Justice as a commodity

Sometimes a book comes along which nails it. Margaret Thornton’s new book, Privatising the Public University: The Case of Law (Routledge 2012) is almost that book.

This is a book for all those interested in legal education and what is happening in and to our law schools and universities.

The answer, in a word, is neoliberalism. Legal education, like its colleagues across the University sector, has become a product, bought and sold on the market. This has ramifications, all of them less than ideal, for Universities and specifically for Law Schools.

The idea of the university, a community in the dispassionate pursuit of truth, has been destroyed by the educational barbarians of government and their lacklustre lackeys in the University system.

Thornton covers it all - the inadequate funding, the increase in student numbers without a corresponding increase in staff, the mass production of ‘publications’, many of them unfit for human consumption, the dumbing down of curricula and students, the demands of students as customers, the bullying, the stress, the longer and longer hours, the dictatorial management styles, the mad hunt for ‘research’ grants linked to profit and the death of collegiality in the dog eat dog world of neoliberal legal education. On and on the list of educational atrocities goes.

While these ills occur across all universities and areas of knowledge, in law neoliberalism has almost meant the end of critical enquiry and reflective legal research. The black letter death has crawled from the putrid gutters of mediaeval backwardness to re-infect the legal academy.

Pockets of resistance remain but they are under attack from the heavy guns of neoliberalism in their own Universities and across the sector.

Neoliberalism has emboldened the legal profession to reimpose its restrictive agenda and mode of thinking on Law Schools. You are doing law to practise law and what the law is. Doctrinal dogma and rote rule learning dominate.

Couple this with credentialism – gives us our Law Degree and be quick about it; we have big money to earn! – and the idea of what should be is destroyed by the rote learning of what is.

The Weeties’ pack Law Degree cannot be far away, if it is not already here.

Thornton’s book helped me make sense of my two years at the University Canberra and the dysfunction that passes for rationality there.

In my 33 years in the workforce (including six as an Assistant Commissioner in the ATO), the Law Faculty at the University of Canberra is the only workplace where I have received a Nazi salute from a ‘colleague’, where I have witnessed a group of ‘colleagues’ remove other colleagues’ books from the Faculty display cabinet in a frenzy of factional infighting, where I have been issued a gag order for calling this cabal or clique a faction, (an action in contravention in my view of the Enterprise Agreement and the ACT Human Rights ACT) and where that faction bullies the commercial lawyers. At the same time the benefits of reductions in teaching hours for administrative and other responsibilities goes overwhelmingly to the supposedly critical stream of legal researchers and teachers.

Those of us who raised concerns were clearly troublemakers bent on destroying the school and its vision from within. They have to be banished, and they are.

There is a seeming paradox in this. How is it that the socio-legal faction in the Law School at the University of Canberra acts in the same way that their black letter and hard law colleagues in the ascendancy in most other law Schools act.

An easy answer would be that they wear the badge of socio-legal research and enquiry but are really just, as Thornton identifies, black letter lawyers who throw in a bit of social analysis.

A better answer I think would emerge out of looking at the degeneration of the ALP over the last 30 years and its embrace of neoliberalism to understand that the soft left in legal academia has undergone the same transformation.

They are 'critical' scholars in the neoliberal tradition.

They experiment with 'markets'. In the process of destroying the commercial law strength of the School, the market leftists have concocted some bizarre legal studies program to bring in money. It is, as one would expect from people not really attuned to the market, a failure, as is their attempt to set up a Law in Action course.

These Keynesian neoliberals cannot escape their environment – the neoliberal employment conditions that Stephen Parker, the former leftist and now Vice Chancellor of the University of Canberra, has imposed on the community of scholars there.

These 7 year contracts lock in precariousness of employment. They mean that the legal scholars employed under this regime since 2009 have at best seven years to prove themselves fit to be Associate Professors or otherwise their contracts can or will be terminated, sometimes after three or five years on review.

Precarity is a neoliberal's wet dream. The problem is that its seed falls upon the ground. It is secure employment which produces better workers., better researchers, better results, not a mad rush to prove oneself in a short period of time to be a super star.

The neoliberal legal system rewards those who can turn out pieces of dross and fluke an occasional grant. It rewards those who get good student responses which in tun creates pressure for grade inflation for example.

The other thing about precarious employment is it employs the young, the gullible, those who are malleable and compliant and in truth yes men and women for the neoliberal management. Neoliberalism recruits in its own image.

The drive to increase student enrolments (paraded as increasing access to university and hence a matter of equity but in reality all about bringing in money and makign money within increasing staff levels or improving infrastructure) has resulted in students whose capacity to undertake University study must be called into question.

A large number of students in my first year tax course were functionally illiterate. They did not attend classes, were resentful of having to attend let alone participate in tutorials and had the social skills and graces of new born giraffes. They hated working in groups, even though that is what will happen to many of them when they begin work in the public service, or even in law firms working to a partner.

Thornton's book gives life to these lived experiences, experiences I would wish on no one.

There is one thing missing from Thornton’s book, and that is any sense of an alternative to the barbarism that has taken over our law schools and Universities. Thornton is a social liberal and as such eschews the idea of real resistance.

For me the answer is struggle, the idea that unionists in universities can resist the seemingly inexorable descent into the fires of neoliberal hell. As we look around the world we can see rebellion against neoliberalism in many Arab countries, in Europe and we got glimpses of that in the Occupy movement.

But the lack of struggle, the 30 year class war the one percent has waged against us has been so successful that here in Australia there is, apart from the occasional outburst, little sign of struggle. Even at the ANU, where the Vice-Chancellor has sacked 13 of the School of Music's 32 staff, the lacklustre response of the unions and its members has consigned those jobs to the scrap heap of history. Encouraged, the Vice Chancellor will be sharpening his axe for the next brutal attack.

Until the education sector realises that it is through class struggle, through strikes and other resistance to the vicious Vice 'chainsaw' Chancellors and the governments of whatever persuasion that stand behind them, working life in neoliberal universities will only worsen and worsen. That is, if you still have a job.

And that ironically is a problem for capitalism. Neoliberalism is an ideology destroying what is best for capitalism - thinking, creative, curious staff and students questioning within limits how things are now done. We are creating a world of automatons to teach robots.

If there is hope, it lies in the proles. What neoliberalism is doing is turning all workers at universities into proles and making them the snake oil salesmen and women of a degraded education. In that reality, when it hits the consciousness of staff, lies the antidote to neoliberalism in the Universities and the destruction fo critical though it is wreaking across Law Schools.

Privatising the Public University: The Case of Law is a great read for those wanting to understand the degeneration of legal education in Australia specifically and the neoliberalisation of universities more generally.