Legal Education’s Squashy Foundations

My subject is the result of a compromise. I wanted to discuss the awful—and I mean awful—state of legal education in this country. The organisers of this conference wanted me to talk about the teaching of human rights in Australian law schools. The compromise is that I’m going to do a bit of both.

But first let me digress briefly and tell you about the International Criminal Court. The University of Queensland law school where I work attracts the best-performing school students in Queensland. Well, we share the cream of the crop with our medical school. You have no hope of entry if your school marks are not well inside the top 2 per cent or so. By the end of their degree a significant percentage of these students will think that the best thing they can do with their lives is to go and work for or with the International Criminal Court. This is the body set up to prosecute dislodged dictators and others for genocide and war crimes and the like. The ICC receives incredible amounts of money: $152 million in 2015 alone. And yet it has only ever had two successful prosecutions. And only black people have ever been indicted—thirty-six of them.

Is it on balance worth having an International Criminal Court? Maybe. It certainly sends a signal to those in power that they cannot rely on their own domestic laws—and on the defence used at Nuremberg that “it wasn’t against the law when we did it”. You can’t rely on that because now what you’ve done—if it is horrific enough—will be against international law.

But of course nothing is free in life. Dictators and hard men around the world know all this. They know about the ICC. In the past you could (and in fact we did) negotiate with Idi Amin to get him out of power in Uganda with the promise of a beachside retirement in Saudi Arabia for the last couple of decades of his life. Awful for the relatives of his myriad victims, no doubt; but good for the future prospects of Uganda. Today you can’t make that deal because they all—Assad and Mugabe and all the rest of the world’s nasty strongmen—know that they will be pursued and prosecuted by the ICC. So they have no choice but to go down fighting.

Now if you’re a consequentialist like me, that counts as a big cost to pay for having an ICC. I don’t say it’s a knockout argument. If pushed I would say it’s a razor-edged question whether to have an ICC. I certainly would not see working at the ICC as the equivalent of doing God’s work—as the most moral way I could spend my working life. And yet many top law students do see the world that way. That’s how they’ve been taught to think about rights and, more particularly, human rights. They learn to think about them in very non-consequentialist terms; call it deontological or natural-law thinking, or pseudo-theological.

And if that sort of thinking is not as regards the ICC, then it will perhaps be as regards the rights-infringing resolutions flowing from the United Nations Human Rights Council. These resolutions will be the mark of good and bad human rights conduct for them—with hardly a law student being aware that the UNHRC and UN General Assembly have issued more resolutions alleging rights-infringing conduct against Israel than against all other countries on earth, combined. That, and other factors such as some of the God-awful countries that in part make up this UNHRC, make it a joke of a body. But not to most law students.

This is the edited text of a paper that James Allan, Garrick Professor in Law at the University of Queensland presented to the Samuel Griffith Society in July

And if it’s not the ICC or the UNHRC, well, maybe the law student’s goal will be to work for some UN committee overseeing a rights-related convention. The thought that a democratically elected legislature full of politicians (and in law schools you can’t say the word politicians without sneering) might have as good a grasp on what is rights-respecting conduct, dare one say a better grasp, than some UN functionary (chosen to represent a country from whose leaders you wouldn’t take moral advice if your life depended on it—and people who, as UN employees, pay no income tax), or some un-elected and so unaccountable ex-lawyer judge, or some supranational European Union bureaucrat—well, that pretty much doesn’t enter the heads of far, far too many law students in this country. Or the law professors teaching them, for that matter.

Too many of our law students have a grasp of human rights that looks like a video made by GetUp! But before you get too down on the students for succumbing to the GetUp! worldview, you could say pretty much the same thing about the High Court of Australia’s prisoner voting case in Roach—a more flabbily reasoned, argument-in-the-service-of-an-agenda case it is hard to find. Well, unless you look at their next voting rights case of Rowe, which Professor Anne Twomey picked as the worst-reasoned and least convincing High Court of Australia case ever. And one’s understanding of rights was not wholly peripheral to that decision.

But enough of this introductory stuff. Let me turn to the problems in this country with university law schools before moving back to the teaching of human rights. To get you in the mood to hear about universities let me tell you a joke that should resonate with anyone who works in a university and is judged on the calibre of his or her peer-reviewed publications. It goes like this: “A peer reviewer walked into a bar and immediately started complaining that this wasn’t the joke he would have written.”

Our universities are so centralised that professors, including law professors, get told how much we must assess students. I am under immense pressure to record my lectures, and most UQ lecturers do this already under orders, as is the case widely across the country. Why? Because so many of our law students work. They are supposedly doing a full-time degree and yet they work downtown in law offices three, even four days a week. That is a core reason why the expectations for our law students are way, way lower than in Canada, the US and Britain where being a full-time student means being a full-time student (with maybe a bartending job one night a week). You can’t study much when you’re working three or four days a week for a law firm.

Law firms, then, are partly to blame for this phenomenon. Some judges give students law clerk jobs before they have finished their degrees, so they are to blame too.

Then there is the fact that we have so many law schools for the size of the country. It was forty-two or forty-three law schools at last count—and thirteen in New South Wales alone! To put that in context, in English Canada (about 27 million people or so) there are seventeen law schools, most of which take only 150 to 180 students per year. In Australia QUT and Monash each takes over a thousand students a year. Per capita we now turn out more law graduates than the US. That is surely the way to achieve the Turnbullian “innovation” revolution dream—by flooding the country with lawyers.

These law schools all exist in a wider university that is too centralised, too regulated, too one-size-fits-all, and too top-down. We are also supposed to pretend that all the law schools in the country are more or less equal. This is a lie. Some are awful. Even the best law schools in Australia are not as good as Otago’s in New Zealand, and not nearly as good as the best ones in Britain, the US or even Canada.

And now I should move back to the topic of teaching human rights. In the Brisbane area we have four or five main law schools. The quality varies distinctly, at least if you go by the calibre of school student who gains entry to them. In 2015 we had a senior partner from a big Brisbane firm come to our law school and say that all student applications for jobs were now taken by his HR department and the name of the law school was blacked out. You could only see their grades. This is the weirdest sort of “equality” mindset I have ever encountered, with the exception of the judgments flowing from the European Court of Human Rights. This law partner had an LLM from Harvard, which he advertised in his promotional bio. So I asked him why he mentioned Harvard. Did he think the Harvard LLM was better than one from the University of Arkansas or the University of Vermont? Why didn’t he just list his grades? He was more or less speechless.

Unless you believe that school marks are completely meaningless, then this example shows a bizarre sort of genuflecting at the altar of some mutant understanding of egalitarianism and equality. UQ takes in about 300 students, virtually all of whose school marks are better than the very top student at the next university down the Queensland hierarchy. On what planet does it make sense to redact the name of the law school and just look at marks? Is this law partner someone you would want giving you legal advice? At least he saw the point with his LLM and I’m told that this law firm has now stopped this idiotic practice.

Let’s go back to all those students hoping one day to work for the ICC. This is part and parcel of how the supranational human rights world is taken at face value as a force for moral goodness. Remember, in the last thirty years or so the teaching of law subjects that might plausibly fall under the aegis of “human rights related” has mushroomed. Disability law, public international law, anything to do with bills of rights, or discrimination, or women and the law—the list goes on.

Meantime the number of law schools that teach a compulsory jurisprudence course can be counted on one hand, mine being one of those disappearing few. Yet this is the course that should teach students that rights are correlated to duties and the two are connected by rules; that there are legal rules and non-legal rules, so legal rights and non-legal rights; that non-legal rights, and the whole natural-law tradition, sits on pretty insecure foundations; that bills of rights finesse that legal versus non-legal rights distinction, allowing the point-of-application interpreters (but no one else) to transmogrify one of their own personal “oughts” into an “is”—to make a non-legal “ought” become a legal “is”.

Alas, the vast preponderance of law students in this country finish their degrees without reading Hohfeld, or Hart’s The Concept of Law (which every educated lawyer should have read). They get almost no exposure to serious writers on the foundations of non-legal rights. A lot of law school human rights courses start with an understanding of human rights that can be put quite simply. On this approach you just ignore the issue of foundations as far as possible. The thinking here goes like this: If a commitment to fundamental human rights is the foundation of political legitimacy, then we just have to assume such human rights (whenever we stray into the non-legal realm) actually exist. Or as the US law professor Steven Smith puts it, without in any way endorsing such an approach, and in regards to the related issue of equality:

Just as in one kind of philosophy elusive but indispensable things like causation, time, space and continuity of personal identity are not so much observable facts in the world as commitments or categories we bring to and impose on the world, so equal moral worth is a starting point or necessary presupposition that we assume in order to deal with the normative and political world as it is. That presupposition need not be justified … on any other grounds.

I call this the Eleanor Roosevelt school of human rights thinking—where you just pretend that every­thing starts with the Universal Declaration of Human Rights, sweep all the hard questions under the carpet, and go from there. Of course if you do that you will be inclined to see the United Nations as a font of moral goodness. And you’ll be predisposed to favour supranationalism over the hard and dirty work of compromise and winning elections that comes with “democracy”. And if in the international rights-related legal world they haven’t much time these days for a vigorous approach to free speech, then the students and their professors won’t either.

Let’s be honest. On any halfway decent understanding of so-called human rights—their foundations, aspirations, weaknesses and strengths—you have at least to have a basic understanding of the debate in meta-ethics between the moral realists and the non-cognitivists or moral sceptics. And between consequentialists and deontologists. In Australian law schools there’s not a lot of that understanding.

Pick a law student at random and ask him or her what a right is. It’s a hard question. Many law school courses just assume human rights are self-evident. So the law professor can move on with satisfying armchair work of assuming the decisions of the European Court of Human Rights will, if implemented, make the world better; or take it as read that the view of human rights held by unelected judges or by the members of some UN committee are by definition the “right” view—better than yours, or a mere teacher’s or plumber’s or MP’s. Before you know it, you end up with some such committee making the sort of idiotic assertions about rights and allegations of false imprisonment that they made about Julian Assange.

All of us living in the post-Second World War Anglosphere are living through an era that is seeing the rebirth of the dominance of a natural-law worldview. For 150 years before that it was Benthamite consequentialism that dominated, arguably even in the US (just look at Justice Oliver Wendell Holmes). How many law students know that J.S. Mill was a utilitarian, a disciple of Bentham? Or that Mill’s defence of free speech was through and through a utilitarian one? Is it any surprise they don’t have much concern for free speech? As for our current era’s dominant worldview, it would do all law students well to understand its strengths and weaknesses; its inherent distrust of democracy; and what can plausibly claim to be its foundations.