I preface this review with a disclosure. The author, Joshua Krook, is a friend of mine, and we have studied law together at the University of Sydney. I have also given my modest support to Krook’s project by helping him with some editing and commentary. Having said that, following its release, I have read the book with fresh eyes and in light of my own critical standpoint.
Legal Education, Privatization and the Market arrives at an important juncture for law students and graduates, at a time when the sheer number of said graduates in Australia is higher than ever, and opportunities in the sphere of commercial law appear ever narrower. Furthermore, the demographic that this group falls within, predominantly Gen Ys in their twenties, finds its progression through various quarters of life hindered by a range of economic, political and cultural factors, including a lack of affordable property, the rise of unpaid internships, the renewed regulation and privatisation of entertainment and cultural life, and a political class apathetic to concerns about its future. It is also a time when various Australian universities are embracing a business-oriented approach to education, marketing and student services. For example, my own alma mater, the University of Sydney, has itself announced that it will consolidate undergraduate courses into fewer, larger faculties, offering standardised degrees more in line with the needs of the global market.
Against this background, Legal Education is a fresh, fearless critique of the oft-celebrated law degree. Among the different approaches various commentators have used to explore the complex and kafka-esque conditions currently faced by law students, Krook’s style deliberately tends towards a broad liberal polemic rather than the academic. In doing so, Krook forgoes a clear methodology or critical framework, yet its absence offers the book flexibility with its approach, allowing him to include powerful statements that will no doubt steer public debate on the issue. Legal Education’s clear, evocative prose stands firmly behind his condemnation of legalese, which uses bland jargon in order to mask the socio-political implications of legal discourse in all its settings
The key to a critique of this book lies in the implicit narrative of legal education’s fall from grace. In explaining the decline of legal education and the life outlook it promotes in students vis-a-vis the penetration of neoliberalism into the university, without exploring past conditions in critical depth, the book suggests that things were generally better before, at some notional point when the law was considered the “honourable profession”. Such a narrative bears reactionary undertones which reformists such as Krook would do well to avoid.
While an analysis of what the state of legal education was like in the past is beyond the scope of this review, it is unlikely that they were uniformly better in the way the book suggests. The book does detail the influence that Christopher Langdell had on Harvard Law School at the end of the 19th century in fostering a critical, Socratic legal pedagogy, which Australia inherited, however more recent history is elided into one process of decline away from these ideals. One can reasonably speculate that, upon taking into account certain developments, a more complex story would emerge. Before social changes in race and gender relations that were then reflected in education systems, careers in law were largely inaccessible to all but the most well-connected white males, whose ideological range would be much narrower than that found at universities today. Globalisation has made it more common to interlace one’s understanding of law from an Australian perspective with a range of overseas perspectives, including those of various European civil law jurisdictions (among them France and the Scandinavian countries) where law is purposefully written and proclaimed in a manner intelligible to the common man. The same goes for one’s understanding of global events, which are transmitted via cyberspace to be discussed in seminar rooms and lecture halls the very next day.
This does not mean that Krook’s scathing assessment of the current state of legal education is any less true, nor well-pitched in its severity. Rather, it points to the need to frame this assessment within a more radical understanding of change. The combination of political conservatism and economic liberalism espoused by neoliberalism corresponds with the idea that “some things must change in order for things to stay the same”. Social upheavals are exploited in order to promote different versions of stability that continue to benefit powerful classes. Correspondingly, the book’s account of how globalisation has been used as a justification for vocational graduate attributes shows how the neoliberal academic paradigm co-opts such a catalyst for positive change. One can imagine that this would be sold to students as the need to find a stable career (in law, which is now anything but for a large portion of students) in response to the uncertainty that globalisation brings.
To go further, here I would like to point out that linguistic association between liberalism and neoliberalism is no accident- rather, the latter in many ways emerges from the history of the former. Where liberals traditionally refrained from interfering in the development of civil society, neoliberals recognised that economic and institutional interventions into the former were necessary to bring about the freedoms that liberalism notionally promises. In this respect, every positive gain made by liberalism has come at a heavy price. This has occurred as a result of an ideology which codifies change in the following manner- yes, we can have an injection of new people and ideas into the profession, but their contribution has to benefit the economic bottom line. In light of this, a more radical understanding of change would ask slightly different questions to those posed by Krook. It would point to the unfulfilled potentialities of technological progress, globalisation and greater diversity for law schools and the legal profession, and interrogate the roadblocks which present conditions pose for these developments.
A perfect example of this from the recent history somewhat omitted by the book lies in the Dawkins reforms of the late 80s. These reforms marked perhaps the biggest change in education policy alongside the reintroduction of tertiary fees during those same years, and set the stage for the current state of tertiary education. Their stated aims were to increase undergraduate enrolment numbers, thereby educating a larger portion of the population, and to dismantle the two-tier system where technical colleges stood below universities in terms of funding, regulation, and overall quality of education. There is little doubt that these aims were achieved. However, a heavy price was paid. As a new regulatory scheme was applied to universities and many of them amalgamated with technical colleges, universities became more exposed to market pressures and had to accommodate for a new class of managers and administrators tasked with implementing the reforms, and academics found that their funding became contingent upon justifying the value of their research as an economic commodity.
Furthermore, the lack of methodological framework leaves Krook unable to completely flesh out the nature of certain problems. One could reasonably disagree with his assertion that lunches between academic staff and employees of law firms come close to political lobbying and corruption. After all, even at its most abstract, academia should remain a study of actual existing conditions, as opposed to mere theoretical understandings of what institutions should be or what ideas they should espouse. In any case, including graduate attributes in the framework of the curriculum allows students to know what will be expected of them as potential lawyers, without necessarily requiring them to betray their openness to critical insight in favour of adopting certain traits and competencies. Rather, the problem with the situation Krook describes is that, as academics have seen their institutional power diminish, leaving less room for independent academic discourse, education becomes coded in the terms of the commercial legal world, as opposed to the latter being coded in the terms of academic discourse.
His attack on legal positivism in many ways goes beyond criticism of the negative aspects of positivist doctrine as articulated by Hans Kelsen. He paraphrases Edmund Burke when he writes “evil occurs while good men chose to never teach society how to combat said evil.” This exemplifies his overall approach of seeing this as a conflict of values rather than discourses. While this makes for good polemic, it overlooks certain facts about the law. An indispensible aspect of modern law, which inscribes itself in every judgment, has been the very assumption that law is a discourse sealed off from the influence of institutions and ideologies outside the law. Regardless of the truth of this assumption, its existence is crucial for the operation of legal discourse. On some level, this understanding is shared by those who say “the law is the law”, a positivist pronouncement that draws much criticism in the book, and the ethically-minded who say “this is the law. It is unjust.” One must be able to point not only to the emergence of the system out of material conditions, but the conditions through which certain phenomena, events, or decisions are given the full force of the system itself.
For example, saying “the law is the law” cannot be sufficient to explain the selective enforcement of the criminal law to the detriment of Aboriginal people; yet neither will a sociological critique of systemic biases in the enforcement and administration of criminal law explain how these became embedded in the system’s legal character. Rather, one must look at how criminal law relies on pockets of discretion as much as it relies on clear legal principles, discretion that, in the absence of adequate review, facilitates discriminatory administration and enforcement flowing through the entire system. Legal education must integrate both internal and external critique of the legal system, a point neglected by Krook in his opposition between values- and process-driven learning.
The book excels in the way it describes how particular impulses have been tamed in the process of legal education. This is most apparent in its critique of the role of the discursive figure of Michael Kirby among law students, which ensures that considerations of morality, justice and human rights continue to be seen as peripheral projects of sidelined idealists, doing little to alter the sentiment expressed by the majority judgments in the cases where he dissented. One also finds an insightful discussion of the paradoxical demand for “well-rounded” graduates to commit to long graduate programs, where, in the words of the book, ‘a “well-rounded” candidate may well develop interests outside of law…and therefore seek to leave legal employment at some point in their lives’. What this actually encourages is the very opposite- that students must extend their legal and vocational outlook to all parts of their lives, including their social lives and their other degree (in Australia there are limited opportunities to study law without also studying another degree, such as Arts or Commerce). Such insights cut against the grain of the assumptions of the upwardly-mobile middle-class students who put great emotional investment on their law degree, and who might, as the book suggests, come away disillusioned. The book finds its greatest merit in its exposition of how endemic this disillusionment has become within Australia’s system of legal education and its urgent call to reverse this trend in the current climate.