Subversive Legal History

A Manifesto for the Future of Legal Education

Russell Sandberg

• Publisher: Routledge
• Year: 2021
• ISBN:
  9780429575495
• Edition: 1
• Topic: Bildung
• Subtopic: Lehrpläne

Provocative, audacious and challenging, this book rejuvenates not only the historical study of law but also the role of Law Schools by asking which stories we tell and which stories we forget.

It argues that a historical approach to law should be at the beating heart of the Law School curriculum. Far from being archaic, elitist and dull, historical perspectives on law are and should be subversive. Comparison with the past underscores: how the law and legal institutions are not fixed but are constructed; that every line drawn in the law and everything the law holds as sacred is actually arbitrary; and how the environment into which law students are socialised is a historical construct. A subversive approach is needed to highlight, question, de-construct and re-construct the authored nature of the law, revealing that legal change on a larger scale is possible. Far from being archaic, this recasts legal history as being anarchic.

Subversive Legal History is not a type of Legal History but is its defining characteristic if it is to be a central part of Law School life. It describes a legal method that should not be the preserve only of specialist legal historians but rather should be part of the toolkit of all law students, teachers and researchers.

This book will be essential reading for all who work and study in Law Schools, proposing a radical new approach not only to the historical study of law but also to the content, purpose and ambition of legal education. A subversive approach can revolutionise Law Schools providing a more ambitious legal education which is grounded in the socio-legal reality, helping to ensure that today's law students are better equipped to be the professionals and citizens of tomorrow.

1 The Trouble with Law Schools

Everything law students think they know is a lie.

Law Schools are strange places.

From day one of their degrees, law students in England and Wales have a different experience compared to other students. The sources and materials they draw upon are unique. Authority is unquestionably attributed to primary legal materials: legislation and the reported decisions of senior courts. These materials are alien to outsiders. As William Twining noted of the Law Library, ‘there is probably no branch of the humanities and social sciences that at first sight seems less user-friendly to the non-specialist’.¹ Moreover, the way in which law students use their materials is distinctive: their quest is not to read books from cover to cover but to consult them, more like a detective than a scholar. As Twining put it, law is ‘a participant-orientated discipline’: law students are constantly reminded of the practical impact of their subject and are forced to make decisions.²

Law Schools are dangerous places.

Throughout their degrees, law students are socialised into thinking differently. It is often asserted that law students do not study methodology, but this is nonsense. First year law modules induct students into legal method: how to interpret and use legal doctrine. The study of doctrine quickly becomes a form of indoctrination. Law students learn not only how to use but also how to respect authority and how to operate within the world of law. Students are trained that their role is to systematically present and apply the law. Their role is also to critique the law but, crucially, this is only within law’s own terms. As Lord Goff noted extra-judicially:

The prime task of the jurist is to take the cases and statutes which provide the raw material of the law on any particular topic and by a critical re-appraisal of that raw material, to build up a systematic statement of the law on the relevant topic in a coherent form, often combined with proposals of how the law can be beneficially developed in the future.³

1 William Twining, Blackstone’s Tower: The English Law School (Sweet & Maxwell, 1994) 195.

2 Ibid 130.

3 Lord Goff of Chieveley, ‘Judge, Jurist and Legislature’ (1987) 2(1) Denning Law Journal 79, 92.

Law students are taught to ‘think like lawyers’ and employ reasoning and interpretative skills that are different from elsewhere in the academy. This does not mean that these are less demanding skills. Systematising the law involves sophisticated interpretative tools and critical techniques employed to evaluate the coherence of legal discourse and proposed legal change.⁴ Yet, as Anthony Bradney has argued, doctrinal legal study (defined as ‘attempt to explain law solely through the internal evidence’ provided by primary legal sources) leads law students not only to ‘assimilate’ but also to ‘accept the values of the community that they are studying’.⁵ At first, these ways of seeing are ‘at odds with what law students have previously experienced and continue to experience outside their studies’. However, throughout the law degree what was once odd becomes normalised. And certain questions and ways of looking become excluded from the law student’s gaze. As Bradney put it:

doctrinal study explicitly identifies questions outside the doctrinal range as being something not relevant for the doctrinal student. It implicitly devalues such questions and treats them as not being worthy of consideration within the precise, objective word of the law school.

As the US scholar Robin L West pointed out, the argument ‘is not that law schools instil an overly acquiescent attitude toward existing law – far from it’.⁶ Rather, the argument is that ‘law students and lawyers are trained to identify certain kinds of problems’. They are taught to spot gaps in the law rather than looking at the issue ‘on a systematic or structural basis’. Law students are not ‘taught to think in a proactive way about problems of social justice and whether law might be part of their solution’.⁷ West noted that ‘legalism’, ‘the moral way of being into which students are accultured while in law school’, led ‘to the common complaint that law school renders law graduates amoral’.⁸ Bradney has gone as far as to say that in order to ‘become a law student the student must forget who he or she is’.⁹

4 Douglas W Vick, ‘Interdisciplinarity and the Discipline of Law’ (2004) 31(2) Journal of Law and Society 163, 179.

5 Anthony Bradney, ‘Law as a Parasitic Discipline’ (1998) 25(1) Journal of Law and Society 71, 79, 73, 76.

6 Robin L West, Teaching Law: Justice, Politics and the Demands of Professionalism (Cambridge University Press, 2014) 114.

7 Ibid 115.

8 Ibid 64. For a classic statement (also in a US context) see Duncan Kennedy’s pamphlet ‘Legal Education and the Reproduction of Hierarchy: A Polemic against the System’, first self-published in 1983 but republished with critical commentaries: Duncan Kennedy, Legal Education and the Reproduction of Hierarchy: A Polemic against the System (New York University Press, 2004).

9 Anthony Bradney, ‘Law as a Parasitic Discipline’ (1998) 25(1) Journal of Law and Society 71, 77.

The content of a law degree is more consistent between universities than the content of other humanities or social science degrees.¹⁰ The main modules studied are invariably uniform: the core modules present the common law, focusing on the law of obligations, property and public law; there are then a number of optional but now well established modules that have much more specific focuses, dealing with areas that are perhaps more recognisable to the non-lawyer or in practice such as family law, employment law and commercial law; and finally there are the more idiosyncratic modules, which take a variety of forms – some theoretical, some comparative, some with non-legal components, some with a clinical or legal practice focus – and which, although they are far more common than they once were, nevertheless remain exceptional. A law degree without tort, trusts or contract is unheard of. And even the content of such modules is remarkably similar, thanks to the tyranny of the textbook tradition.

For each of the main modules (core and optional) on a law degree there are shelves after shelves full of textbooks, all with similar if not identical contents. These justify and perpetuate the content of the law degree. The focus is typically on the doctrinal exposition of legal rules.¹¹ As Rosemary Auchmuty has noted, ‘most of us are content if, by the end of the module, our students can apply the correct law to the facts of a problem question and give competent advice’.¹² And this doctrinal exposition of rules is more often than not presented as an objective fact. It is forgotten that it is actually an interpretation. The law degree as a whole and the modules that make it up provide a story of the law: a story about the role, nature and place of law. The textbook tradition conceals this. This means that the law student does not ask what or whose story is being told. The assumptions, presumptions and biases in the story are not acknowledged, let alone questioned. It is not appreciated that law’s story is authored, subjective and contestable. The stories of law are presented in a linear and straightforward manner. The textbooks are full of progress narratives whereby the law has come to the rescue, has rationalised itself and has found the answer. The story is invariably how the law, though not perfect, has improved and that further improvements along the same course are desirable.

10 For a historical discussion see Susanna Menis, ‘The Liberal, the Vocational and Legal Education: A Legal History Review – From Blackstone to a Law Degree (1972)’ (2019) 54(2) The Law Teacher 285.

11 There are exceptions, most notably the Law in Context series published by Cambridge University Press. However, these are mostly used as a supplement to the doctrinal texts and vary to the extent to which they include non-doctrinal perspectives. They typically adopt a socio-legal approach rather than a historical one but for a notable exception see Alan Norrie, Crime, Reason and History: A Critical Introduction to Criminal Law (3rd ed, Cambridge University Press, 2014).

12 Rosemary Auchmuty, ‘Land Law and Equity and Trusts’ in Caroline Hunter (ed) Integrating Socio-Legal Studies into the Law Curriculum (Palgrave, 2012) 69.

The authors of the story of the common law are invariably white, male, conservative and middle class. They systematise the law from that vantage point, with their own expectations and own values. These set the standards, the criteria against which the progress of law is measured. More so than most other academic disciplines, law is shaped by the culture and expectations of practice and of a legal profession that predominately shares certain cultural values.¹³ Although most Law Schools can be found geographically within university campuses, the cultural and political influence of the legal profession is significant. Many law students apply to Law School with the intention of entering the legal profession, though far fewer actually do so. The requirements of regulatory bodies shape not only the content of the law degree but also how it is taught.¹⁴ While it is true that Higher Education in general does not serve as an apprenticeship for becoming an academic, it is arguable that law students are taught to think more like lawyers than like scholars as shown, for example, by the significance attached to problem questions in assessments.

Law Schools continue to be torn between being vocational and academic.¹⁵ Their location within the University has meant that Law Schools have been subjected to the same expectations as other parts of the University. Increasing general pressures facing universities have pushed Law Schools in a number of competing, often contradictory, directions.¹⁶ Escalating tuition fees have led to Higher Education being seen as a market with students as consumers with expectations of individual consumption of content on demand.¹⁷ At the same time the scholarly pursuit of knowledge has been reduced to the need to show evidence of quantifiable outputs and results with overriding emphasis being placed upon the impact of research as the manifestation of its worth. However, the Research Excellence Framework and its predecessors, for all their bureaucratic and other ills, have led to an increased focus on and sophistication of research in Law Schools.¹⁸ Research has become more central to Law Schools...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• 1 The Trouble with Law Schools
• 2 The Problem with Legal History
• 3 Subversive Legal History
• 4 The F in Feminist Legal History
• 5 The Perils of Periodisation
• 6 Counterfactual Legal History
• 7 The Parallel World of Legal Geography
• 8 We Are all Legal Historians Now
• Afterword
• Index