Sydney • London
Anthony O’Donnell
The Centre for Employment and Labour Relations Law, Faculty of Law
and the Centre for Public Policy, Faculty of Arts,
The University of Melbourne
Richard Johnstone
The Centre for Employment and Labour Relations Law, Faculty of Law,
The University of Melbourne
Sydney • London
Telephone: (02) 9918 2199 Facsimile: (02) 9973 1223 Email: info@cavendish.aust.com
URL: http://www.cavendishpublishing.com
© O’Donnell, A and Johnstone, R 1997
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Australia Cataloguing in Publication Data O’Donnell, Anthony
Developing a cross cultural law curriculum
1. Law – Study and teaching 2. Curriculum planning
I. Johnstone, Richard II. Title (Series: Legal education series (Sydney, NSW)) 340.071
ISBN 1 876213 31 0
Printed and bound in Great Britain
This is a book about law and culture. Much reflection on ‘multiculturalism and the law’ in Australia presumes culture to be something which other, non- Anglo Australians have, and thus something that the law and lawyers should
‘make allowance’ for. A consequence of this approach is that cross-cultural perspectives become a mere ‘add-on’ to existing core courses, or are relegated to specialist electives. In contrast, this book aims, in the words of Dick Hebdige, to send ‘our curiosity about the otherness of others back home where it belongs’.1 It is about how Australia’s dominant forms of legal regulation are contingent, racialised and inescapably cultural commodities themselves. We wish to make the case, then, that cross-cultural issues are central to the purposes of legal education. In doing so, we accept the syllabuses and much of the content of core law subjects as given, but attempt to rethink those subjects as embodying cultural and social categories, as having both a history and a potential for transformation.2
Nonie Sharp, in her account of the Murray Islanders’ land case, speaks of cross-cultural reflection as the ‘consideration of multiple perspectives’:3
[I]t creates ruptures in the fabric of meaning systems in such a way that one can glimpse the other side – a side that did not appear to be there before – so offering the beginnings of new ways of seeing.
The question of what might count as a useful schooling in a time of rapid global change is still up for discussion. Nevertheless, Sharp’s comment suggests to us that the importance of cross-cultural reflection is at least fourfold. It allows students to appreciate how Australian legal institutions and doctrines reflect culturally specific concepts and so appear alien and inadequate to many in our culturally diverse society. It may also in turn produce lawyers with a sense of openness, humility and compassion. On a further level – as Nonie Sharp’s book itself shows – such ‘new ways of seeing’
relate to current issues of entitlement and justice for Aboriginal and Islander
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1 Hebdige, R, ‘Foreword’ in Michaels, E, Bad Aboriginal Art: Tradition, Media and Technological Horizons, 1994, p xix, Sydney: Allen & Unwin.
2 A similar project to ours, on introducing gender issues to the core law curriculum, in contrast took a thematic approach, recognising that the existence of doctrinal categories may work to exclude a wide range of problems from legal analysis. This is particularly true of those problems arising from the experience of groups who historically have not contributed to the formation of those categories, in particular women and, we would add, people from minority cultural groups: see Graycar, R and Morgan, J, Work and Violence Themes: Including Gender Issues in the Core Law Curriculum, 1996, Canberra: DEET; Graycar, R and Morgan, J, ‘Legal Categories, Women’s Lives and the Law Curriculum, Or, Making Gender Examinable’ (1996) 18 Sydney Law Review431.
3 Sharp, N, No Ordinary Judgment: Mabo, the Murray Islanders’ Land Case, 1996, p 18, Canberra: Aboriginal Studies Press.
peoples and migrant settlers. Finally, and by no means least, such reflection is an essential component of university education as an interpretative, critical and ethical activity.
Over the 12 months we spent thinking about and writing this book, two things happened which further impressed upon us the necessity of ‘new ways of seeing’. First, the debate on immigration in Australia was reopened on explicitly racialist grounds, thanks to a parliamentary speech by the newly elected independent member for Oxley, Pauline Hanson. Much of the ensuing debate over racism (at the elite level, not necessarily at public meetings or in the letters pages of the metropolitan dailies) has been conducted with an eye to our regional Asian markets and rarely gets beyond the discourse of marketing and sales psychology.4A far greater proportion of Hanson’s speech was devoted to attacks on indigenous Australians than to immigration policy;
that these attacks did not invite the same level of condemnation as her remarks on immigration suggests that white Australia still has some way to go toward genuinely valuing cultural diversity and reacting to the demands of justice and equity.
Secondly, higher education in Australia sustained the latest in a long line of attacks over the last 10 years that has seen both the sciences and humanities reconceived as mere servants to the ever-increasing global circulation of commodities and the growth of the GDP. For teachers interested in critical approaches that attempt to question the taken-for-granted assumptions of social life, or that attempt to enact an ethical commitment to the least advantaged, the atmosphere is decidedly chilly.
In this context, it was refreshing and encouraging to be supported in this work at the University of Melbourne Law School and to know it was just one of many such projects being conducted in law schools across Australia. As a contribution to a wider pool of knowledge, it is necessarily exploratory, partial, idiosyncratic, provisional. It does not offer foolproof methods but rather attempts to provoke creative ways of thinking and learning about culture and difference, race and ethnicity, and the possibilities for justice in a diverse community. Its knowledge will be superseded; we say this hopefully, as others, both inside and outside Australian law schools, are better placed than we are to carry on the research into the areas highlighted here. We hope we have shown both the possibilities and necessity of such continuing work.
Finally, this book is less about a revolutionary overhaul of the curriculum than alerting teachers to possibilities lurking in present syllabuses: the case law, critical commentaries, research and narratives that sometimes need to be
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4 See Morris, M, ‘The Very Idea of a Popular Debate (or, Not Lunching with Thomas Keneally)’ in Hage, G and Johnson, L (eds), Republicanism, Citizenship, Community, 1993, p 166, Nepean: University of Western Sydney, referring to the similarly barren debate over
‘The Republic’ as championed by Paul Keating.
dragged out of the footnotes of mainstream texts and made headline news for students and teachers alike.
Chapter One explores in more detail the problems and potential of talking about culture, race and ethnicity in the context of settler societies such as Australia generally and in legal education in particular. The remaining chapters deal with the core law subjects of equity, property and torts, suggesting critical frameworks, pinpointing some key cases, texts and readings and offering a range of learning activities. Each of these subjects has its own particular history that has shaped its syllabus, its place in the law curriculum, its standing amongst students, and so each offers a different set of opportunities which we attempt to explore.5
Overall, the approach is underpinned by two propositions. First, that in exploring relations of difference in Australian legal culture, students and teachers will learn most if they take the perspective of those most disadvantaged by those relations. Secondly, and related to this, the proper aim of cross-cultural education is in fact to interrogate and critique the privileges enjoyed by the dominant culture.
Work on this book was made possible by a grant from the National Priority (Reserve) Fund of the Commonwealth Department of Employment, Education and Training. Of course, two white guys sitting around talking about cultural diversity will not get very far unless their conversation is joined by many other voices. This book in particular builds on the insights of a group of teachers at the University of Melbourne Law School whose diverse teaching and professional experience guided the project through its principal subject areas: Sarah Biddulph, Ian Malkin, Wayne Morgan, Lisa Sarmas, Daniel Stepniak and Maureen Tehan. We were lucky to work with teachers who remain committed to the aims and purposes of critical legal education in general and cross-cultural reflection in particular.
A number of other colleagues at our own law school and from around Australia were generous with their time, resources and ideas. In particular, we thank Greta Bird, Sean Cooney, Belinda Fehlberg, Rosemary Hunter, Lici Inge, Robert Lachowicz, Ainslie Lamb, Kathy Laster, Jenny Morgan and Murray Raff. Emily Johnstone and Sophie Kosmidis at the University of Melbourne Law Library chased up hard-to-get books and articles. Gill Freeman of the Ecumenical Migration Centre and Maria Dimopoulos of the Domestic Violence and Incest Resource Centre also shared their insights and experience of cross-cultural education and Jacqueline Coleman made available the resources of the now, sadly, defunct Bureau of Immigration, Multicultural and Population Research library in Melbourne.
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5 Because we draw on our experience of the curriculum at the University of Melbourne Law School, ‘property’ principally means real property or land law, and ‘torts’ is limited to personal injury law.
This book, and the books in the series of which it is part, would not be published without the support of the Dean of the University of Melbourne Law School, Professor Michael Crommelin, who has been prepared to allocate financial resources to this Legal Education Series in a time of economic stringency. We are also grateful to the members of the editorial board which has oversight of the series for the comments on an earlier draft of this book.
Finally, Jo Reddy of Cavendish Publishing must be thanked for her enthusiasm for this project. Parts of Chapter One have appeared in different form in 7 Legal Education Review, 1996.
One of the academic’s surest tools for erasing difference and denying the positioning of intellectual work is to speak in the first person plural, with its common-room cosiness, its unquestioned assumption of shared interest and background. Here, in a book devoted to explorations of difference, the use of
‘we’ refers to the fact of joint authorship and nothing more.
Anthony O’Donnell Richard Johnstone May Day 1997
Preface v
1 Thinking ‘culture’ in legal education 1
Introduction 1
Towards a critical multiculturalism 4
Multiculturalism and the law 12
Thinking ‘culture’ in legal education 13 Some strategies for legal education 15
2 Equity 23
Rethinking equity and trusts 23
The hidden history of equity 25
Third party guarantees: Amadio and all that 31 Keeping secrets:
Breach of confidence and intercultural encounters 54 Vulnerability, power and agency:
the role of fiduciary doctrine 59
Conclusion 64
3 Property 65
The problem with property 65
Real estate versus property: cross-cultural contexts 67
Sea country, ownership and the commons 71
Mabo as cross-cultural encounter 77
History, rupture and an indigenous land law 81
From place to space 85
Home economics: unpacking private property rights 88
Reading indefeasibility 90
Where to next? 102
4 Torts 105
Introduction 105
Reasonableness and culture 108
Shit happens: the cultural politics of accidents 114 Race, policy and the potential of tort law 118
‘When I hear the word “culture”,
I reach for my cheque book’ 125
Conclusion 130
Index 131
INTRODUCTION
After 200 years of colonisation and immigration, it has become a commonplace to describe Australia as a ‘multicultural’ society. Yet perhaps it could more properly be characterised as ‘a society with a multicultural population, regulated and governed by a monocultural power structure’.1
One aspect of that power structure is the legal system, and the gap between a monocultural legal system and a diverse population has been the subject of commentary for over 30 years.2 This commentary has highlighted issues of access and equity, especially the linguistic barriers to access and general issues of cross-cultural communication, with some regard to those areas where the cultural underpinnings of law acquire most saliency: family law, criminal law and, to a lesser extent, contract law.3 It has been recognised that law schools and the traditional law curriculum must bear part of the blame for the ongoing failure of the legal system to respond to issues of cultural diversity.4 One
THINKING ‘CULTURE’ IN LEGAL EDUCATION
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1 Jamrozik, A, Boland, C and Urquhart, R, Social Change and Cultural Transformation in Australia, 1995, p xi, Melbourne: Cambridge University Press.
2 See, for example, Mendes da Costa, D, ‘Migrants and the laws they left behind them’ in Stoller, A (ed), New Faces: Immigration and Family Life in Australia, 1966, p 131 Melbourne:
Cheshire; Jakubowicz, A and Buckley, B, Migrants and the Legal System, 1975, Canberra:
AGPS; Commonwealth of Australia, Review of Post-Arrival Programs and Services for Migrants, Migrant Services and Programs, 1978, Canberra: AGPS; Eades, D, Aboriginal English and the Law, 1982, Brisbane: Qld Law Society; Committee for Stage One of the Review of Migrant and Multicultural Programs and Services, Don’t Settle for Less, 1986, Canberra:
AGPS; Australian Law Reform Commission, The Recognition of Aboriginal Customary Law Report No 31, 1986, Canberra: AGPS; D’Argaville, M, Cross-cultural Communication Issues and Solutions in the Delivery of Legal Services: An Interim Report to the Victoria Law Foundation, 1991; Royal Commission into Aboriginal Deaths in Custody, National Report, 1991, Canberra:
AGPS; Human Rights and Equal Opportunity Commission,Report of the National Inquiry into Racist Violence in Australia, 1991, Canberra: AGPS; Australian Law Reform Commission, Multiculturalism and the Law, Report No 57, 1992, Canberra: AGPS; Commonwealth of Australia, Access to Justice Advisory Committee, Access to Justice: An Action Plan, 1994, Canberra: AGPS; Australian Law Reform Commission, Equality Before the Law, Report No 69, 1994, Canberra: AGPS; Commonwealth of Australia, Senate Standing Committee on Legal and Constitutional Affairs, Gender Bias and the Judiciary, 1994, Canberra: AGPS; Kathy Laster and Veronica Taylor,Interpreters and the Legal System, 1994, Sydney: The Federation Press; Human Rights and Equal Opportunity Commission, State of the Nation 1995: A Report on People of Non-English Speaking Backgrounds, 1995, Canberra: AGPS; Stubbs, J, Travaglia, J, Inge, L, Cunneen, C, Chan, J, Cross-cultural Awareness for the Judiciary: Final Report to the Australian Institute of Judicial Administration, 1996, Sydney: Faculty of Education, University of Sydney. See generally, Bureau of Immigration, Multicultural and Population Research, Migrants and the Law: An Annotated Bibliography, 1995.
3 See, for example, Australian Law Reform Commission, 1992, above n 2.
4 Ibid, para 2.17.
response has been to advocate cross-cultural awareness education which focuses on intercultural communicative competence, ethnographic thumbnail sketches or ‘case studies’ of migrant ‘communities’, and an examination of the law’s tolerance of diversity through, say, formal anti-discrimination or equality provisions.5
Useful and necessary as these approaches are, we want to suggest in this book ways to move beyond them. That is, we feel the full value of cross-cultural perspectives on the law will be realised when they contribute to a broader pedagogy ‘in which relations of power and racial identity become paramount as part of a language of critique and possibility’.6
Let us suggest a few of the propositions that we think should inform such a project. First, we approach the academic study of law as a serious endeavour in itself, rather than seeing it merely as a training ground for future lawyers. Such an approach draws support from the Pearce report on Australian law schools:7
A good undergraduate law course should provide an intellectual base for life- long critical reflectiveness about legal institutions, the profession and one’s own work, in the actual and changing conditions of social life and legal practice ... [L]aw courses should expose students to an understanding of the processes and functions in society of law and legal institutions, to the variety of the modes of social control, to the moral and political outlooks embedded in law and conceptions of professional roles, to questions of justice, to the relevance of social, political and moral theories and forces to law, legal institutions and their change and development, and to the information and understanding to be drawn from the social sciences and social science research for the purpose of evaluating law.
The inadequacy of the professional training model of legal education becomes more marked as fewer graduates are actually employed in private practice or government lawyering.8 The current trend for law students to enrol in joint- degree programmes probably springs from both a reappraisal of employment prospects and the distinct lack of intellectual appeal of professionally based law curricula.9
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5 Ibid, ch 2.
6 Giroux, H, ‘Insurgent Multiculturalism and the Promise of Pedagogy’ in Goldberg, D (ed), Multiculturalism: A Critical Reader, 1994, pp 325, 326, New York: Blackwell.
7 Pearce, D, Campbell, E, Harding, D, Australian Law Schools: A Discipline Assessment for the Commonwealth Tertiary Education Commission, 1987, Vol 1, para 2.108, Canberra: AGPS. For a consideration of the ambivalences and contradictions in the Pearce Committee’s overall approach, see Lancaster, J, The Modernisation of Legal Education: A Critique of the Martin, Bowen and Pearce Reports, 1993, pp 52–69, Sydney: Centre for Legal Education.
8 Weisbrot, D, ‘Recent Statistical Trends in Australian Legal Education’ (1990 – 91) 2 Legal Education Review219, 226–27. Christine Parker has concluded that fewer than 60% of law graduates are practitioners a few years after graduation, and the percentage decreases as time goes on: ‘An Oversupply of Law Graduates? Putting the Statistics in Context’ (1993) 4 Legal Education Review 255, 266.
9 Ziegert, A, ‘Social Structure, Educational Attainment and Admission to Law School’ (1992) 3 Legal Education Review155, 203–04.
Despite the renewed attention to the law school curriculum, we cannot help noticing that the field of legal scholarship remains relatively impervious to trends elsewhere in the academy. A United States commentator has observed that ‘law schools are behind the times in confronting the issues posed by the debate over the canon. Our basic core curriculum stands astonishingly unchanged and unexamined compared to that of the rest of the academy.’10An Australian academic has echoed these concerns in the local context:11
[I]t seems clear that law as an area of study has not kept pace with the innovation and theoretical heterogeneity witnessed of late within the humanities. Scholars in law have remained disturbingly content with regimes of truth, designed within agencies of the State, which often naturalise or elide questions of oppression and inequality.
Secondly, we suggest that such cross-cultural perspectives must be integrated throughout the curriculum to avoid a perceived marginalisation of cross-cultural issues as disassociated from the remainder of students’ studies. Again, segre- gated courses can result in cross-cultural issues being perceived as an area of specialisation, implying that the content of cross-cultural practice is for experts and best left to them, rather than cultural diversity being one dimension of social reality that cuts across all fields of practice.12
In particular, the challenge we set ourselves in focusing on torts, property law and equity was to examine precisely those most ‘opaque’ areas of the cur- riculum, where we confront the accumulated, taken-for-granted and common sense assumptions which the law uses to understand the complex social world.13As Paul Rabinow has observed:
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10 Ansley, F, ‘Race and the Core Curriculum in Legal Education’ (1991) 79 California Law Review 1511, 1514–15. For a survey of the issues at stake in the ‘debate over the canon’, see the references at p 1512, n 3, of Ansley’s article. In contrast to Australia, the term ‘multicul- turalism’ is used in the United States for the purpose of this predominantly scholarly, campus-based debate: see, for example, Goldberg, D (ed), Multiculturalism: A Critical Reader, 1994, above n 6. Here, we are using the term ‘culture’ in a sense derived from social anthro- pology, referring to ‘the totality of those systems of signification, representation, symbolisation, and those social practices that have a quasi-autonomous logic and indepen- dence, separated often from the intentionality or spirituality of those who constitute them’;
the debate over the canon within the humanities mixes this meaning of culture with a more generalised anxiety about the position of ‘mass culture’ in relation to ‘high culture’:
Benhabib, S, ‘The Intellectual Challenge of Multiculturalism and Teaching the Canon’ in Garber, M, Franklin, P and Walkowitz, R (eds), Field Work: Sites in Literary and Cultural Studies, 1996, pp 11, 12, New York: Routledge.
11 Duncanson, I, ‘Broadening the Discipline of Law’ (1994) 19 Melbourne University Law Review 1075.
12 Cox, D, ‘Preparing Practitioners for Welfare Service Delivery in a Multicultural Society’ in Hedrick, D and Holton, R (eds), Cross-cultural Communication and Professional Education, 1990, pp 139, 145, Bedford Park: Centre for Multicultural Studies, Flinders University of South Australia.
13 Castles, S, ‘The Racisms of Globalisation’ in Vasta, E and Castles, S (eds), The Teeth Are Smiling: The Persistence of Racism in Multicultural Australia, 1996, pp 17, 30, Sydney: Allen &
Unwin.
We do not need ... a new epistemology of the other ... We need to anthropolo- gise the West: show how exotic its constitution of reality has been; emphasise those domains most taken for granted as universal ... make them seem as historically peculiar as possible; show how their claims to truth are linked to social practices and have hence become effective forces in the social world.14 Finally, approaches to cross-cultural issues must be interdisciplinary. That is, much of the knowledge and data that can inform cross-cultural perspectives will come from the social sciences, historical studies, the narratives and resources of community activism. Also, the questions that will continually surface in teaching materials that take cross-cultural issues seriously – What is culture? How is difference constituted? How can we represent it? How does a
‘multicultural’ Australia deal with difference? What counts as justice in a culturally diverse society? – are being discussed and theorised outside law in the disciplines of sociology, history, feminist studies, political science, cultural studies, anthropology and literary studies.
TOWARDS A CRITICAL MULTICULTURALISM
Because ‘multiculturalism’ provides the inescapable context for much public discussion of cross-cultural training and law, we want first to critically examine the concept for the pitfalls and dangers, as well as for the guidance and direc- tion, it may provide to teachers wishing to develop cross-cultural teaching materials.
At the outset it is worth noting that the ‘multicultural’ model of diversity tends to emphasise the diversity of migrant collectivities in Australia, rather than the confrontation of indigenous people with invaders and settlers which is emphasised by a ‘colonisation’ model.15 Partly this is the result of a clear administrative division between ‘Aboriginal Affairs’ and ‘Multicultural Affairs’, and of a scholarly division between ‘race relations’ and ‘ethnic studies’.
Partly it is also respectful of the wishes of Aborigines themselves not to be seen as ‘another ethnic minority’ but as the original inhabitants of the land which provides the territory of the Australian nation-state.16Yet it also represents a problem inherent in official ideologies of multiculturalism itself: ‘it is impossi- ble to include Aborigines in the image of a consensual unity-in-diversity without erasing the memory of colonial dispossession, genocide and cultural
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14 Rabinow, P, ‘Representations Are Social Facts: Modernity and Post-Modernity in Anthropology’ in Clifford, J and Marcus, G (eds), Writing Culture: The Poetics and Politics of Ethnography, 1986, pp 234, 241, Berkeley: University of California Press.
15 Pettman, J, ‘Race, Ethnicity and Gender in Australia’ in Stasiulis, D and Yuval-Davis, N (eds), Unsettling Settler Societies: Articulations of Gender, Ethnicity and Class, 1995, p 65, London: Sage.
16 Stratton, J and Ang, I, ‘Multicultural Imagined Communities: Cultural Difference and National Identity in Australia and the USA’ (1994) 8 (2) Continuum 124, 154.
loss and its continued impact on Aboriginal life.’17Nevertheless, adopted as official State policy, multiculturalism now provides the ‘narrative space’ for explorations of difference in Australia.18That is, Australia has always been a polyethnic nation, but for the last 20 years multiculturalism has offered a par- ticular, legitimate account of this experience.19 Here, we want to take advantage of this new ‘space’ to explore difference in terms of ‘all those other than the original settler-colonising groups composed mainly of people from the UK and Ireland’.20
The history of both migration to Australia and government policy responses to it has been well-documented.21Observes Jackson, ‘As a policy, multicultur- alism enjoys the distinction of being vilified by both the left and the right’.22The policy of multiculturalism arose in response to what were seen as the problems and failures of assimilation. Assimilation was a policy of benign indifference, of
‘doing as little as possible in the hope that immigrants would eventually become “Australian”’.23The category ‘Australian’ was defined with reference to various national myths and stereotypes that themselves glossed over class and gender cleavages amongst Anglo-Australians. Various moral or rights- based critiques of assimilation arose on the grounds that the policy required non-Anglo Australians to deny their cultural heritage. More alarming for poli- cymakers was the increasing realisation of structures of disadvantage resulting from government indifference to the specific welfare needs of migrants. Studies such as the Henderson inquiry into Australians in poverty24showed that immi- grants suffered socio-economic disadvantage, exacerbated by cultural, linguistic and geographic barriers to participation, and that such disadvantage was reproduced through generations. Such a result was not surprising, given that ‘assimilation implied non-Anglo Australians had to com- pete for social goods on the terms of the existing political and economic structures which clearly favoured the Anglo-Australians’.25At the same time, spokespeople from ethnic communities themselves challenged assimilationist policies. The supercession of assimilation by ‘multiculturalism’ can be seen
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17 Ibid, 155.
18 Ibid, 152.
19 Ibid, 151–52.
20 Gunew, S, Framing Marginality: Multicultural Literary Studies, 1994, p 2, Melbourne:
Melbourne University Press.
21 See generally Rizvi, F, Migration Ethnicity and Multiculturalism Volume C: Multiculturalism:
Making Policy for a Polyethnic Society, 1989, Geelong: Deakin University; Jamrozik et al,above n 1.
22 Jackson, A, ‘Ethnic Organisations: A Policy and Planning Perspective’ (1991) 12 (1) Journal of Intercultural Studies39, 44.
23 Rizvi, above n 21, 7.
24 Australian Government Commission of Inquiry into Poverty, First Main Report, 1975, Canberra: AGPS; see also Jakubowicz and Buckley, above n 2.
25 Rizvi, above n 21, 9.
then as an outcome of a policy-bargaining process whereby political parties used the new policy rhetoric as a way of gaining the ethnic vote, while in turn benefits flowed to a new ‘ethnic petty bourgeoisie’.26
By the time the Fraser government institutionalised multiculturalism with the Galbally Report in 1978,27ethnic disadvantage was being explained largely in terms of language problems and other cultural difference/cultural deficit notions.28This leads to essentially conservative understandings of ethnicity, characterised by the following:
● ethnicity or culture is primarily a matter of ‘lifestyle’;
● culture is static, homogenous, and hence can be ‘known’ to the outside observer;
● culture is what other, non-Anglo-Saxon people have.
(a) Culture as lifestyle
Multiculturalism has predominantly been seen as a way of preserving forms of cultural identity such as religion and language, food and folklore, clothing and dance. We do not want to dismiss the wider constellation of cultural meanings around, say, food,29but we are arguing that the preservation of such plural forms takes place insulated from a public arena constituted by one set of politi- cal, legal and economic institutions. Mary Kalantzis, Bill Cope and Chris Hughes ask:30
What is not cultural about the structures and norms of the law, the nature of citizenship and political participation, the nature of work and welfare? What is not cultural about the very division of the public domain and the private, the division of folk-culture as spare-time or entertainment activity from everyday life with its shared legal-political-economic arrangements? What is not cultural about the structures which facilitate upward, downward and lateral social mobility and the values of motivation to success or values which reject conventional success?
In looking to include ‘things that escape the tourist’s eye for culture or the mul- ticulturalist’s eye for ethnicity’,31Kalantzis, Cope and Hughes highlight the limited structural impact of multiculturalism. There remains ‘a single culture of everyday life in Australia’, a form of advanced capitalism, in
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26 Jackson, above n 22, 45.
27 Commonwealth of Australia, Review of Post-Arrival Programs and Services for Migrants, Migrant Services and Programs, 1978, Canberra: AGPS.
28 Pettman, above n 15, 82.
29 See, for example, Michael Symons’s passionate and politically-informed plea to rethink food policy as cultural policy in his The Shared Table: Ideas for Australian Cuisine, 1993, Canberra: AGPS.
30 Kalantzis, M, Cope, B, Hughes, C, ‘Pluralism and Social Reform: A Review of Multiculturalism in Australian Education’ (1985) 11 Thesis Eleven195, 207.
31 Ibid, 212.
relation to which ‘much of the diversity that there is, is relatively superficial and trivial’.32
If culture is perceived as contained within the private sphere, then culture conflict is seen as conflict over difference in understandings. From this perspective, the problem becomes merely the ‘exotic’ nature of other cultures, a problem that can presumably be resolved through education, exposure and celebration through ‘positive’ images. However,
... racism is not caused by ‘difference’ but by conflict over material and ideological resources. Racism is not prejudice, but rather it is a relationship of dominance and subordination: that is a relationship of power. Cultural aware- ness training, to the extent that it operates within a framework of totalised and antithetical cultural difference, is largely incapable of describing, let alone combating, such institutional racism.33
A more fruitful approach, then, is to investigate how the dominant Australian socio-cultural, economic and legal systems impact on the life chances, not the lifestyles,34 of , Aboriginal and Islander people and non-English-speaking background Australians.35
(b) Knowing culture
Culture and ethnicity are often perceived as static. Yet the social sciences have had little success in developing an uncontentious definition of ethnicity.36 Rather, ‘social categories such as race, ethnicity and culture depend for their significance in each society on their relation to prevailing structures of incorpo- ration, and ... alignment of groups in society’.37Thus ‘ethnicity’ as a concept is relational and ethnic designations and their meanings will vary between
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32 Ibid, 207.
33 Hollinsworth, D, ‘Cultural Awareness Training, Racism Awareness Training or Antiracism?: Strategies for Combating Institutional Racism’ (1992) 13 (2) Journal of Intercultural Studies37, 44.
34 The distinction is Laksiri Jayasuriya’s; see ‘Multiculturalism: Fact, Policy and Rhetoric’ in Poole, M et al (eds) Australia in Transition: Culture and Life Possibilities, 1985, p 3, Sydney:
Harcourt Brace Jovanovich.
35 See, for example, Jamrozik et al, above n 1, esp ch 6; Collins, J, ‘The Changing Political Economy of Australian Racism’ in Vasta and Castles, above n 13 ; Webber, M, Campbell, I and Fincher, R, ‘Ethnicity, Gender and Industrial Restructuring in Australia 1971–86’ (1990) 11 (1) Journal of Intercultural Studies1; Council for Aboriginal Reconciliation, Addressing Disadvantage: A Greater Awareness of the Causes of Indigenous Australians’ Disadvantage, 1994, Canberra: AGPS; Australian Bureau of Statistics, National Aboriginal and Torres Strait Islander Survey, 1994, Cat No 4190.0, Canberra: ABS.
36 Rattansi, A, ‘Just Framing: Ethnicity and Racisms in a Postmodern Framework’ in Nicholson, L and Seidman, S (eds), Social Postmodernism: Beyond Identity Politics, 1995, pp 250, 252, Cambridge: Cambridge University Press.
37 Jayasuriya, L, ‘Culture and Communication: Some Critical Reflections’ in Hedrick and Holton (eds), above n 12, 96, 104.
different societies and historically within a given society.38For example, in the United States prior to the Civil War, Southern Europeans, Jews and Irish were classed as non-white in the hierarchy of races.39The instability of ethnic cate- gories is particularly marked in migration contexts where ethnic traditions come into contact with other traditions in settler societies, or, in the case of Australia, where there are high rates of intermarriage amongst second genera- tion migrants. To argue for the socially constructed nature of difference is not, however, to dissolve the reality of difference or of the oppressions of difference.
What we are arguing is that instead of being preoccupied with static ‘ethnic traditions’ teachers should be attuned to changing significations of ethnicity and race within the political and historical reality of Australia, and their concern should be as much with cultural location as cultural background.
Exploring cultural location means examining the relationship between domi- nant and minority cultures, recognising the ways that the dominant culture through legal regulation has the greatest power to ascribe value, determine the allocation of resources and control decision-making.40
A view of culture and ethnicity as static and unchanging will also tend to attribute a homogeneity to cultures that obscures important differences of class and gender within recognised ‘ethnic communities’, or commonalities of inter- est across communities:41
While the Greek-Australian shop-owner, for example, may have some cultural characteristics in common with other Greek-Australian workers, the differences between them, in respect of economic relations, are also extremely important.
Similarly, the differences between Turkish-Australian males and Turkish- Australian females may be more significant than their similarities. Also, it is possible that the similarities between Greek-Australian women and Chinese- Australian women may be more important in particular contexts than the differences that are attributable to their ethnicity. Thus, the emphasis on cultural differences may obscure the facts of commonality across ethnic divisions.
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38 Omi, M and Winant, H, ‘By the Rivers of Babylon: Race in the United States’ (1983) 71 Socialist Review31, 47.
39 Ibid 51. See also, Haney-Lopez, I, White By Law: The Legal Construction of Race, 1996, New York: New York University Press; Ignatiev, N, How the Irish Became White, 1995, New York:
Routledge. Note Burton J’s comments regarding the status of Aboriginal law in the colony of New South Wales in the case of R v Murrell (1836); such law, he said, was ‘consistent with a state of the greatest darkness and irrational superstition’ and so deserved as little respect as the ‘laws of the Wild Irish’; Reynolds, H, Aboriginal Sovereignty: Reflections on Race, State and Nation, 1996, Sydney: Allen & Unwin. E Annie Proulx’s recent novel of the European- American working class experience, Accordion Crimes, 1996, London: Fourth Estate, begins with an epigraph from Cornel West: ‘Without the presence of black people in America, European-Americans would not be ‘white’ – they would be only Irish, Italian, Poles, Welsh and others engaged in class, ethnic and gender struggles over resources and identity’.
40 See Gonzalez, M and Gilmore, K, with Orlando, D, Desperately Seeking Justice: A Resource and Training Manual on Violence Against Women in a Culturally Diverse Community, 1992, p 74, Melbourne: CASA House.
41 Rizvi, above n 21, 24.
In a further critique of many mainstream intercultural training programs Michael Morrissey asks quite bluntly: ‘Who defines what “culture” is? Who defines what is the content of a particular culture? Whose prerogative is it to distinguish between behaviour which emanates from a person’s “culture” and that which is a response to a specifically Australian situation?’42Ali Rattansi has pinpointed the challenge for educators:43
[T]he focus on ethnicity as part of the discourse of cultural pluralism and diversity pays scant attention to the highly complex, contextually variable and economically and politically influenced drawing and redrawing of boundaries that takes place in encounters within the minority communities and in relation to white groups ... This implies, in turn, that the foundations of the whole project of teaching about ‘other cultures’ need to be rethought. The shape and character of ethnic cultural formations is too complex to be reduced to formulas around festivals, religions, world-views and lifestyles. These fail to grapple with the shifting and kaleidoscopic nature of ethnic differentiations and identities and their relation to internal divisions of class and gender.
Australian law provides numerous examples of attempts to police cultural distinctiveness. Recently Australians were confronted with the spectacle of the Hindmarsh Island Bridge Royal Commission set up to determine the authen- ticity of Ngarrindjerri beliefs about Hindmarsh Island (Kumarangk).44It seems to us that such an enterprise could only proceed on the basis of a refusal to see culture as dynamic and subject to redefinition and change, preferring to view it as frozen in time, a kind of artefact that belongs in a museum because only then can deviations be easily seen and labelled ‘fabrications’. An alternative approach may be found in the adjudication of Aboriginal land claims under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). Such an adjudica- tion remains an event produced by the Australian legal system and imposed upon Aborigines to decide ‘whether or not a set of Aboriginal people are who they say they are’,45but remains open to a historical and contextual analysis of what ‘culture’ and ‘tradition’ might mean at any given moment. That is, adju- dication tries to remain open to recognising residence patterns formed by the process of colonisation itself, the clustering of claimants within institutions, the policies of child removal, differential work experience, as all accounting for different knowledges amongst individual claimants. The result, suggests
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42 Morrissey, M, ‘Some Considerations on Provision of Welfare Services to Migrants’ in Jamrozik, A (ed), Provision of Welfare Services to Immigrants: SWRC Reports and Proceedings No 60, 1986, Sydney: University of NSW.
43 Rattansi, A, ‘Changing the Subject?: Racism, Culture and Education’ in Donald, J and Rattansi, A (eds), ‘Race’, Culture and Difference, 1992, pp 11, 39, London: Sage.
44 On the legal contours of the case, see Tehan, M, ‘A Tale of Two Cultures’ (1996) 21 Alternative Law Journal 10; our analysis here draws on Christine Nicholls, ‘Misrepresenting Hindmarsh’ (1995) 20 Arena Magazine24.
45 Bird Rose, D, ‘Histories and Rituals: Land Claims in the Territory’ in Attwood, B (ed), In the Age of Mabo: History, Aborigines and Australia, 1996, p 35, Sydney: Allen & Unwin.
Deborah Bird, is ‘contradictory, complicit and mutually embedded double binds of relations between indigenous people and the colonising power’ that in turn offer ‘zones of empowerment and synergistic accommodation’ thanks to an Act which did not specify in detail the type of anthropological models to which the Aboriginal people might be required to conform.46
(c) Culture and otherness
Another way to think about the process at work in the Hindmarsh Island Bridge Royal Commission is to imagine the possibility of Royal Commissions into so-called traditional Anglo-Saxon cultural expressions. We suggest that a Royal Commission into, say, Christmas – as a festive holiday marked by gift- giving – would find it a comparatively recent ‘fabrication’ dreamt up by Charles Dickens and some London retailers in the 1840s.47Likewise, the much- touted image of the British monarchy as at once familial, ceremonially grand and a politically impartial force for stability and consensus would crumble before an inquiry which, we suspect, would uncover it as a ‘fabrication’ of Stanley Baldwin and George V from between the wars.48
We do not want to suggest that the machinations represented by these examples are mirrored by the Ngarrindjerri, but rather that notions of an immutable ‘traditional’ culture are always problematic and, further, impose on Aborigines a burden not asked of other cultures.49Moreover, the near impossi- bility of thinking of our hypothetical Royal Commissions shows the difficulty
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46 Ibid, 36, 52. A danger, suggests Rose, is that the culturally specific claims made within the zone of the Northern Territory Act may become a canon of authenticity for proof of land tenure in post-Mabo Native Title claims, resulting in Aboriginal people in other parts of Australia being required to reproduce a particular Aboriginality to achieve legal recogni- tion of title: 52–53.
47 See Thrift, N, ‘The Light Fantastic: Culture, Postmodernism and the Image’ in Clark, G, Forbes, D and Francis, R (eds) Multiculturalism, Difference and Postmodernism, 1993, pp 18–19, Melbourne: Longman Cheshire.
48 See Cannadine, D, ‘The Context, Performance and Meaning of Ritual: The British Monarchy and the “Invention of Tradition”, c 1820–1977’ in Hobsbawm, E and Ranger, T (eds), The Invention of Tradition, 1983, p 101, Cambridge: Cambridge University Press.
49 Andrews, N, ‘Illegal and Pernicious Practices: Inquiries into Indigenous Religious Beliefs’ in Finlayson, J and Jackson-Nakano, A (eds) Heritage and Native Title: Anthropological and Legal Perspectives, 1996, pp 62, 66, Canberra: Australian Institute of Aboriginal and Torres Strait Islander Studies.
of thinking of Anglo-Celtic50 Australians as an ethnic – and hence culture- bound – community. This relates to our opening observation, that Australia remains a ‘multicultural’ nation governed by a monocultural power structure, here reiterated by Stratton and Ang:51
It is not coincidental that ‘Anglo-Celtic’ Australians are not viewed as an ethnic community, while the government and senior echelons of the public service are still made up of a predominance of people, mostly male, from this dominant demographic group ... In short, official multiculturalism suppresses the continued hegemony of Anglo-Celtic Australian culture by making it invisible.
Ghassan Hage goes further, observing that:52
[I]n the Anglo-Celtic version of it, while multiculturalism requires a number of cultures, Anglo-Celtic culture is not merely one among those cultures, it is precisely the culture which provides the collection with this ‘peaceful co-existence’. That is, multiculturalism as a phenomenon is one of many cultures, but the essence of the whole phenomenon, the spirit that moves it and gives coherence, is primarily Anglo-Celtic. There is a common and wide- spread belief that left to themselves ‘ethnic’ cultures cannot possibly co-exist.
It is only the Anglo-Celtic effort to inject ‘peaceful co-existence’ into them which allows them to do so.
Ien Ang has alerted us to a similar danger in simplistic ideologies of tolerance, whereby ‘the dominant majority is structurally placed in a position of power
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50 We realise ‘Anglo-Celtic’ is a contested term, effacing as it does the important historical divisions between English and Irish populations, both in their homelands and in Australia. However, in the context of contemporary Australian society, we find the term (and the term ‘Anglo-Australians’) useful shorthand for the dominant monoculture as it has been defined both administratively and culturally. From 1948 – 87, the Nationality and Citizenship Act defined an ‘alien’ as a person who did not have ‘the status of a British subject and is not an Irish citizen or a protected person’: Jordens, AM, Redefining Australians: Immigration, Citizenship and National Identity, 1995, p 1, Sydney: Hale &
Iremonger. Sneja Gunew has observed that Irish-Australians ‘have managed to convince many of us that much of what we think of as quintessentially Australian culture – the laconic humour, the folk music and many canonical Australian writers – derives directly from Ireland’: Gunew, above n 20, 8. For the last 15 years ‘Irishness’ has also worked to legitimise aspects of the governing regime in Australia: on the mobilisation of what Meaghan Morris has termed this sentimental ethnicity, see Cumming, F, Mates: Five Champions of the Labor Right, 1991, Sydney: Allen & Unwin. We also draw on the oft-used birthplace dichotomy of ‘English-speaking background’ and ‘non-English-speaking back- ground’ (‘NESB’) to describe population groups. This recognises that immigrant experience will often be structured by familiarity with the English language and British- derived culture and institutions. However, migrants from countries where English is widely spoken and British-derived institutions prevail, such as Sri Lanka, India, Singapore and Malaysia, still experience exclusion based on race which sets them apart from migrants from Canada, Ireland, New Zealand, the UK and the USA.
51 Stratton and Ang, above n 16, 153 –54.
52 Hage, G, ‘Republicanism, Multiculturalism, Zoology’ in Hage, G and Johnson, L (eds), Republicanism, Citizenship, Community, 1993, pp 113, 134, Nepean: University of Western Sydney.
inasmuch as it is granted the active power to tolerate’.53Hage warns of the dangers of maintaining a relation of exteriority between an Anglo-Saxon collective construction (‘the law’) and ‘multiculturalism’.54The temptation is to use multiculturalism to celebrate the law’s ability – or potential ability given a few well-judged reforms – to ensure that Australia is a tolerant, egalitarian place to live, rather than allowing the reality of diversity to unsettle our ideas of legal regulation, to reveal hitherto unseen complexities, to provide us with
‘unexpected detours’.55
MULTICULTURALISM AND THE LAW
We have already noted the enduring debate concerning ethnicity and the law.56 Lois Foster and David Stockley57have itemised the principal themes of this debate:
● access to justice (including provision of legal aid and the availability of interpreters);
● anti-discrimination and human rights responsibilities;
● the education of ethnic communities regarding their rights under Australian law;
● legal pluralism in the field of family law and criminal law;
● insensitivity, prejudice and lack of awareness on the part of police, courts and the legal profession; and
● the need for educating justice personnel in intercultural awareness.
In looking over this list, we sense a danger that the dominant tone of these approaches remains what the African-American activist WEB DuBois labelled the ‘unasked question’ that constitutes the barrier between dominant and minority experience: ‘How does it feel to be a problem?’58Much cross-cultural material speaks of the need to ‘sensitise’ service providers to the ‘special needs’
of immigrants. ‘It was never a question’, suggests Sneja Gunew, ‘of what these people [immigrants] could contribute to the nation through their different cultures and language. Instead it became a question of what had to be sliced off
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53 Ang, I, ‘The Curse of the Smile: Ambivalence and the “Asian” Woman in Australian Multiculturalism’ (1996) 52 Feminist Review36, 39–40.
54 Hage, above n 52, 120.
55 Minh-Ha, T, Woman, Native, Other: Writing Postcoloniality and Feminism, 1989, p 232, Bloomington: Indiana University Press.
56 See references above, n 2.
57 Foster, L and Stockley, D, Australian Multiculturalism: A Documentary History and Critique, 1988, Clevedon: Multilingual Matters.
58 Gilroy, P, There Ain’t No Black in the Union Jack: The Cultural Politics of Race and Nation, 1987, p 11, London: Hutchinson.
the national funding cake in order to keep them quiet, and to lend credibility to the image of Australia as a democratic and equitable nation’, adding that it is crucial to distinguish between government policies and the claims for cultural involvement that come from ethnic groups themselves.59Observes Jamrozik:60
In such ‘welfare’ perspectives, immigrant communities came to be seen as
‘disadvantaged’ or as ‘dependent’ populations, similar to other ‘dependent’
populations, or ‘problem’ populations, such as the unemployed, pensioners or
‘the poor’.
The challenge, argues Paul Gilroy, is how to represent a marginalised presence outside the alternating categories of ‘problem’ and ‘victim’.61The easy parti- tioning of non-English-speaking background migrants and Aboriginal and Islander peoples into the ‘problem’ category means the impact of cross-cultural perspectives on our way of understanding the world can always be minimised.
As Foster and Stockley conclude, ‘The fact of the matter is that lawyers, for example, can conduct a successful business with little acknowledgment of the multicultural society so the inducement to change is not strong’.62
THINKING ‘CULTURE’ IN LEGAL EDUCATION
Calls for cross-cultural education of professionals have been an enduring theme of official reports from the 1978 Review of Post Arrival Programs and Services for Migrants onwards.63Yet apart from specific recommendations con- cerning education in the use of interpreters or community languages, the actual content of ‘cultural awareness’ education ‘is usually described only in the vaguest of terms’.64The programmes that have responded to these calls are usually discrete, stand-alone training programmes designed for specific target groups.65In the context of legal education, such training has been incorporated through practical training courses,66or through the introduction of discrete, optional, specialist courses into the undergraduate curriculum, such as
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59 Gunew, above n 20, 5.
60 Jamrozik et al, above n 1, 219.
61 Gilroy, above n 58, 12.
62 Foster and Stockley, above n 57, 139. See also D’Argaville, above n 2, who reports solicitors’
perception that for those practitioners who might find themselves in intercultural encoun- ters, ‘on-the-job’ experience is sufficient to develop the necessary cross-cultural communication skills and no specific training was required in this area.
63 See references above, n 2.
64 Cultural Diversity Training Program, Faculty of Education, University of Sydney, Cross- cultural Awareness for the Judiciary: Interim Report to the Australian Institute of Judicial Administration, 1996, p 61.
65 See generally Cope, B, Pauwels, A, Slade, D, Brosnan, D, Neil, D, Local Diversity, Global Connections, 2 vols, 1994, Canberra: AGPS.
66 Lamb, A, ‘The Role of the Lawyer in a Multicultural Society’ (1987) 5 (1) Journal of Professional Legal Education31.
‘Aborigines and the Law’ or ‘Law and Cultural Diversity’. While all these are valuable and necessary initiatives, those seeking models for integrating cross- cultural content into the core undergraduate curriculum have relatively few models on which to draw.67
How should teachers begin to rethink current approaches to culture in the legal curriculum? We hope that by now we have provided a context for three broad themes that can constitute an ongoing project in legal education:
● the interrogation and unpacking of majority cultural privilege;
● an anti-essentialist approach to culture and ethnicity;
● an examination of law’s representation of culture.
A mere celebration of ‘difference’ or plurality is not enough without a question of what is at stake in terms of just outcomes. Further, we suggest that teachers from the majority culture are unlikely to develop a sense of ‘what is at stake’
without thinking about the social significance of their own race, ethnicity and gender.68 Again, this suggests that cross-cultural perspectives are everyone’s business, not just a specialist field.
Yet such a perspective also prevents us from writing a book to tell you ‘what migrants are like’ or ‘what Aborigines are like’.69What concerns us more is how minority cultures are represented through the law and legal encounters, and how such representations in turn might be linked to wider histories of colonialism and racism (and, as we mentioned above, this in turn demands a self-awareness from teachers of how their own intellectual work is situated in that process).
For example, in responding to the real fact of cultural diversity, legal regulation must negotiate the balance between resorting to generalisations and concretely addressing an individual’s location in her community, her location in the diaspora and her history.70The conundrum is an acute one and should
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67 A notable exception was a first year subject developed at Monash University in the 1980s;
for a description of the process of curriculum development, see Bird, G,Re-defining a Law Curriculum from a Multicultural Perspective: The Monash/Victorian Law Foundation Joint Project, 1985, Melbourne: Centre for Migrant and Intercultural Studies, Monash University; the course materials are available as a textbook, now in its second edition: Bird, G, The Process of Law in Australia: Intercultural Perspectives, 2nd edn 1993, Sydney: Butterworths.
68 Pettman, J, Living in the Margins: Racism, Sexism and Feminism in Australia, 1992, p 140, Sydney: Allen & Unwin.
69 Rowse, T, After Mabo: Interpreting Indigenous Traditions, 1993, p 128, Melbourne: Melbourne University Press.
70 Volpp, L, ‘(Mis)Identifying Culture: Asian Women and the “Cultural Defense”’ (1994) 17 Harvard Women’s Law Journal 57, 100. Volpp discusses in detail the notion of a cultural defence, a legal strategy to mitigate culpability for criminal behaviour on the grounds that a defendant, an immigrant, acted according to the dictates of his or her culture. Thus a non- Anglo man might seek to use the cultural defence to plea for leniency in the case of his violence toward a woman from the same culture. Alternatively, a non-Anglo woman might seek to admit cultural factors to explain her mental state when attempting a parent-child suicide.
be situated in a tendency of the law to view culture as a deficit which must be compensated for: reformers confronted with the difference presented by a non- Anglo-Celtic culture demand a lower standard of care, a lesser degree of reasonableness, we speak of special disadvantage. Partly we are again con- fronting the problem of seeing Anglo-Celtic ethnicity as an invisible norm: in the words of Leti Volpp, ‘one is left with an image of a spoonful of cultural diversity from immigrants ladled onto a flat, neutral base’.71Partly also the practices of the law construct the problematic in this way: the adversarial system is built around special pleading for clients.
But it also requires dealing with the crucial issue of the representation of migrants, Aborigines and Islanders. The question is not merely one of ‘positive’
versus ‘negative’ images, but of asking about the social and political mecha- nisms that put such images into place, how the images get produced within available discourses, and what other images might be substitutable.72We feel that complex, interesting and more nuanced answers to the question of how Australian law deals with difference will be found not necessarily in instances of outright exclusion and intolerance, but in those intercultural encounters now marked by ‘tolerance’.73What happens when presumably neutral, cultureless Australian law decides to recognise the ‘special disadvantage’ of non-English speaking migrants? Or when it decides to grant land rights to ‘traditional’
Aboriginal owners? Or recognise ‘loss of cultural fulfilment’ as a head of dam- ages? What type of power relationship or system of control is thereby put in place, between the agents of legal regulation and their non-Anglo subjects? This type of inquiry will differ in many respects from that of the practising lawyer, but must be undertaken for there to be any influence on practice.74
Having proposed these broad themes, we will close this chapter with a slightly less grand series of suggestions for classroom practice.
SOME STRATEGIES FOR LEGAL EDUCATION
There have been encouraging changes in some Australian law schools in recent times, with more and more teachers informing their law-teaching practices with lessons drawn from educational theory. Many teachers are questioning the traditional law-teaching methods based on an unquestioned acceptance of legal positivism, lecturing and the casebook method, backed up by problem- focused examinations. New perspectives on legal knowledge such as we are
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71 Ibid, 61– 62. ‘Creating a “cultural defence” for immigrants in the United States’, observes Volpp, ‘thus rests on the implication that US law is without a culture’: 62.
72 Muecke, S, Textual Spaces: Aboriginal Cultural Studies, 1992, p 15, Sydney: University of New South Wales Press.
73 Ang, above n 53, 41.
74 See Duncanson, above n 11, 1079–80.
suggesting here are being developed hand-in-hand with new teaching and assessment methods. Contemporary theories of student learning – and the possibilities they suggest to teachers in the law classroom – have been discussed elsewhere.75The model of teaching and learning which underpins the discus- sion of cross-cultural teaching materials in this book is based on this developing model of flexible teaching in law, which accepts that modern law-teaching should involve flexible but well-structured (or targeted) teaching.
Here are some general teaching strategies and ideas.
(a) Rethink the entire syllabus from a critical perspective. This is a necessary first step, as just looking for the multicultural issues in an established, doctrinal, positivist syllabus will probably yield precious little in the way of opportunities for the incorporation of new material. Having said that, we should acknowledge the size of this task. The process of rethinking a law subject is one that can take up to five or six years according to many faculties’
experience, and may depend upon a number of quite contingent processes:
recruitment of new staff, a critical external evaluation, and so on. Yet such a rethinking can be ongoing, and is an essential foundation to the successful introduction of cross-cultural issues into core subjects such as equity, torts, or property law. The rethinking can begin from something as simple as the technique of trying to explain yourself and your area of work to a layperson.
It takes the form, for instance, of answering the question: what kind of situations are people in when lawyers characterise it as an ‘equity’ matter?
It is only after a couple of years at law school that people start to think doctrinally or in the casebook categories of tort and equity. Given that law teachers have spent at least that long at law school, they in particular need to rediscover the social dimensions of the doctrinal categories. Once subjects are rethought in such social terms, it becomes much easier to see the salience of cross-cultural issues.76
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75 See generally Le Brun, M and Johnstone, R, The Quiet (R)evolution: Improving Student Learning in Law, 1994, Sydney: Law Book Company; Johnstone, R, Printed Teaching Materials:
A New Approach for Law Teachers, 1996, London: Cavendish Publishing. For general discus- sions of educational theory and its practical application to tertiary teaching see: Laudrillard, D,Rethinking University Teaching: A Framework for the Effective Use of Educational Technology, 1993, London: Routledge; Ramsden, P, Learning to Teach in Higher Education, 1992, London:
Routledge.
76 There is a compelling argument that the law curriculum should be rethought
