Expertise as privilege: Australian legal education and the persistent emphasis upon doctrine

Those legal scholars interested in the betterment of legal education have been telling their colleagues for decades that the traditional, ‘black letter’ approach to the teaching of law is unsatisfactory. The problem with this approach, they argue, is that there is too much emphasis upon the study of legal rules and insufficient emphasis upon other, equally important, aspects of law such as legal theory, the social and political contexts of law, the interface between the discipline of law and other disciplines, and the unspoken gendered and cultural biases of law as an institution. Within many law courses, however, a black letter approach persists.

This paper offers two explanations for the ongoing emphasis upon legal doctrine. Firstly, a range of historical and social contingencies have contributed to the privileging of doctrine within Australian legal education; these contingencies include the preponderance of doctrinal legal scholarship, a lack of time, expertise and inclination to change on the part of many law teachers, the expectation by law students that they be taught legal doctrine, the university’s expectation of disciplinary heterogeneity, and pressures from the legal profession.

Secondly, and more importantly, an emphasis upon legal doctrine is an expression of Foucauldian power-knowledge which privileges the legal specialist. Few law teachers would explicitly defend a black letter approach to teaching law, but this approach nevertheless persists because many law teachers benefit from its persistence: it accords them power over others and status within the academy and the community, and contributes to the legitimisation of ‘law’ as a discrete and highly prestigious field of expertise.