Law, Lawyering and Legal Education

Building an Ethical Profession in a Globalizing World

Charles Sampford, Hugh Breakey

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317644651
• Edition: 1
• Topic: Diritto
• Subtopic: Diritto internazionale

Once a highly cosmopolitan profession, law was largely domesticated by the demands of the Westphalian state. But as the walls between sovereign states are lowered, law is globalizing in a way that is likely to change law, lawyering and legal education as much over the next 30 years – when the students entering law schools today reach the peak of their profession – as it has over the last 300.

This book provides a sustained investigation of the theoretical and practical aspects of legal practice and education, synthesizing and developing nearly thirty years of Professor Sampford's critical thought, analysis and academic leadership. The book features two major areas of investigation. First, it explains the significance of the 'critical', 'theoretical' and 'ethical' dimensions of legal education and legal practice in making more effective practitioners – placing ethics and values at the heart of the profession. Second, it explores the old/new challenges and opportunities for ethical lawyers. Challenges include those for lawyers working in large organisations dealing with issues from international tax minimisation to advising governments bent on war. Opportunities range from the capacity to give client's ethical advice to playing a key role in the emergence of an international rule of law as they had to the 'domestic' rule of law.

The book should stimulate great interest and occasional passion for legal practitioners, students, teachers and researchers of law, lawyering, legal practice and legal institutions. Its inter-disciplinary approaches should be of interest to those with interests in education theory, international relations, political science and government, professional ethics, sociology, public policy and governance studies.

1 Dancing around the vortex

A personal introduction

Charles Sampford

There are more things in heaven and earth, Horatio, than are dreamt of in your philosophy.

Shakespeare, Hamlet (Act 1, Scene 5)

This book retrieves and builds upon some of my essays addressing issues about the changing face of law, lawyering and legal education over the last 30 years. Those issues were, of course, canvassed by others in their own way during this period. But, each of us comes to them through a unique set of experiences in a distinct set of institutions whose members made assumptions about those institutions. My experiences, not least in my interactions with those institutions and assumptions,¹ provided important insights and influenced the way I addressed those issues. Like all such experiences, they can provide insights that others miss. As well as providing an introduction to the contents of this collection, this chapter provides a narrative of my journey through those experiences and assumptions. In so doing, I hope to explain some of the insights generated and present a case-study about how legal academia shifted over time, and one person’s role in that shift: helping instigate it even as I was living within the constraints of a dynamic environment.

Dancing around the ‘vortex’

Like most Australian law students in the 1970s, I combined the study of law with another degree – in my case a Bachelor of Arts (BA) in philosophy and political science at the University of Melbourne. It was possible to compress two four-year degrees into six by doing the first two years of the Bachelor of Laws (LLB) at the same time as a four-year BA Honours. By the end of my first year in 1972, I had decided that my interests lay at the ‘vortex’ where law, philosophy, politics and economics met. Furthermore, after two hours in Oxford with two Doctor of Philosophy (DPhil) students just after my first-year results came in, I had decided there was no better place to dive into that vortex than via a DPhil at that university.

Ever since then, I have been fascinated by that vortex – the issues it suggests, the perspectives and insights on long-standing debates that it provides, and the means by which those perspectives may be, at least partially, integrated. Initially, the vortex influenced my approach to the subjects I studied and my thesis. It influenced my interest in and the positions I took in the work covered in this book, mentioned in the retrieved essays and other areas of my work outside this book. Of greatest relevance here are questions about:

• The nature of law, legal practice and legal education and what constitutes ‘good’ versions of each (all chapters);

• The ‘critical and theoretical’ dimensions of legal education (Chapters 2 to 5);

• The questions that should be on the agenda of law schools (Chapters 3, 6 and 8), and the encouragement of lifelong professional engagement with those questions (Chapter 3);

• The role of other disciplines in the teaching of law and the practice of lawyers (Chapters 2 and 4);

• The ethical role of lawyers – including role morality, professionalism, ethical pluralism, the relationship with clients and what it is to be an ‘ethical lawyer’ (Chapters 9, 10 and 11);

• The sustainability of good lawyering (Chapter 7);

• The cosmopolitan past and global future of lawyering (Chapter 17);

• The role of other disciplines in legal and governance research (Chapters 2 and 9);

• The similarities between ethical and common law reasoning, and the contributions the latter can make to the former – the common law of the mind (Chapter 2);

• The role of ethics and integrity in governance research (Chapters 2 and 11).

The means for bringing those disciplines together in teaching law is very much the subject of Chapters 2 and 3. The means for doing so in research informs all my work and is touched on in Chapter 2 – in which I reiterate my formula for interdisciplinary approaches to dealing with institutional governance problems: ethical standard-setting, legal regulation and institutional reform – with the latter including political² and economic elements.³ In this process, ethics can play a coordinating role – which is why I call this approach ‘values-based governance’. However, I came to realize that although this vortex is a meeting point for disciplines that have taken on lives of their own, those disciplines have emerged from what was once a common intellectual space that engaged thinkers on human affairs right up to the age of Adam Smith and Jeremy Bentham. Indeed, such scholars would not have recognized the separate existence of those disciplines and would have been puzzled by attempts to study them separately.⁴ However, one of the problems with disciplinary specialization in governance research is that each of these disciplines have developed strongly theorized but limited conceptions of institutions, their problems, and suggested solutions to those problems. When lawyers look at institutions, they see formal norms (networks of contracts of institutions). If there is a problem, it is that the rules are not well-written, and the solution is to write new ones or rewrite old ones. When ethicists look at institutions, they see informal norms and values. If there is a problem, it is that the values have not been thought through, not articulated or not built into the people, processes and practices of the organization – and their solution is to do so. Many political scientists are impatient with norms and see institutions in terms of power – with defects lying in the poor power structures, which they can address. Economists look at incentives and disincentives, seeing institutional problems as the result of perverse incentives with the solution in aligning incentives and disincentives with the behaviour to be encouraged and discouraged respectively.⁵ These different perspectives each give vital but partial insights to institutional problems. However, it is rare that any one discipline on its own can adequately address the governance problems of today. I have also come to realize that professions can play a critical role in governance reform as they are formally dedicated to improved behaviour rather than minimum compliance.⁶

Ultimately, it turned out that the disciplines that provided such a stimulating vortex are, in fact, the disciplines that are necessary to understand governance issues. I later came to dub them the ‘governance disciplines’ – recognizing that governance required all of those disciplines working together.

In this connection, it is worth noting the difference between ‘transdisciplinary’ and ‘interdisciplinarity’. Interdisciplinarity assumes that the disciplines remain separate but are used simultaneously to address issues and/or solve problems. This can go beyond addressing the issue that generated the interdisciplinary response and may help us understand more about the disciplines and their interconnections, making it easier to deploy those disciplines in the future. However, the disciplines remain distinct and intact. An advocate of interdisciplinarity might suggest that it is better to allow existing disciplines to develop autonomously, addressing internal synergies and conflicts so that they are in better shape for the next interdisciplinary exercise. I am not criticizing interdisciplinarity and have happily accepted and used the description – while finding ‘transdisciplinarity’ a better term.

Transdisciplinarity seeks to transcend the existing disciplines, embracing parts of existing disciplines to address issues and to reorder ideas. This might be imagined as starting with different disciplines and bringing them together. This is certainly what I try to do at various times in this book – though I emphasize that transdisciplinarity does not create a new unity but rediscovers an old one. To some extent, I am working towards a kind of reintegrative disciplinarity. As the following chapter will indicate, I tend to focus on practical problems that need more than one of the disciplines to address them. Indeed, addressing most real problems of governance and law does generally require more than one discipline. One of the reasons for bringing together in workshops what I call ‘reflective practitioners’ and ‘engaged academics’ (a methodology discussed in Chapter 2) is that focusing on the problem, rather than the discipline, provides an opening for the various disciplines to make their contributions in response to the problem. This process encourages contributors to think about the problem rather than the discipline-specific ways those different perspectives address a problem. Most of the problems of modern governance – and certainly the ‘wicked’ problems – are no more open to solution by one discipline than they would have been under Smith and Bentham. (I note that there is a possible corollary, or at least generalization, that the problems that need only one discipline to address are generally problems created within the discipline.)

This approach might mean that the practical problems indicate the necessary unity of the disciplines – a unity that is exposed gradually as each new problem is addressed. In this way, the problems and solutions shine light on different areas of a common discipline that is gradually seen as a whole. On the other hand, it might not turn out quite as well-ordered as this implies. Any transdisciplinary wholes may be as limited as the disciplines they transcend. If I were a Hegelian, I might even propose a dialectic process. But I am not a Hegelian. Indeed, I took time out (in the 1994 essay reprinted here as Chapter 2) to deride Fukuyama’s astonishing embrace of a form of Hegelianism beloved of Marx in the year that communism collapsed. Marx thought that communism would be the end of history: Fukuyama thought that a particular form of neoliberal capitalism in which most issues were resolved through the operation of markets rather than democratic institutions was the end of history. I had always thought that Marx’s claim was foolish and Fukuyama’s more so, given that the latter was in a position to learn from the exposed foolishness of the former.⁷

The fact that these thoughts were delivered in my inaugural lecture as Foundation Dean and Professor of Law might indicate that it was obvious that my dancing around the vortex was bound to take place within a law school. However, the fact that my interest in the vortex developed out of ideas I first penned in a philosophy department in 1990,⁸ indicates that the question of where to dance was a significant one.

The search for a suitable dance floor: law thrice denied

While I was sure that I wanted to learn the complex steps of my ‘vortex dance’ through an Oxford DPhil, I very much doubted that I could find space for this dance in law schools. Indeed, I did not see much point completing my law degree. While the Melbourne Law School (and others like it) were happy for its students to amuse themselves with other disciplines in other degrees, it was on the clear understanding that they did not bring any of that with them back into law lecture theatres. One of the most explicit statements of this was by Professor Colin Howard who taught Advanced Constitutional Law. He reportedly started his first class with a statement that the subject was about law (not politics) and any students who attempted to include politics in their exam answers would fail. Other lecturers had seen far too much of The Paper Chase, a movie and TV series set in Harvard. Each episode started with the formidable Professor Kingsfield stating that he took young minds that were full of ‘mush’ and sent them out thinking like lawyers. He did this by what was called the ‘Socratic method’, in which he interrogated students until they came up with the right answers.⁹ No doubt the ideas Kingsfield’s students gleaned from their undergraduate degrees were rigorously extirpated. There were a number of would-be antipodean ‘Kingsfields’ who sought to terrorize Australian law students and ensure that the ‘right answer’ was not seen to include the ‘mush’ that they were simultaneously learning from the eminent philosophers and political scientists teaching in other rooms.¹⁰

Of course, there was one subject in the law degree that did consider what other disciplines might say about law – jurisprudence. It might be seen as the remnant of the common intellectual space that preceded the separation of disciplines referred to above. In this one subject was corralled all the insights about law that had been developed by philosophers, political scientists, sociologists (and, in other universities, economists and anthropologists) – and by law professors who rubbed shoulders with them. But very few lecturers either sought to apply such insights in the ‘substantive’ subjects or welcomed attempts by students to do so.¹¹ The other place where those disciplines could be mixed with law was in ‘Legal Studies Departments’ in other universities, which were derided for doing so. The admixture was seen as the reason why such universities could not confer degrees that entitled graduates to practice.

Despite this lack of interdisciplinary teaching, the burden of completing three more law subjects in three years was trivial and did not slow my progress in the other disciplines that mattered to me and in which I was encouraged to synthesize. However, as I was getting ready to apply to Oxford in 1975, one of my mentors¹² gave me some unexpected advice that ended my first attempt not to be a lawyer. He urged me to finish my law degree before I went to Ox...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Notes on contributors
• List of cases
• Acknowledgements
• List of abbreviations
• 1 Dancing around the vortex: a personal introduction
• PART I Legal education, theory and ethics
• PART II Australian law schools after Pearce: a case study in educating critical, theoretical and ethical lawyers?
• PART III Legal ethics: opportunities and challenges in education and practice
• PART IV Legal ethics in a globalizing world
• References
• Index