Legal emigres and the development of Australian tort law.

• Jurisdiction: Australia
• Author: Lunney, Mark
• Date: 01 August 2012

[The intellectual history of Australian private law remains largely unwritten because Australia was seen as merely following the law as laid down in England. This article challenges the traditional paradigm by considering the influence of a number of legal emigres who came to Australia immediately after the Second World War. Concentrating on the law of tort, the article considers how two of these emigres--Wolfgang Friedmann at The University of Melbourne and John Fleming at Canberra University College--were at the forefront of a new breed of tort scholarship, not based on English traditions, that contributed to the increasing intellectualisation of the Australian legal academy.]

CONTENTS I Introduction II The Australian Academy before the Second World War III The Creation of an Australian Legal Academy IV Legal Emigres and the Law of Tort V Conclusion I INTRODUCTION

The history of Australian private law remains one of the great gaps in Australian legal history. Little detailed research has been undertaken which explores the content of private law in this country or that content's relationship with the law of England on which it was ostensibly based. Nor have any studies considered why any changes which may have occurred took place. Legal historians have ignored the possibility that wider historical changes may have influenced the development of private law because private law itself has not been thought a worthy subject of historical study.

This article considers one aspect of this heretofore forgotten history. It considers the extent to which academic thinking about private law in this country was influenced by a new breed of member of the Australian legal academy after the Second World War. It does not aim to be comprehensive in its treatment of such persons. Rather, the aim is to demonstrate that any history of Australian private law should consider not only legal doctrine as expressed in judicial decisions (although it must certainly include such analysis) but also the increasing sophistication of legal discourse in Australian law schools. This is not to suggest that judicial decisions were immediately affected by the new academic approach to tort law but neither is it to deny it had any impact at all; the nature of this relationship awaits further research. For present purposes the more modest ambition is to demonstrate that the broader intellectual discussion of law was influenced by the composition of the Australian legal academy. Put simply, we should not be surprised if we find that changes in thinking about Australian law can be explained in part by reference to changes in the academy. (1)

II THE AUSTRALIAN ACADEMY BEFORE THE SECOND WORLD WAR

Any change made by incomers to the Australian legal academy after the Second World War can only be understood by reference to the function and composition of the academy prior to that time. A number of structural features characterise this earlier period. First, there were only a small number of law schools. In 1939, the six state universities all had law schools, although Queensland and Western Australia commenced teaching law only towards the end of that period. (2) More importantly, the purpose of university law schools was seen as producing practicing lawyers. (3) This had two consequences. First, the majority of the staff in the law schools were members of the profession who taught on a part-time basis (usually to part-time students). The figures are truly staggering: only one Australian law school had more than two full-time staff members by the beginning of the Second World War--Sydney--where the third was a full-time tutor. (4) The predominance of part-time staff from the profession meant that Australian law schools were not a fertile ground for the creation of an intellectually dynamic culture and many within and without the profession saw legal education at universities merely as a proxy for professional accreditation. (5) Second, some of the very few permanent members of Australian law schools had close links to the profession. The best known example is Professor John Peden who was the Dean of the Law Faculty at the University of Sydney between 1910 and 1941. Bruce Kercher notes that, during Peden's period as Dean, 60 per cent of the lecturers were later appointed to the Bench, a path in practice open only to those who practiced. (6) The relative isolation of Australian law schools left little choice other than to rely on one's former students to provide tuition and the Sydney experience was replicated in other law schools. (7)

Not all of the permanent staff had as close an association with the profession as Peden but the reliance on part-time staff from practice necessarily limited the way in which the law degree as a whole could be taught. (8) A good example is William Jethro Brown, an important academic in the early Australian academy. Brown was the first Professor of Law at the University of Tasmania at the end of the 19th century and, after a stint in England and Wales, was later appointed Professor of Law at Adelaide Law School in 1906, a position he held until 1916. Brown published widely throughout his academic life and by the time of his return to Australia was a recognised scholar. (9) Brown's scholarship extended to legal education and he advocated a range of ideas that would find favour (even if remaining controversial) in a later period: the use of legal studies to prepare graduates for a range of studies beyond the practice of law, full-time study for law students to allow adequate intellectual engagement with legal material, and greater time for staff to specialise and research to improve the overall educational experience. (10) But in a law school where finances were tight (as they frequently were in Australia) and he was the only full-time staff member it was impossible to achieve such high-level reform of legal studies. (11) Moreover, the vast majority of the full-time academic staff had studied in England. This did not mean that they were not qualified for the positions they held but it did shape their thinking about the nature of legal scholarship in two important ways. First, it helped to reinforce the conventional view that there was little difference in principle between English and Australian (or other dominion) law. In the tort context, this is well illustrated by John Salmond, Professor of Law at Adelaide Law School between 1897 and 1905. In 1907, Salmond published a text on the law of torts, largely written during his time in Adelaide. (12) It was extremely successful and continued through many editions, new editors taking over after his death. Salmond's text, however, was a text about the English law of tort. It was written, said Salmond, to help lawyers and students in an 'extensive and in some respects difficult and imperfectly developed department of our legal system.' (13) It took later (English and Irish) editors to introduce some more comparative material. (14) The commitment to English law also affected curriculum design: in Tasmania, for example, the quest by the incoming Dean Kenneth Shatwell in 1934 to introduce legal history and constitutional history into law studies was to introduce English legal and constitutional history. (15)

Academic commentators have generally regarded legal scholarship in Australia during this period negatively because of its close association with professional practice. (16) In hindsight, this may be too harsh a conclusion. There is no doubt that it largely reflected law as a closed system, immune from influence from wider political, economic and social currents. But there were exceptions. Jethro Brown's principal biographer noted that if Brown's views were to bear a label 'it must be as a sympathizer with the American realists, of whom Holmes was the pioneer and Roscoe Pound the supreme theorist', (17) a sympathy that explains his decision to commit to the progressive goals behind the contemporary conciliation and arbitration legislative reforms and become President of the Industrial Court of South Australia in 1916. (18) Moreover, even if Brown was a rarity among early Australian academics, anyone familiar with Salmond's texts on torts and jurisprudence would struggle to say that they were not scholarly within the particular 'empiricist tradition of English legal training, with its emphasis on pragmatic, inductive reasoning, and its lack of concern for sociological jurisprudenc'. (19)

III THE CREATION OF AN AUSTRALIAN LEGAL ACADEMY

Significant changes to the Australian legal academy took place after the Second World War but this article focuses on one important agent of change: the type of academic staff who were employed in Australian law schools. This new breed of academic staff was not the result of the creation of a new type of law school; no new law schools were created in Australia between 1936 and 1960. (20) Nor should the extent of the change be exaggerated; Australian law schools did not change radically overnight. By the time of the creation of the new law school at Monash in 1964, there were still relatively few full-time academic staff and many of them had been educated, either at undergraduate or postgraduate level, at British, usually English, law schools.

But there were important exceptions to this generalisation about the academic staff of Australian law schools. Perhaps the first, and in one sense the most important, is very well-known. Professor Julius Stone was appointed to the Chair of Jurisprudence and Public International Law at the University of Sydney in 1941. Although Stone was born and educated in England, he was a first-generation Englishman, his parents emigrating to England from Lithuania at the beginning of the 20th century. (21) While Stone did study at Oxford, he also undertook a postgraduate degree at Leeds. More importantly, in the 1930s he had first studied and then taught at Harvard Law School where his scholarship was significantly...