COMMENTARY

A FOUNDATION COURSE FOR THE

LAW SCHOOL CURRICULUM:
History and Philosophy of Law

Patrick Kavanagh

istory and Philosophy of Law is the beginning unit in the Macquarie Univer­
H sity Law School degree programs. School policy insists that every student
who completes a degree within the School (LL.B. or B.Leg.S.) must study this unit.
Credit is never granted for the unit on the strength of studies completed elsewhere.
Students are required to complete the unit before undertaking further study in the
School, although in appropriate circumstances students will be permitted to study
another unit concurrently with the second half of History and Philosophy of Law.
The unit then is clearly perceived as an introduction to study in the School and as a
foundation for a student’s life in the study of law.
Gill Boehringer, in a piece published elsewhere in this issue has referred to the
crisis in modem legal education and reminded us that there has always been a
conviction at Macquarie Law School, found as far back as the foundation professor’s
inaugural lecture, that the law student of today must be educated to respond
creatively to the pressures that will be placed on law and lawyering in the future.
The crisis in legal education is itself part of a wider crisis in liberal legalism. Perhaps
the most significant aspect of this crisis in legal education and in law scholarship is
the slow but steady disintegration of the specialist character of legal discourse. This
has been marked for some time in statutory interpretation as judges and lawyers

133
134 AUSTRALIAN JOURNAL OF LAW AND SOCIETY VOL 5

swing to purpose and policy oriented interpretation, but is alsc apparent in the
common law itself as the judiciary “develops” the common law to meet what they
take to be the “needs of society”. It can be seen also in the white-mting of judicial
independence when governments are happy to use the legislative power of parlia­
ment to instruct the judiciary to interpret statutes so as to “promo e the purpose or
object underlying the Act”.1 In modem politics, the claim of the jidiciary to speak
for a set of values transcending the demands of the moment appears less and less
convincing.
It is in constitutional interpretation that the pressure on legal discourse has been
most interesting to observe. For many years the justices of the High Court were
agreed at least on a basic common law approach.2 If this unanimity has disintegrated,
there has been no coherence that has replaced it. Some have sought to root the
Constitution in an idealised “acceptance” by “the people” so that the Constitution
constantly guarantees attention to the “needs of society” by impartial institutions
operating through strictly democratic processes. This approach vould foster the
development of a critical jurisprudence drawn from the essentials of Westminster
constitutionalism.3 Others have sought to root the Constitution in the history of its
own making which is elevated to a movement of normative significance.4 This
approach is not only unconvincing; it holds no promise as the foundation of a critical
constitutional jurisprudence and may not even deliver on its promise to break
longstanding, knotty, constitutional conundrums.5
What is the responsible and thoughtful legal educator to do in tiese circumstan­
ces? One approach is to laud the passing of specialist legal discourse as a longstand- j

1 Acts Interpretation Act 1901 (Cth) S.15AA. Even more remarkable is s.UAB which threatens
to collapse the distinction between legislative, executive and judiciary intc one policy-directed
state machine.
2 Amalgamated Society of Engineers v The Adelaide Steamship Co. Ltd (Tie Engineers' Case)
(1920) 28 C.L.R. 129; Sir Owen Dixon, The Common Law as an Ultinate Constitutional
Foundation (1957) 31 Australian L.J. 240.
3 The late Lionel Murphy was the most articulate exponent of this appnach: “The original
authority for our Constitution was the United Kingdom Parliament, but theexisting authority is
its continuing acceptance by the Australian people”. Bistricic v Rokov (1976) 135 C.L.R. 552,
567. “The framers of the Australian Constitution, ... were certainly awire of United States
history. The struggles for independence, the declaration of independence, tie revolutionary war,
the framing of the United States Constitution, as well as the contributions o the liberty of man
by the great figures of the United States are part of the history of the Englisi-speaking peoples.
This history is part of our cultural heritage”. Attorney-General for Australii (ex. rel. McKinlay)
v The Commonwealth (McKinlay s case) (1975) 135 C.L.R. 1, 72.
4 This approach has significant support on the current High Court Bench. Set, e.g., on s. 92 Cole
v Whitfield (1988) 165 C.L.R. 360; on s. 117 Street v Queensland Bar Association (1989) 63
A.L.J.Rep. 715.
5 See the disunity following Cole v Whitfield in Bath v Alston Holdings (19$8) 165 C.L.R. 411.
1988-89 COMMENTARY 135

ing legal fiction and to celebrate the recognition of law as an instrument of policy.
The problems in this approach are to determine in what can the traditional critical
function of jurisprudence be grounded and to avoid the optimism of “progress”
according to which “the power of ‘the social’ has acquired an autonomous ethical
momentum in human affairs”.6 Another approach is the mirror image of the one
just summarised. It is to argue for a radical re-separation of law and policy and a
return to the traditional values of the rule of law. The problem with this approach
is that it drives lawyers into a self-justifying tradition which has its own validity but
is more and more peripheral to the facts of modem legal life and is less and less able
to grasp the real problems facing us.7
An interesting feature of the second approach above summarised is that it not
infrequently rests upon an historical argument. A typical form is that a range of
constitutional crises, from the granting of Magna Carta in 1215 to the baronial wars
in the reign of Henry III to the constitutional tensions in the reign of Edward I to the
relations between the Tudors and their parliaments to the civil war of the 1640s to
the rapid growth of the common law in the 19th century, are presented as events in
the long struggle for the rule of law:
British constitutional history is an allegorical drama which has played without
interval for 14 centuries. The leading characters in the drama are the King, the
People and the Law.8
This type of legal historiography views the past through the problems and ideals of
the present. It assumes the problems of law and government are always essentially
the same: a struggle for power in a Hobbesian war of all against all. The past
becomes “a mere prologue to a present” in which we seek “the realisation of the
liberal vision of individual freedom and collective prosperity captured in the idea of
progress”.9 The rule of law becomes a trans-historical concept, an absolute good
that can be taken for granted.
The unit H istory & Philosophy ofLaw is a response to the crisis in legal education
which we have been considering. It selects an historical approach as its tool but it
avoids the historiography just criticised. The unit does not attempt a broad narrative
sweep of its subject matter. Rather it adopts a “problems” approach, i.e. the unit
selects a series of distinct but related historical junctures which posed particular
problems in the ideas of law and government. The problems are chosen on the
conviction “that men and women make their own history (including their legal

6 Cp. Fraser, Statement of Objectives, in Study Guide for LAW 112 History & Philosophy of
Law 3 (Macquarie University 1990).
7 See, e.g., Bayne, Administrative Law & the New Managerialism in Public Administration, 62
A.L.J. 1040(1988).
8 Allott, On the Long Struggle for the Rule Of Law, The Times Higher Education Supplement,
No 854, 17 March 1989. See also G. De Q Walker, The Rule of Law, Ch 3, “Development
of the Doctrine” (Melb. U.P. 1988). For a convincing criticism of this type of legal
historiography see Horwitz, The Conservative Tradition in the Writing of American Legal
History, 17 Am. J. of Leg. Hist. 275 (1973).
9 Fraser, supra note 6.
136 AUSTRALIAN JOURNAL OF LAW AND SOCIETY VOL 5

history) without always realising that they are so doing”.10 The aim is to encourage
in students the development of an historical consciousness to carry into their
continuing study and thereby to assist them to gain a measure of themselves as
students and practitioners of law. It is common to begin all sorts of courses with
historical background, often treated as not really relevant to modem practice but
offered for interest. History & Philosophy ofLaw is not like that. Its aims are serious
and ambitious: to encourage students to see themselves as actors in an historical
process, with a thoughtful and responsible feeling for themselves as lawyers, able
to respond creatively to the deep moral and political issues posed in their time and
place.
The unit History & Philosophy of Law is taught through a set of materials put
together in the School, printed in the University printery and purchased in the
University bookshop. The materials were selected and edited and the editorial
commentary written, largely by Andrew Fraser (a senior lecturer in the School) in
the late seventies/early eighties. Each year the teaching team, usually about six,
monitor the materials and commentary. Much of the materials now have had
substantial revision. The materials proceed by raising issues and problems and are
designed to be taught in tutorial discussion. Full-time students meet with a tutor for
two, two hour tutorials per week. There are no lectures in the unit, consistent with
the School’s emphasis on small group teaching. External students are offered a
number of intensive tutorial sessions, compulsory and voluntary, held on campus
and in out-of-Sydney locations. Telephone contact between external students and
their tutors is frequent. External students also receive a number of audio cassettes
(usually about 20 over the year, each of about 50 minutes duration) in which issues
for discussion are identified and outlined. Assessment is by written assignments
which require students to come to grips with issues raised in the materials.
The unit begins by proposing to students some characteristic features in the
thinking of western people about law. We assume that students have come into the
School expecting to be exposed to intellectual puzzles about the rules of law, their
meaning and interaction, but not expecting anything profoundly puzzling about the
idea of law itself. We deliberately assault this complacency at the outset of the unit.
Students cannot be expected to develop an historical consciousness of themselves
as lawyers if they are unaware that our own taken-for-granted idea of law is not
somehow “natural” but is itself related to our own historical time and place.
The easiest way to make students aware of the contingency of their own
circumstances is to introduce them to something entirely different. The materials
therefore open with a piece comparing western European and Chinese ideas of

10 Id. at 4.
1988-89 COMMENTARY 137

nature, order and law.11 Not only does this piece make the comparison and establish
the contingency, it grounds western thinking in ideas of transcendent religiosity, the
god given dominion of humans over lesser beings of the earth (“command psychol­
ogy”) and the economic and social conditions of the pastoral peoples who formed
the Hebrew tribes. Reference is also made to the Greek & Roman capacity for
abstraction.12 These elements in western thinking are then related to a specific form
of law, namely positive law, which, whether in natural law or in human law, emerged
as a characteristic “western” form of law.13 The point is pushed by looking at
customary law in stateless societies and observing the impossibility of abstracting
custom from behaviour and expressing it artificially as rules in the manner of
positive law.14
By the end of this section of the materials students should appreciate that, in
western thinking, society, human interaction, order and law are not immanent in
nature but are products of reason and will, be they human or divine. The issue then
is : how do reason and will interact? How do we know they have not parted
company? In the case of God’s reason and will this is a theological issue. Thus, for
a medieval thinker such as Thomas Aquinas, his jurisprudence and his con­
stitutionalism were part of his theology. In the case of human reason and will the
issue is a philosophical and constitutional one: how do we understand the normative
power of reason so that we can institutionalise it to ensure public acts of will accord
with it?
The remaining materials in the unit could be regarded as addressed to that last
question. If we believe in the normative power of human reason, approaching this
issue historically must offer students a richer narrative in which to base their
interpretive commitments than the “history” at present attracting the justices of the
High Court in constitutional interpretation:
(T)he materials are selected on the basis that the question whether a rational
legal order might have been or might become possible in the context of a
particular historical setting must remain a continuing problem for all of us.15
So far the materials have not introduced the idea of history itself. This introduc­
tion occurs through a piece extracted from an article by the late Robert Cover.16 17
Students study this piece and two case studies discussed by Cover himself, namely
the law of the Old Testament, especially that given to the people through Moses,
and the First Amendment to the U.S. Constitution as it was understood in Bob Jones
University v United States.'1 In these examples law, history and destiny appear as

11 J. Needham & C. Ronan.The Shorter Science and Civilisation in China, Vol. 1, at 276-280,
282-284, 285-289, 301- 305 (Cambridge U.P. 1970).
12 The reference here is to geometry. Reference is later made to the invention of the Greek alphabet
and writing in this connection, through the work of Eric Havelock.
13 See R. Unger, Law in Modern Society, Ch. 2 (The Free Press 1976) who draws similar
connections between transcendent religiosity, “command psychology” and the form of law.
14 See Unger, supra note 13, on this point also.
15 Fraser, supra note 6, at 4-5.
16 Cover, Nomos and Narrative, 97 Harv. L.Rev. 4 (1983).
17 461 U.S. 574 (1983).
138 AUSTRALIAN JOURNAL OF LAW AND SOCIETY VOL 5

one composite package. The law constitutes the people who are its adherents and
becomes part of their history as they reach for their destiny. For example, the Lord
through Moses gave the people their law as part of their history in which he
constituted them his people and led them on an epic journey from bondage to
deliverance. The law cannot be understood apart from it:
When your son asks you in time to come, “What is the meaning of the precepts,
statutes, and laws which the LORD our God gave you?”, you shall say to him,
“We were Pharaoh’s slaves in Egypt, and the LORD brought us out of Egypt
with his strong hand, sending great disasters, signs, and portents against the
Egyptians and against Pharaoh and all his family, as we saw for ourselves. But
he led us out from there to bring us into the land and give it to us as he had
promised to our forefathers. The LORD commanded us to observe all these
statutes and to fear the LORD our God; it will be for our own good at all times,
and he will continue to preserve our lives.”18
A later piece from Rudolf Bultmann19 could be interpreted as arguing (inter alia)
that once God seemed to the Jewish people no longer to work through history there
was uncertainty about the proper narrative within which to locate the law. The
consequence was a crisis of meaning to which the characteristic response was
legalism. It was on such legalism that Jesus poured scorn. The suggestion is made
to students that the origins of Christianity lie in a messianic movement attempting
to return God’s providence to a narrative history of redemption and deliverance.
Of course, rules of law may be stated abstractly. But Cover argues that their
meaning, and hence their real existence in our lives, depends upon locating them in
a narrative of the history and destiny of our communal life:
We inhabit a nomos - a normative universe. We constantly create and maintain
a world of right and wrong, of lawful and unlawful, of valid and void. The
student of law may come to identify the normative world with the professional
paraphernalia of social control. The rules and principles of justice, the formal
institutions of the law, and the conventions of a social order are, indeed,
important to that world; they are, however, but a small part of the normative
universe that ought to claim our attention. No set of legal institutions or
prescriptions exists apart from the narratives that locate it and give it meaning.
For every constitution there is an epic, for each decalogue a scripture. Once
understood in the context of the narratives that give it meaning, law becomes
not merely a system of rules to be observed, but a world in which we live.20
(Footnotes omitted)
Thus is an inevitable connection established between law and human ideals and
aspirations:

18 Deuteronomy 6:20- 25, The New English Bible, The Old Testament (Oxford & Cambridge
1970).
19 R. Bultmann, Primitive Christianity 59-61 (R. H. Fuller transl. New American Library
1956).
20 Cover, supra note 16, at 4-5.
1988-89 COMMENTARY 139

our visions hold our reality up to us as unredeemed ... But law gives a vision a
depth of field, by placing one part of it in the highlight of insistent and
immediate demand while casting another part in the shadow of the millen­
nium.21
In a context like that of Australia which is made up, as it is, of a number of
communities, the effect of Cover’s argument is that they could be allowed “insular
autonomy”, under an overarching set of “imperial virtues”, through an appropriate
legal orconstitutional device (e.g. incorporation), to realise their own jurisgenerative
capacity. The question of narrative would arise at two levels : that of the “imperial”
Constitution and that of the constitution of each nomic community.
At this point the argument is proposed that, in western thinking, reason, history
and law enter human experience together. It is proposed to students that people who
live in stateless societies and understand their existence as thoroughly integrated in
the harmony of their surroundings can have no idea of history in the relevant sense.
Lacking a consciousness of the contingency of their own existence they can have
no sense of altemity. Consequently, they constantly reproduce themselves. History
and law in the relevant sense require an awareness of contingency, a sense of critical
distance from the normative basis of existing social arrangements, an understanding
that things might be other than they are. It is in this sense that, in the western legal
tradition, reason, history, law, justice, human ideals and aspirations enter human
experience together and are inextricably associated in one intellectual package.
Continuing the theme of law as an expression of reason and will, the materials
proceed to examine the “discovery of the mind” as the spring of human action. We
begin with some exercises designed to bring to students’ awareness the extent to
which, in modem thinking, we root moral responsibility in the individual mind. The
point of this is to give them a sense of the momentousness of the discovery of the
mind and the significance of this in the understanding of morality. Thus the
materials invite students to empathise with people who thought otherwise by
imagining away our taken for granted beliefs as to moral capacity.
With the discovery of the mind as the spring of human action appear the
beginnings of the idea of the power of moral judgment within each individual. These
issues are raised firstly through an interpretation of classical Greek literature,22
followed by some material on the moral philosophy of Socrates and Plato. There
then follows material from Aristotle, (The Politics) on the city or state as “a perfectly
natural form of association”, politics and citizenship, together with a description of
the working of Athenian democracy about the time that Aristotle was writing. The
materials then raise a serious issue of legal historiography by inviting a comparison

21 Id. at 9.
22 The interpretation offered comes from B. Snell, The Discovery of the Mind: The Greek
Origins of European Thought (Basil Blackwell 1953).
140 AUSTRALIAN JOURNAL OF LAW AND SOCIETY VOL 5

of the analyses of the Greek polis, citizenship and freedom, offered by Hannah
Arendt23 and Perry Anderson.24 Was the polis an institutionalisation of the normative
power of human reason appropriate and convincing within the moral environment
of the Greeks, or was it merely a political appendage to an oppressive and exploita­
tive mode of production? In dealing with this issue students not only have to analyse
some fairly subtle and sophisticated arguments, they have to take a stand on well
argued but opposing points of view. Students also have to deal with some issues
that are important now and throughout the unit, e.g., the relationship between law,
authority and power, law and reason; the nature of politics in both ancient and
modem understandings; different understandings of the notion of property and of
the relation between property and government, again in the ancient and modem
minds. It is through such problems and comparisons that the development of the
historical consciousness at which the unit aims is encouraged.
The unit then offers material on the remaining sources of the western legal
tradition: ideas of law and justice in ancient Israel, Roman public law and
jurisprudence, Christianity. Particular attention is paid to the Christian church and
its adoption of a system of government modelled on the Roman imperium: division
of the community into rulers and ruled (clergy and laity), episcopal and later papal
monarchy. The organisation ofthe Church in this way marked a retreat from classical
politics with the substitution of the faithful for the citizenry, knowledge for action,
monarchy for democracy, humility for courage, and the appearance within the
political community itself of mere subjects. It was a very specialised understanding
of the normative power of reason which led to this institutional structure for its
expression. Students are therefore asked, through a study of the history of later
Judaism and early Christianity, whether the organisation of the Church on a model
drawn from the Roman imperium was in fact a necessary development within
Christianity; indeed, whether it was consistent with the essence of Christianity. The
issue is important as the fact that Christianity was organised in this way was simply
crucial throughout the medieval period. It conditioned the character of all political

23 An extract is taken from The Human Condition 28-37, 61-67 (University of Chicago Press
1958).
24 An extract is taken from Passages FROM Antiquity to Feudalism 18-28 (New Left Books
1974).
1988-89 COMMENTARY 141

debales throughout that time. It led to a mystification of politics and ensured that
all political debate was conducted in terms of descending theories.25 According to
some historians the papal monarchy, as a governmental and jurisdictional institution,
became the catalyst and later the model for the absolutist royal monarchies of the
young nation states of early modem Europe.26 Other historians argue that the
inevitable conflict of spiritual and temporal authority was an essential factor in the
secularisation of politics27 and in the generation of the modem phenomenon of the
legal system and modem legal science.28
The materials now proceed to examine the emergence of feudalism from the mins
of the Roman empire. We observe the decay of classical politics in the replacement
of political bonds with personal bonds of dependence, the decline of the cities and
the union of economic and political power. It is suggested nonetheless, through the
work of Berman,29 that in the feudal law appears the genesis of many ingredients of
modem legal consciousness. This brings out two important theses of Harold
Berman, which are subjected to critical examination; viz a new periodisation,
arguing for an essential continuity of European history from the late eleventh century
down almost to our own time; and a view of law as itself a factor in history, not only
regulating but grasping and redeeming the social relations to which it applies.30
The striking characteristic of the legal landscape in medieval western Europe is
legal particularism, a range of legal systems limited to specific contexts: feudal law,
manorial law, royal law, urban law, mercantile law, guild law, canon law. Can there
be generated out of these disparate legal orders a distinctively western legal
tradition? Yes, comes the answer from Berman, and the crucial circumstance is the
Papal Revolution. The term refers to the reform movement within the Church of
the 10th, 11th and 12th centuries by which the Church sought to purge itself of
secular control and establish itself as a corporate legal structure under the ultimate

25 W. Ullman describes ascending and descending theories of government in several of his works,
see, e.g.. Medieval Political Thought 12-13 (Penguin Books 1975). In descending theories
original power was seated in a supreme being and percolated down through a principle of
delegation.
26 See Kantorowic/., Mysteries of State: An Absolutist Concept and its Late Mediaeval Origins,
The Harv. Theological Rev., Vol. XLVII1 No. 1 (1955) at 65, where he discusses this with
particular reference to King James I of England (1603-24).
27 See, e.g., ULLMAN, PRINCIPLES OF GOVERNMENT & POLITICS IN THE MIDDLE AGES Part 1, Ch. 4,
“Assessment of Papal Principles” (Methuen & Co. 1961). The argument appears frequently in
Ullman’s work. . ... . .
28 This is forcefully argued by Berman. The classic statement is in his artic le The Orig ins of Western
Legal Science, 90 Harv. L.Rev. 894 (1977). Berman also argues that the roots of the
secularisation of politics are to be found in the “Papal Revolution.”
29 In this connection extracts are taken from Law & REVOLUTION: The FORMATION OF THE
Western Legal Tradition, (Harvard U.P. 1983). ^
30 I have used the word “redeeming” to suggest a reference to Robert Cover for whom “the term
‘redemptive’ ... has the connotation of saving or freeing persons, not only ‘worlds’ or
understandings”. Cover, supra note 16, at 35.
142 A USTRALIAN JOURNAL OF LAW AND SOCIETY VOL 5

jurisdictional authority of the vicar of Christ the King on earth, the Pope. For Berman
and other historians the Papal jurisdictional claim created the very concept" Western
Europe” itself, not only by uniting Western Europe under a common Christian
consciousness that maintained in one tradition the now separated ecclesiastical and
secular authorities, but also by splitting off eastern Europe where the ultimate
authority of the bishop of Rome and his directing it to political ends were rejected.31
Furthermore, according to Berman, the Papal claim generated a jurisdictional
conflict out of which grew the modem idea of legal system, the first of which was
the “new canon law” (jus novum).32 This is a provocative thesis as the idea of legal
system, with its attendant characteristics of the separation of adjudication from
government in general, the autonomy of legal reasoning and the appearance of expert
practitioners, has often been presented as a necessary aspect of modem liberal
political theory.33 The provocation of Berman’s thesis itself shows the value of
history in developing a critical study of law.
The Papal Revolution was a legal/jurisdictional event but it grew out of a spiritual
movement. The spiritual roots of the Papal Revolution lie in the reformed monastic
movement which began at Cluny in the early 1 Oth century. Having removed
themselves from the world, physically, politically and spiritually, the monks of
Cluny, under the spiritual and intellectual leadership of their charismatic and saintly
abbots, reflected back on it, subjecting it to a sort of holy critique. The monks thereby
sought not to condemn the world from which they had withdrawn, but to spiritualise,
redeem and transform it. In the 12th century they were joined in this holy task by
the monks of Citcaux and Clairvaux. If the Papal Revolution is part of this history
then the legalism and jurisdictions which it generated are set in a narrative of
redemption and transformation. Therefore, while for some historians the Church
reform movement is characterised by the Investiture Contest, for Berman and other
historians its meaning is far deeper:
However important the Investiture Contest appears in political history, it was
in fact merely symptomatic of far deeper problems in the interplay of secular

31 BERMAN, supra note 29, at 2. Walter Ullman argues that the longer survival of the ancient
political tradition in eastern Europe made the ecclesiological jurisdictional claim there much
weaker, supra note 27.
32 Berman, id.
33 See, e.g., UNGER supra note 13, at 52 el seq.
1988-89 COMMENTARY 143

and ecclesiastical forces in the period. It was, in Tellenbach’s familiar judg­

ment, not simply a dispute over investitures, but “a struggle for right order in
the world”: a struggle for all that was summed up in the Gregorian concept of
iustitia, or righteousness and true order in Christian society.34
For Berman, not only is “the zeal to refonn and redeem secular society” crucial, so
is “the concept that competing plural polities and legal systems can serve as
instruments of such reform and redemption,”35 along with the revival of Roman law,
the appearance of the universities and the development of scholastic method, which
structured and located the debate. The western legal tradition, the idea of legal
system and legal science itself were generated in the resulting intellectual and moral
ferment. The western legal tradition then is founded upon a specifically western
conception in which the desire for justice through law is woven into a common
Christian consciousness. If the characteristics of the Western legal tradition are
being compromised in contemporary legal thinking, then not only the western legal
tradition is in crisis. Also in crisis is the very idea of “western” itself as we teeter
on the brink of an age not only “post- liberal” but “post-western”.36
Berman’s work, it is submitted, provides the basis for the development of a
powerful critical jurisprudence.37 It is, therefore, itself submitted to critical analysis
in the unit as students are asked to compare Berman’s work with that of otherauthors.
Some of these other authors, especially Perry Anderson in equally powerful writ­
ing,38 offer provocative historical perspectives on the beginnings of modernism in
the appearance in the late 15th century of absolutist royal states, differentiated from
civil society. These comparisons also require students to confront thorny issues of
legal historiography, the role of law in history and the relationship between legal
and social change. Berman would place the roots of “modernism” in the second
half of the 11 th century and reject the sharp division between medieval and modem,
even when it is mediated through the reformation and renaissance. The broad issue
has already been met in the materials : is the law itself, in its redemptive role, an
agent of social and historical change? Indeed, are social and historical change even
possible without law within which to locate an alternative vision? Does the western
legal tradition incorporate a set of moral and intellectual ideals that are transhistorical

34 Duggan, From the Conquest to the Death of John, The ENGLISH CHURCH AND THE Papacy IN
the Middle Ages 65 at 70-71 (C.H. Lawrence ed. Burns & Oates 1965).
35 Berman, supra note 29, 363. In his Influence of Christianity in Western Law, The Sociology
OF Law 424 (W.M. Evan ed., The Free Press 1980), Berman argues Christianity, unlike Judaism,
sought to embrace people already subject to secular law. Christianity needed its own law which
could, if necessary, ground a critical attitude to secular law. Thus, the early martyrs relied on
their Christian nomos to dissent from the law by which they would otherwise be bound. In this
sense and granted that martyrdom was a central issue in the orthodox/gnostic controversy as it
was perceived by bishop Irenaeus in the second century, the Catholic Church has always existed
as a “nomos” or law-created world; but this does not demand a monarchical form: “ ... the early
Christian martyrs ... founded the Church by their disobedience to Roman law”, BERMAN, Law
and Revolution, supra note 29, at 31.
36 This is a constant theme of Berman. See Law AND REVOLUTION, supra note 29, at 41; The
Origins of Western Legal Science, supra note 28; The Religious Foundation of Western Law, 24
Cath. U. of Am. L. R. 490 (1975).
37 See, e.g., supra note 29, at 39 et seq..
38 See especially LINEAGES OF THE ABSOLUTIST STATE (New Left Books 1974).
144 AUSTRALIAN JOURNAL OF LAW AND SOCIETY VOL 5

to the extent that they may provide the basis for a convincing independent moral
critique of an existing order?
The introduction of the issue of separation of state and civil society, in the English
context, enables the matter of the common law to be raised : how did the English
common law emerge and develop a distinctive identity within the broader western
legal tradition? Students have already been introduced to the birth of the common
law in the 12th century, securely located within the monarchical kingship of Henry
II who sought to “re-state custom” in order to repair the damage done to the kingship
in the previous reign and to recoup the very substantial jurisdictional losses from
the same time, which jurisdiction had accrued to the benefit of both baronial and
ecclesiastical authorities.
The issue of the growth and character of the common law is posed in the context
of the emerging English nation state in the late 15th century. Every such nation state
had to make some sort of accommodation with the Papacy and the English answer
came with the Reformation of the 1530s. The resulting constitutional upheaval
strengthened both the English state and civil society.
The English reformation crisis developed from an explosive complex of con­
stitutional, political and theological issues of both English and European dimension,
that were brought to a head and demanded attention in the late 1520s. The materials
postulate the importance of Roman legal concepts and thinking in conceptualising
both the problem and its solution. This keeps before students the European perspec­
tive and suggests to them that the English Reformation of the 1530s is part of that
history whereby the western European Christian community disintegrated into
secular nation states. The question is : what impact did the new constitutional
theories and practices of the sixteenth century have on the traditional constitutional
structure?
In the context of the common law the materials begin with the famous hypothesis
of F. W. Maitiand39 that the English medieval common law entered the 16th century
weakened, discredited in the eyes of litigants, and likely to sink into obscurity before
the Romanised legal thinking coming with humanism, social and economic change
and powerful centralised imperial government. However, we know this did not
happen. To Maitland, the common law emerged triumphant, a feat that he attributed
to its strong intellectual integrity. In this way, Maitland presented the history of the
common law in early modem England in terms of threat and survival, and of essential
continuity from the medieval to the early modem period. Strong in the hearts and
minds of a dedicated corps of professional lawyers the common law floats above

39 English Law and the Renaissance, the Rede lecture for 1901 delivered in the University of
Cambridge. The lecture is published in several collections and, in our materials, is taken from
Select Essays in Anglo-American Legal History, Vol I, edited by a Committee of the
Association of American Law Schools (Wildy & Sons 1968).
1988-89 COMMENTARY 145

the social and political upheavals of the 16th century and thereby survives the forces
that would otherwise destroy it.
Maitland’s thesis was challenged by Sir William Holdsworth.40 It is presumably
the stature of these two giants of English legal historiography, creating a debate
between them, that has led to a remarkable response whereby many historians
interested in the period have analysed and criticised Maitland’s thesis, often in
lectures or essays under the same title. This is a little surprising. Maitland’s lecture
when published might have been weighed down with the erudition and scholarship
of “seventy-eight footnotes which displayed his copious learning in four lan­
guages”,41 but the lecture itself is speculative, apparently designed to entertain and
provoke rather than to convince. Many authors concluded that Maitland had
“overstated” the argument or some such but fewer questioned whether the model of
threat and survival is, in fact, the appropriate model through which to study the
common law in the 16th century. However, Maitland’s thesis had some distinctly
instrumental themes,42 as if the government of the 1530s had some sort of political
choice as to the law within which it would operate. If this were so, the western legal
tradition would have entered a period of crisis in England 400 years earlier than
Berman would have it. Also, Maitland tended to equate legal science characteristic
of the western legal tradition generated out of the academic analysis of the re-dis­
covered Roman law with the principles of the Justinian code itself. It has been
suggested that Maitland misrepresented the nature of Roman law “reception”, even
as it occurred on the Continent.43
Following this issue of the history of the common law and of legal consciousness
in 16th century England, students are introduced to the debate whether the Tudor
regime was absolutist and, if so, in what sense; they are asked whether Cromwell
intended to fit the imperial state of the 1530s into the existing constitutional
structure; the trial of Sir Thomas More in 1535 is studied as an important moment
in the humanisation of the law and the secularisation of politics. Students are

40 W. Holdsworth, A History of English Law, Vol. IV, 3rd ed., 252 et sea (Methuen & Co.
1945).
41 M. Blatcher, The Court of King’s Bench, 1450-1550 : A Study in Self-Help 10 (The
Athlone Press 1978). Dr Blatcher offers a spirited and vigorous defence of Maitland’s thesis
supported by her own research.
42 “... the perplexity of detail should not obscure the broad truth that there was pleasant reading in
the Byzantine Code for a king who wished to be monarch in church as well as state : pleasanter
reading than could be found in our ancient English law books”, Select Essays, supra note 39,
182-3.
43 “Continental legal historians have already begun to question whether what has been called the
Reception can properly be viewed simply as the displacement of old local custom by the law of
Justinian”, Baker, English Law and the Renaissance, the James Ford Special Lecture
delivered before the University of Oxford on 4 May 1984, reprinted in J. Baker, The Legal
Profession and the Common Law 461 at 466 (Hambledon Press 1986).
146 AUSTRALIAN JOURNAL OF LAW AND SOCIETY VOL 5

reminded of the manner in which lawyers of the period thought of law and politics,
as manifestations of order and reason creating a framework within which litigants,
lawyers and judges moved:
Law, like medicine, cannot fall victim, as abstract theological and philosophical
systems may, to sudden changes in mere intellectual fashion for it finds its
justification independently in its success in dealing with the problems life
presents to it.44
This approach, too, enables the issue to be re-cast. Recent historians of the common
law in the 16th century have focussed not on continuity but on the law itself. They
have found rapid change in the law and have searched for its connections with
political, social and economic change. At the same time, because the changes were
facilitated by the use of equity, legal fictions and signi ficant procedural reforms, the
common law retained an organic or surface continuity. Like the Church itself, the
law was renovated and reformed rather than overturned.45 This suggests changes
not only in doctrine but in common law technique consistent with the political,
constitutional and intellectual temper of the times. The Year Books may have ceased
in 1535, the “year in which More was done to death” as Maitland darkly noted,46 but
they were rapidly replaced with the more modem reports of Spelman, Plowden and
Dyer, which, in the case of Plowden especially, concentrated on the decision and
reasons therefor. Compared to the style of the Year Books, Plowden’s and later
reports suggest consciousness of a more active role for judges in shaping the law,
although within a continuing tradition. This “may have something to do with
Renaissance humanism”47 and a belief that human relations respond to the applica­
tion of human reason. Selected material suggests to students that only in the 16th
century do law, equity and statute begin to be differentiated clearly in the legal mind,
and that this in itself is an index of legal modernisation. Thus it is through “the
problem” of the legal historiography of 16th century England that the appearance
of the common law within the broader western legal tradition is dealt with, along
with the role of law in the early modernisation of England.
In the 17th century the Englishness of the common law, its historical character
as custom, its affinity with reason and its preservation in the accumulated intel­
ligence of lawyers are converted to a constitutional doctrine by the greatest syn­
thesiser of them all, Sir Edward Coke. Students study in some detail this doctrine
and its role in the constitutional conflicts of the 17th century. They observe how
the doctrine was undermined by the developing science of history and repudiated

44 S.E. Thorne, English Law and the Renaissance, in Essays in English Legal History 187 at
195 (Hambledon Press 1985).
45 A classic article is Thorne, Tudor Social Transformation & Legal Change, 26 N.Y.U.L.R. 10
(1951) which appears in the materials. See also Baker, Introduction to The Reports of Sir
John Spelman, Vol n, (Selden Society 1978); the above text draws especially on p.28.
46 Supra note 39, at 192.
47 Baker, supra note 43, 471 et seq; the quotation is at 476. J. Dawson, The Oracles of the
Law, Ch. 1 at p. 54-67 (Greenwood Press 1978) identifies factors internal to English legal
practice in the 15th and 16th centuries influential in the decline of the Year Books and in the
appearance and structure of Plowden’s reports. The history of law reporting is not dealt with
specifically in the unit materials.
1988-89 COMMENTARY 147

by Thomas Hobbes in his new science of politics. However, the political and
intellectual attractions of the theory of the ancient common law were enough to
ensure its survival. As in the sixteenth century matters needing legal resolution were
resolved within the common law.
The eighteenth century English constitution operated in a web of patronage and
dependencies among the members of the political nation. The sovereign power of
the Crown in parliament can be seen as the institutionalisation of this politics and
ensured the State was a mere extension of society in the sense that social and political
power were not effectively distinguished. Students are offered a range of material
enabling them to identify and assess this thesis and thereby form a view on the nature
of the English state that emerged from the constitutional settlement of 1688-1701
and on the political context of its central constitutional principle, the sovereignty of
the Crown in parliament.
Students are also offered material to enable them to consider whether the
eighteenth century principle of parliamentary sovereignty is an adoption of the
Hobbesian theory of sovereignty. If one takes the view that parliamentary
sovereignty was an institutionalisation of the politics of influence and patronage the
answer must be no. In this case parliamentary sovereignty merely seals off the
political nation so as to enable its jurisgenerative capacity to function, an analysis
which stands Hobbes’ theory of sovereignty on its head. The issue, when posed to
students, also raises important issues of legal historiography and of the relation of
law to society which can be addressed through some well known pieces authored
by Douglas Hay, John Langbein and Peter Linebaugh.48 The question is important
as the materials proceed to argue that the American colonists perceived the
sovereignty of the U.K. parliament in the eighteenth century as not only oppressive
but a corruption of the parliamentary tradition and therefore a threat to the integrity
of their own institutions and to their own tradition of political freedom; a threat
which, in the extrovert republican tradition, demanded their resistance. Using the
framework suggested by J.G.A. Pocock49 the materials examine the American
resistance and revolution as events within the British constitutional tradition. To this
end the questions are posed ; did the war of independence result in the creation of a
revolutionary and uniquely modem form of the state? or was the American Con­
stitution of 1787 simply a restoration of the eighteenth century English constitution
in the novel setting of American independence?50
The answer to these questions is approached through a detailed study of
American thinking on the sovereignty of the people. The same study provides a

48 Hay, Property, Authority and the Criminal Law in ALBION’S Fatal Tree 17 (D. Hay et al eds.
Allen Lane 1975); Langbein, Albion’s Fatal Flaws, 98 Past and Present 96 (1983); Linebaugh,
(Marxist) Social History and (Conservative) Legal History: A Reply to Professor Langbein, 60
N.Y.U.L.R. 212 (1985). .
49 Pocock, The Limits and Divisions ofBritish History : In Search of the Unknown Subject, 87 Am.
Hist. Rev. 311 (1982); 1776 : The Revolution Against Parliament, in J.G.A. POCOCK, THREE
British Revolutions : 1641,1688,1776,265 (Princeton U.P. 1980).
50 These questions are lifted from part of the unit outline written by Fraser, for the LAW 112 STUDY
Guide, supra note 6, at 27.
148 AUSTRALIAN JOURNAL OF LAW AND SOCIETY VOL 5

basis for assessing the threefold gift of eighteenth century Americans to modem
constitutionalism : the device of a written constitution; the theory of federalism; the
institution of judicial review. The historical significance of these is especially
important in Australia where we have made a conscious decision to incorporate them
in our own constitutional structure. Students are, therefore, initiated into the
scholarly debate as to the meaning of that Australian adoption. To determine the
historical meaning of those three developments, the materials begin with the
proposition that they were designed to institutionalise the achievements of the
American republican movement. This immediately raises the question of what was
the American republican movement, i.e. how did the Americans understand the idea
of popular sovereignty? It rapidly becomes clear that there is no simple answer to
this question; that it raises the problem of how the American constitutional theorists
of the eighteenth century understood their constitutional heritage and their own
historical narrative, reaching back to the foundation of their settlements in pursuit
of freedom and to escape persecution at home. We study the foundation decisions
Marbury v Madison5' and McCulloch v Maryland1 and observe the Supreme Court
justices, led by John Marshall, locate the Constitution in a particular narrative
understanding of American republicanism and the consequent effect on the meaning
of federalism and judicial review.
The theory of federalism as a principle of political association and the institution
of judicial review as a source of a normative constitutional order are tested through
a study of the sectional conflict over slavery. After a study of some judicial decisions
and scholarly comment, students are asked if the problem of slavery could have been
handled through such legal/constitutional means, rather than the trauma of disunion
and civil war.
The United States is not the only example of a modem republican constitution
bom of revolution. France provides the other great model to the modem world. We
examine the French experience of popular sovereignty as well. In doing so, we Find
that revolutionary France presents the starkest possible image of a political moder­
nity marked by the sharp separation of the state (representing the “general will” of
the nation) and civil society (the aggregate of the “particular wills” of the individuals
who together constitute the population of the state). A monopoly over the exercise
of public authority is vested in the state as the sole legitimate representative of the
national will. It follows that corporate bodies must be outlawed as potential usurpers
of public authority. Is that outcome inherent in the constitutional logic of popular
sovereignty? We consider whether the early legal history of the corporation in the
American republic might have opened up other possibilities for the autonomous
development of modem civil society. Neither w'holly private nor wholly public, the
corporation straddles the boundary between state and civil society. If legal moder-51

51 1 Cranch 137 (1803).

52 4 Wheat 316 (1819).
1988-89 COMMENTARY 149

nisation entails the institutional separation of state and civil society, where does the
private business corporation fit into the constitutional order of a republican polity?53
From this point the materials proceed to consider the role of the law, in the
Anglo-American context, in institutionalising an autonomous civil society. Anglo-
American legal history of the nineteenth century is dominated by the rapid and
unprecedented growth in private law, especially in the law of property, contract and
torts. This phenomenon can be seen as the legal institutionalisation of the will of
the morally autonomous individual. In that sense we see the law giving public
institutional setting to the ideals around which social interaction is organised, so that
those ideals might be realised in the life of the society. The question is : how much
further can we take this analysis? Can we form any firmer conclusions about the
relationship between the life of the law and the life of the society? The materials
proceed to address this question in relation to change in the nineteenth century law
of contracts, law of negligence and law of industrial accidents. The message from
a necessarily brief survey is that the matter is complex and the answers far from
straightforward; but students are introduced to the issues. Within the confines of
the unit, the issue for students could be generalised as: is 19th century Anglo-
American law, with its emphasis on private law, continuous with the western legal
tradition, its ideas and values, its ancient and medieval sources? This question
incorporates a deeper question also addressed in the materials: do the principles of
interaction in modem civil society engage the moral personality of the individual
social actor?
For example, in relation to the law of contract, nineteenth century development
(the “will theory” of contract) appears to defer to a philosophical understanding of
the essential subjectivity of value. No external restraint on the moral judgment of
individuals can be justified. The “will theory” of contract therefore institutionalises
the normative power of individual wills of social actors. Does this legal develop­
ment indicate a search for principles of human interaction that will be morally
convincing in the society, or a mere facilitation of the principles of the market
economy and a reduction of all human relations to market principles? Similarly in
the law of torts, how should we interpret a gradual shi ft in the basis of responsibility,
brought about through judicial reasoning, from strict liability to negligence? Were
the judges working out the legal implications of individual moral autonomy in order
to ensure that the law of responsibility for civil wrongs was convincing and made
moral sense in the society? or were they trying to release the entrepreneurial spirit
of society’s more adventurous members in furtherance of a judicially conceived
benefit for all?
Perhaps even more telling is the legal response to industrial accidents. The
materials select the fellow servant rule for study. According to this rule, if one

53 This paragraph is also lifted from part of the unit outline written by Fraser for the LAW112
Study Guide, supra note 6, at 28.
150 AUSTRALIAN JOURNAL OF LAW AND SOCIETY VOL 5

employee was injured through the negligence of another, responsibility could not
be sheeted home to the employer. Students study judicial statements of the rule in ,
the English case Priestley v Fowler54 and in the American case Farwell v Boston &
Worcester Rail Road Corporation55 as well as in some other less significant cases.
Students are offered various interpretations of the historical significance of this
doctrinal development. According to one line of thinking it was an attempt to
socialise the cost of industrial development in the interests of rapid economic growth
to which the judges were committed as a social good.54 56 This
55 approach argues that
the judges perceived industrial accidents as an economic problem. Other analysts
argue that the judges perceived industrial accidents as posing a political problem.
Thus, the intellectual sources of the rule lay in political discourse (in the broad sense)
not economic discourse. On this understanding, the judges were addressing a
political problem of authority and responsibility, not an economic problem of cost
distribution. In this view Christopher Tomlins argues57 that plaintiffs were attempt­
ing to throw the light of the law and of the judicial process on the process of
production and to provoke a critical legal commentary on the structure of m anagerial
authority and the issue of industrial safety. Until this time industrial safety had been
subordinated to a “political economy of speed’’.58 59 However, Shaw’s decision in the
Farwell case “recognised and endorsed the structure of disciplinary power that
permeated the employment relationship and yoked the public interest in industrial
safety to its perpetuation”.39 Andrew Fraser, however, argues the rule represented a
“republican attempt to devise a jurisprudential linkage between the normative
requirements of economic modernisation and the civic ideal of a free and inde­
pendent citizenry”.60 The enterprise appears as an association with the master at the
head and representing it to the outside world. Within, it is conceived as a juris-
generative community composed of free and active “citizens” each playing his/her
part to achieve the overall project. The fellow servant rule expresses the resulting
moral relations. The intellectual source of the rule is essentially the legal/political
discourse of property.
It is intended then, in this part of the unit, to place before the students significant
issues of the role of law in the process of capitalist modernisation. If that role is
purely instrumental, as some of the above interpretations suggest, then one might

54 1 M. & W. 1 (1837); 150 E.R. 1030.

55 45 Mass 49 (1842). .
56 Put in the materials via Friedman and Ladinsky, Social Change and the Law of Industrial
Accidents, in American Law and the Constitutional Order : Historical Perspectives
269 (L.M. Friedman and H.N. Scheiber eds. Harvard U.P. 1978).
57 Tomlins, A Mysterious Power: Industrial Accidents and the Legal Construction of Employment
Relations in Massachusetts 1800-1850, 6 Law & History Review 375 (1938).
58 Tomlins borrows this term from W.G. CARSON, The OTHER PRICE OF BRITAIN'S OlL: SAFETY
and Control in the North Sea, 84-138 (Oxford 1982).
59 Tomlins, supra note 57, at 414.
60 The quotation is taken from the outline in the LAW112 S tudy Guide, supra note 6, at 41. An
extract appears in the materials from A.W. Fraser The Spirit of the Laws: Republicanism
and the Unfinished Project of Modernity (U. of Toronto Press 1990). See also K.
Boehringer, Towards a New Understanding of Priestley v Fowler: English Republicanism and
the Concept of Civic Virtue (unpublished paper reproduced in the LAW112 History and
Philosophy of Law Course Materials 1989).
1988-89 COMMENTARY 151

say the law is so thoroughly involved with the values of capitalism that it cannot be
a significant agent of social reform. On the other hand, if the law in responding to
the problems of capitalist modernisation was drawing on its own tradition, discourse
and values, all of which are critically distant from those of capitalism, then the law
does possess the capacity to be a significant agent of social reform. This returns us
to the point at which we began : the value of developing an historical consciousness
in lawyers. It also maps out an intellectually and morally exciting future for
beginning law students as they complete their first year and move to further stages
of their study.
In 1989 the unit concluded at this point. In 1990 and in subsequent years the
second half of the unit will be re- organised so as to make more clear to students the
concept of legal modernisation in the institutional separation of state and civil
society. This will include some material dealing with the British settlement of New
South Wales and the extension of British legal culture here.
It is important to note the manner in which the Australian material is introduced:
the settlement of New South Wales is treated as an event in British history, not as
an event merely or mainly in Australian history. The former approach suggests to
students that the legal culture transplanted here was British and therefore had its
roots in the wider Western legal tradition. The latter approach would direct attention
to other considerations; e.g., the impact of British settlers and institutions on the
indigenous people. The former approach is thoroughly consistent with the aims of
the unit. There is no Australian material in the unit selected on a nationalist argument
that Australian students ought to study Australian material. The principle of
selection rather is that Australian students ought to be offered material that anchors
them in the legal tradition of which they are a part. Then will they be offered a moral
foothold to enable them as lawyers to develop a critical jurisprudence with which
to confront the deep moral and political issues of their own time and place. This is
not mere nostalgia, a foolish desire to attach Australia to a romantic past and thereby
dismiss as crude and cheap the real problems of today, to be left to our less sensitive
professional politicians. On the other hand, respect for the past is not a mere
expression of white Australian arrogance. The clash of cultures within Australia is
just one site where a creative, imaginative and sensitive response from lawyers,
among others, is required. When it is said that Australia is “an Asian country” we
must remember that a very significant part of our culture, philosophy, politics and
law lie in the Western tradition. The autonomous history of that tradition doubtless
is ending, if indeed it has not already ended; but that does not make it irrelevant.
Informed and intelligent politicians, lawyers, etc., who care about the future will
ensure that the best of the Western tradition is preserved. That is to do nothing other
than to take seriously the moral responsibility that humans have for their own
development. According to Harold Berman:
152 AUSTRALIAN JOURNAL OF LAW AND SOCIETY VOL 5

This certainly does not mean that the study of the past will save society. Society
moves inevitably into the future. But it does so by walking backwards, so to
speak, with its eyes on the past. Oliver Cromwell said, “Man never reaches so
high an estate as when he knows not whither he is going.” He understood the
revolutionary significance of respect for tradition in a time of crisis.61
To place ones back to the future is not to wish it would go away. It is to demonstrate
the courage to deal with uncertainty as it comes, a courage that is drawn from an
awareness of and respect for the strengths of the past.
The final question is: how closely is History & Philosophy of Law related to the
remainder of Macquarie Law School’s curriculum? The answer is “until now, not
very”. The reason for that is that the unit was conceived and put together some years
after the Law School began teaching a curriculum organised around quite different
pedagogic principles and objectives.62 However, the School recently adopted a
proposal put to it by its Curriculum Development and Teaching Committee that the
Macquarie Law School curriculum, or at least the core curriculum, be organised
around the institutional separation of state and civil society and that the material be
presented from an historical or developmental perspective.63 This is expected to lead
to a core curriculum composed of units taking as their subject matter contract, torts,
crime, property and constitutional law. The introduction of these new units has now
been approved by Academic Senate. The plan should ensure that History &
Philosophy of Law truly operates as a foundation course, that the historical con­
sciousness it encourages is strengthened in later studies and that students are
prepared by their education to act as thoughtful, responsible and well educated
lawyers, equipped to react creatively and more than adequately to the demands of
the twenty-first century, the coming of the new millennium in more senses than one.

61 Berman, Law and Revolution, supra note 29, at 41.

62 See my discussion in the article Legal Education and the Functionisation of the University,
supra, at 21 et seq.
63 See Fraser, Modernising the Curriculum: A Discussion Paper, (memo to the Curriculum
Development and Teaching Committee, Law School, Macquarie University) (August 1989);
See also Boehringer, Intellectual Background to Curriculum Reform, 2 PEARCED OFf 4:3-4
(1989). Boehringer presented a revised version of her paper to the Law in History Conference
at Macquarie University, 20-22 April 1990. In it she gave more attention to the role of history
in legal education and in curriculum design.