Book Forum on Susan Bartie’s Free Hands and Minds: Pioneering Australian Legal Scholars - Katherine Biber

AUSPUBLAW is pleased to present another of our occasional series of book forums. In this book forum, Katherine Biber, Brendan Lim and Heather Roberts reflect on Susan Bartie’s Free Hands and Minds: Pioneering Australian Legal Scholars. Susan Bartie responds.The introduction to the book can be accessed for free here.

Katherine Biber

03.02.21

Free Hands and Minds is Susan Bartie’s recent book exploring Australian intellectual history and legal biography. I came to Bartie’s book as a scholar interested in émigré lawyers in Australia. Described by Mark Lunney as a “forgotten history”, the history of the impact of migrants upon Australian law is only partially written, and Bartie’s book makes an important contribution. Her work counters the dominant narrative of British inheritance, drawing attention to the diversity of Australia’s legal actors. Each of Bartie’s three subjects is an émigré, albeit none migrated with their legal training completed. Bartie’s subjects are an English-born Jewish man (Peter Brett), a Malaya-born Chinese woman (Alice Ehr-Soon Tay), and a child born in Burma to English parents (Geoffrey Sawer), who migrated to Australia as a small boy. Bartie’s project is to investigate the formation of what she terms “Australia’s first community of legal scholars”; that is, legally-qualified professionals who worked in universities as researchers and educators. Prior to the establishment of this community, law students were taught by legal practitioners who saw themselves as engaged – part-time – in service to the profession, and certainly didn’t regard themselves as scholars. For Bartie, this first community transformed legal education and legal research, and also the role of law schools within the institution of the university. Each of her subjects also made contributions beyond the academy – to public administration, litigation, law reform and public discourse – and Bartie traces some of these influences also.

Bartie describes her project as an “intellectual experiment” (at 269), seeking to understand how ideas are shaped, the circumstances that bring them about, and the ways they are formed by individuals working in shared milieus. Bartie’s cohort is heterogeneous: their journeys to Australia have diverse triggers, and their careers unfold in response to unique opportunities and interests. Whilst her book follows three distinctive and fascinating biographies, they almost never connect. It seems that with one possible exception in September 1953 (detailed at 256), where Brett applied unsuccessfully for a job in Sawer’s department, Brett, Tay and Sawer never met nor corresponded. Whilst Brett’s prodigious book-reviewing suggests that he read vast quantities of legal scholarship, it isn’t clear that he read the work of Tay, and he wrote one short and lukewarm review of Sawer’s Law in Society. These three scholars do, Bartie argues, serve at the vanguard of Australian legal scholarship, but they are not really a community. This is made more poignant when we learn that neither Brett nor Tay were especially well-liked.

My interest in Bartie’s book is motivated by a new project I am undertaking with two colleagues, Sara Dehm and Ana Vrdoljak, investigating European émigré lawyers fleeing to Australia before, during or immediately after the Second World War. Other scholars have begun to study the journeys, reception and impact of WW2-era émigré lawyers who went to the United Kingdom (see Beatson and Zimmermann (2004); Bentwich (1953)), the United States (see Leff (2019); Graham (2002)), Israel (see Likhovski (2018)), and elsewhere (see Loeffler and Paz (2019); Pue and Sugarman (2003)). Those who came to Australia undertook journeys that were rarely safe, linear nor professionally desirable. Already qualified as lawyers in their countries of origin, many in our cohort migrated to Australia and found that their skills and networks were unrecognised and under-valued. Their sources, methods, philosophical foundations and comparative approaches were literally foreign to their new Australian colleagues, and so they did form communities. One such community formed around Professor Julius Stone at the University of Sydney; another around Professor Wolfgang Friedmann at the University of Melbourne. Both men appear fleetingly in Bartie’s book, as do several other émigrés from this period: Samuel Stoljar (Alice Tay’s PhD supervisor at ANU), Louis Waller (Peter Brett’s collaborator at University of Melbourne), Ilmar Tammelo, Charles Alexandrowitz and Stevan Glichitch (who were members of Stone’s circle at the University of Sydney). This speaks to the under-acknowledged importance of diversity in building the legal academy in Australia (and, more broadly, the legal profession). It also illustrates that one of Bartie’s arguments – that there was a distinctive Australian jurisprudence in this era – was in fact forged by this convergence of global scholars.

Brett was born Isidore Peter Bretzfelder into a Jewish family in London, and Bartie suggests that he probably experienced anti-Semitism in England, and particularly in the British army, causing him to conceal his Judaism. His first contact in the Australian academy was Wolfgang Friedmann; once arrived in Australia, his mentor was Zelman Cowan, who laid the path for Brett to undertake an SJD at Harvard. Brett’s long-time collaborator in Australia was Louis Waller. Each of these men was openly Jewish, and yet Waller, who was Brett’s closest friend and colleague, claimed that he didn’t know Brett was a Jew, and furthermore believed that he later became a Freemason.

Brett’s criminal law textbooks with Waller are now dated and mostly forgotten, eclipsed by Waller’s collaboration with Bob Williams; Bartie recounts anecdotes about his sexist and insensitive teaching practices, particularly his salacious treatment of sex crimes. However, Brett’s legacy as an advocate deserves restoration. Brett’s work championing miscarriages of justice is a fascinating facet of Bartie’s book, albeit he took on causes with complicated stakes, and hindsight doesn’t provide any clarity about the correctness of his convictions. Brett was President of FAUSA (the Federation of Australian University Staff Associations that is the predecessor of the National Tertiary Education Union) and in that role defended and supported Sydney Orr, a philosophy professor at the University of Tasmania embroiled in a dispute over academic freedom and sexual misconduct. Brett also served on the legal team of Robert Tait, whose execution was stayed by the High Court. Tait’s execution was in the last minute commuted to life imprisonment, although Brett’s role in this outcome is uncertain. Later, he played an important role in the release of Western Australian man Darryl Beamish, whose deafness and intellectual disability cast doubts over the safety of his conviction for a brutal murder. Brett also served as a dogged campaigner for Leith Ratten, convicted of murdering his wife, and whilst his conviction was not disturbed, Brett brought significant public attention and scrutiny to the case.

Bartie has taken an eclectic and open approach to her sources and their interpretation: she has examined university archives, has read the entire body of work written by each of her subjects, and has conducted interviews with their former students, colleagues and children. Much of their correspondence survives, and it maps the breadth and density of their networks of influence. Whilst her focus is on their intellectual lives and legacies, it is perhaps Sawer who is presented most fully-formed, as a complex, compassionate character. His childhood, more so than Brett’s and Tay’s, is written as a compelling prequel to his career. From tragedy and deprivation through to patronage and sponsorship, Sawer’s intellectual curiosity is matched with personal warmth, and he is the only one of Bartie’s subjects who appears to have been liked and admired by others. Bartie cites a telling memo from Sawer, in which he acknowledges that the traits he most admires in American intellectuals are largely the result of the “European experience” enjoyed by some of them, or “transplanted Europeans” working in the American academy: he writes that they “have a kind of gusto and also a kind of fastidiousness which the purely American-trained man frequently lacks” (at 248). This acknowledges the realisation – shared by each of Bartie’s subjects – that the modern legal academy is a global enterprise, characterised by the translation and transmission of ideas, concerns, practices and traditions.

Tay came into the role leading the Department of Jurisprudence and International Law at the University of Sydney in 1975, the autonomy of which had been precarious under the leadership of her predecessor, Julius Stone. Bartie examines the machinations of university administrators and committee members, revealing that Tay, whilst honouring Stone’s legacy, also perpetuated his hostilities. The diversity of the Department’s personnel is noted, as is the vibrancy of its intellectual constituents. Together, they brought together civil law, common law, and Asian and Soviet legal traditions, and contributed to the curriculum in international law, comparative law and jurisprudence. Bartie’s focus is on Tay’s formidable personality, her global network, and her intellectual influences, many of which she explored with her husband, the émigré philosopher and historian of ideas, Eugene Kamenka. Bartie’s description of Tay’s creativity as an administrator, and her resistance to university managerialism, provides insight into Tay’s courage and tenacity.

Alice Tay was one of my jurisprudence lecturers when I was a first-year law student at the University of Sydney in 1991. I remember her as intimidating, humourless and glamorous, with no particular facility for communicating with several hundred teenagers at 9 am on a Monday. She locked the doors of the Carslaw theatre at 9.01 am and lectured her captive audience about Ferdinand Tönnies, Gemeinschaft, Gesellschaft, and Lady Chatterley’s Lover. Every anecdote that I recall from her lectures is funny in an absurd way; none of them flatters her. Around the same time, she was embroiled in legal proceedings, alongside Kamenka, arising from the fines imposed upon them by the Australian Electoral Commission for failing to vote in the 1990 federal election. They argued in the ACT Magistrates Court that they couldn’t have made an informed political decision as they were overseas during part of the electoral campaign; they won. This incident is not recounted in Bartie’s book.

Bartie’s project marks a distinctive Australian contribution to the endeavour of writing legal biographies. Internationally, the Legal Life-Writing project, led by Linda Mulcahy and David Sugarman, recovered the story of forgotten legal actors, foregrounding the role of women in particular, through a distinctly transnational approach. At Harvard, the Writing Legal Lives workshop in 2019 investigated the use of biography, prosopography, microhistory and institutional history as useful methods for approaching transnational, imperial, global and non-Western histories of law’s participants. In Australia, the Lives Lived with Law project, led by Ann Genovese, Shaun McVeigh and Peter Rush, has coined the term ‘jurisography’, in which legal biography demands a self-conscious attention to the convergence of everyday life and lawful relations. It is an approach that enables complexities, subjectivities and relationalities to form a part of the text, and brings ethnographic, oral historical, theoretical, ethical and political frameworks into the life of the law and its personnel. Also in Australia, Kim Rubinstein’s Trailblazing Women and the Law project takes seriously oral history as a legal method and offers an innovative method of research engagement and dissemination. Each of these approaches, in different ways, pursues the entanglement of doctrinal, institutional, geographical and familial spheres, experiential and temporal transitions, and ideological and disciplinary commitments within these. Free Hands and Minds is an important new work in this context, uncovering new knowledge and drawing fresh connections in writing the history of the Australian legal academy.

—

Katherine Biber is Professor of Law at University of Technology, Sydney.

Suggested citation: Katherine Biber, ‘Book Forum on Susan Bartie’s Free Hands and Minds: Pioneering Australian Legal Scholars on AUSPUBLAW (3 February 2021)