaks of the legal academy’s important role as gatekeepers of legal knowledge, facilitating an expansion of the field in ways which may compliment (rather than threaten) the work and thinking of judges and practitioners.

It is important not to exaggerate the role of legal scholars or privilege their work above that of the many different lawyers who form the legal profession. Nonetheless, I hope that my book will impress upon its readers that the rapid growth of university legal education and the size of the legal academy represented an important change to Australia’s legal system and laws which, among other things, ushered in new knowledge that had the potential to change Australia’s legal system and legal practice.

In addition to debunking myths, I also hoped to give to Australian legal academics what the rich foreign works had given to me. Put simply, at an early stage of my academic career these books gave me both perspective and a sense of responsibility for the discipline. Part of the book’s title, ‘free hands’, is a reference to the following passage from a letter from FW Maitland to AV Dicey:

The only direct utility of legal history (I say nothing of its thrilling interest) lies in the lesson that each generation has an enormous power of shaping its own law. I don’t think the study of legal history would make men fatalists; I doubt that it would make them conservatives; I am sure that it would free them from superstitions and teach them that they have free hands.

Frederic William Maitland to Albert Venn Dicey (1896) in The Letters of Frederic William Maitland, 2 vols., ed. C. H. S. Fifoot and P. N. R. Zutshi (Cambridge and London, 1965–95) 2

Free Hands and Minds is an attempt to demonstrate how legal academics have contributed to the shape of Australia’s discipline of law. By revealing the central choices made by my three subjects I hoped to show that they were pioneers who took responsibility for shaping the discipline and serving society and that my academic readers share this potential. By describing different ways of thinking about the role of law schools and ways of being a legal academic, I hoped to free academic readers from merely accepting and responding to present arrangements and agendas within law schools and universities. I wrote about the past to help legal academics ‘think with greater ingenuity, optimism and depth about the opportunities and problems of the present’. (Free Hands and Minds 5)

In her review of Free Hands and Minds, Roberts draws together the four traits of my three subjects which she considers ‘allowed them to thrive in the challenging environments in which they worked’. She places them under the headings: ‘resilience’, ‘a commitment to teaching’, ‘networks’ and ‘independent spirit’. The traits which Roberts has thoughtfully assembled speak to the attitudes, values and spirit that each subject applied to enduring questions about how to write, teach and serve the legal and broader community. While I see these traits in colleagues and mentors, the sense of optimism about the discipline and the potential richness of an academic career is currently under serious strain. It is worth repeating a lesson Lim drew from the book: the emergence of an ‘independent scholarly community is a recent innovation in Australian law, and a potentially fragile one that ought not to be taken for granted’.

Of course, I never anticipated that in the year following the publication of this book Australian universities and law schools would be so severely tested. COVID-19 prevented many overseas students from studying at Australian universities and most campuses were temporarily closed as governments introduced measures to prevent the spread of the virus. Considerable losses in student fee revenue provoked managers to overhaul many aspects of universities, leading to voluntary and forced redundancies of academics across the sector, and changes in teaching expectations for those who remained. The situation provoked fear and soul searching among academics, with several choosing to leave the sector. Within my own circle of students and friends, PhD graduates who once aspired to become academics have sought employment outside universities and law graduates contemplating doctorates have anticipated a shrinking employment market for academics and have chosen to take a different path. For those legal scholars who remain, yet continue to wonder whether an academic life is for them, I hope that Free Hands and Minds will bring perspective and serve as a reminder of the many possibilities of their vocation. While opportunities have been curtailed, they have not yet been obliterated. It is important to remember that we are part of a much larger local, global and changing tradition of legal education and research which has a vast potential to serve society and that, to achieve this, we need more pioneers.

Susan Bartie is a lecturer in law at the University of Tasmania.

Suggested citation: Susan Bartie, ‘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-susan-bartie/>