Why bother with legal history?

why both with legal history

The revised Australian legal syllabus, the ‘Prescribed areas of knowledge’ (also known as the ‘Priestley 11’), comes into effect in 2021. One of the interesting inclusions in the revised list is that almost all subjects now include an expectation that law teachers include discussion of the subject’s ‘historical and social context’. But why? If law school’s purpose is to make graduates ‘job-ready’, who cares about legal antiquities? Why bother with legal history?  

What’s a Priestley?

The Priestley 11 is, as the name suggests, a list of 11 subjects with a summary of the content the Law Admissions Consultative Committee expects law schools to include.  The Committee (sometimes called ‘the Priestley Committee’ after its original chair) publishes the Priestley 11 as indicative. But most Australian admitting authorities adopt it as a prescribed list of subjects that every law student must pass.

As a result, most Australian law schools embed the Priestley 11 in their law degree. They will also use the suggested content as a prescriptive list of subject areas. That’s all incredibly sensible if they want their graduates to be able to be admitted as lawyers. It also tends to provide a certain level of consistency between law degrees. 

Historical context?

The first list of academic requirements appeared in the late 1980s. Apart from one or two edits here and there, the Committee hasn’t changed it until the most recent review.  And it didn’t have a single reference to history.

Law teachers included a little bit of Australian legal history in introductory courses. But it competed with all the other expectations on first-year courses like teaching students how to research and write.  Depending on the law school, there might also be a theme of socio-historical influences woven into Priestleys. But, again, it competed with other expected content. Alternatively, law schools included a unit on, or including, legal history as an elective.

Including an explicit reference to ‘historical and social context’ means that a discussion of why the law has developed in the way it has is no longer an ‘also ran’ – it’s part of the curriculum and syllabus. The Committee and, consequently, admitting authorities will expect to see it included in course outlines and content. And good unit design means that it should also be assessable.

That doesn’t mean the Committee’s decision to include it was universally popular. The Legal Profession Admission Board in NSW took issue with the review generally. But it also questioned whether including social and historical context left time for other content. That is, existing content (where it doesn’t already include social and historical material) is more important. The Committee posted the Board’s comments (confusingly still marked as ‘draft’), and its slightly terse response. Interestingly (and I have to agree), the Committee pointed out that if relationships with Aboriginal and Torres Strait Islander Peoples weren’t already taught in constitutional law then ‘what is taught is seriously out of touch with current pedagogical practice’. 

But why bother with legal history?

The Board was at least right in pointing out that maybe the Committee could have published more explanation about why it included new things. But that doesn’t mean it’s a dangerous development. And it presents some exciting opportunities across the curriculum. 

It’s already being taught … and if it isn’t, it should be

As the Committee points out, law teachers are already teaching the social and historical context in which law develops and operates. Ignoring the historical development of the relationship between Anglo-Australian law and Aboriginal and Torres Strait Islander Peoples is, frankly, dumb. Even if we accept that law school makes law students job-ready, understanding how (at the very least) property and criminal law recognise (or fails to) Aboriginal and Torres Strait Islander Peoples and the practical effect on today’s law is essential across all sorts of areas of legal practice. 

Law school isn’t just a trade school    

Lots of law students join law school, hoping to become lawyers. But we also know a lot don’t want to be lawyers, or maybe never become lawyers. As the Threshold Learning Outcomes for Australian law schools point out, the expectation of law schools is greater than just producing law clerk drones. And, if we’re honest with each other, it has been for some time.

I’m not claiming some type of special status for law. Teaching professional skills was part of the Australian legal education landscape even before Federation (and even before university-based law degrees). Not everyone agrees on what professional skills encompass. But there is some consistency around approaches to problem-solving that acknowledge the broader context within which the problem arises. Whether that means solving humanity’s problems (as suggested by the Martin Committee back in the 1960s), a community’s problems, or an individual’s problems, there’s an emphasis on understanding more than just the applicable statutory provision. And that includes how the law got to where it is now.

It underlines the importance of current obligations and events

Acts regulating the legal profession in Australia use ‘officer of the court’. It also appears from time to time in US materials as well. It’s something that, as practising lawyers, carries weight and meaning in terms of our relationship to the court and to one another. It also sometimes gets used to underline the seriousness of a lawyer’s misconduct.

But what does it mean? And why is it so important?  In short, it’s the history of the thing. The accumulation of 400-odd years of legal tradition and practice inform the idea. That doesn’t mean it’s always right, but understanding something of the history is just as crucial to critiquing an idea as it is to support it.

The same observation can be applied to other ideas, concepts and laws. History often provides the power and persuasive force behind a modern argument.

It’s a vehicle to develop other skills

Social and historical research necessarily involves a broader range of skills in research and writing than Austlii and IRAC. It also necessarily brings with it exposure to multi-disciplinary perspectives and abilities. In the context of young lawyers being aware of the wider context within which problems arise, examining social and historical contexts allows them to explore those skills and perspectives.

But even from the perspective of existing pedagogies, encouraging an examination of issues in the standard research essay from one or more different perspectives provides the vehicle to improve and reinforce research skills.

History is the future of legal practice

But let’s accept for a minute that law school’s purpose is to make graduates ‘job ready’. What are those jobs going to look like?  There is an increasingly large body of literature out there telling law teachers that the traditional drafting roles of lawyers are disappearing.  Technology is stepping in to perform repetitive and simpler tasks, including providing legal advice in the form of answers to simple questions.

In another post, I wrote about the current predictions for new lawyers entering the profession, and the expectations on them.  The expectation (or opportunity depending on who you talk to) is that clients expect lawyers to provide more complex advice that addresses more than just the law. That advice extends into things like planning, strategy and risk management. That is, looking to the future.

When Langdell developed his case book method, one of his objectives was to try to predict future behaviour based on precedent. In other words, to use history as a means of predicting or influencing the future. At its core, that’s the role and purpose of the common law. So why should we be worried about making a discussion of history explicit?

Bother with history

So why should we both with legal history? It’s part of what Australian law teachers already do (or should do). But it is also directly relevant to the broader range of skills graduates will need now and in the future.

     

About Andrew Henderson

I am a law school teacher in Canberra and a PhD candidate at the Australian National University, researching the 'hidden' or informal curriculum of law school. I am passionate about developing engaging and authentic educational experiences for law students.

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