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A O'Donnell and R Johnstone, Developing a Cross-Cultural Law Curriculum, Cavendish, Sydney 1997, x+136pp, ISBN 1 876213 31 0, pb £19.95.

Reviewed by NK Sam Banks

Lecturer in Law
University of Huddersfield

<[email protected]>

Copyright © 1999 NK Sam Banks.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

This is a timely and important work that adds to the growing field of legal pedagogy and the impact of culture. Although written by Australian legal academics and using Australian legal education as a template, the wider issues of critically examining law and culture transcend national differences and can be applied to many aspects of legal education generally. Indeed, the authors draw on a rich variety of sources on race, ethnicity, gender and sexual orientation (among others) from all over the world.

The book consists of four chapters, the first of which initiates the general discussion of the cultural context of law. It is then divided into three separate examinations of equity, property and tort law, each demonstrating how cross-cultural considerations and examples may be interwoven throughout the curriculum. Some of the most useful and thought-provoking features of the latter chapters are the curriculum suggestions and learning activities that focus on how cross-cultural learning might be integrated into the discussion and application of law. This ties in with the authors' over-arching challenge to lecturers to examine their syllabi for possible hegemonic examples lurking in case law, critical commentaries, narratives and the like.

Chapter one, "Thinking Culture in Law", examines the difficulties in bringing culture out into the open. In too many instances, "culture" is thought to be something that others - i.e. non-Anglo-Saxons - have and, thus, cross-cultural legal issues are considered separately as discrete categories, relegated to a secondary, add-on status. The challenge, then, is to examine and interrogate the underlying assumptions the law uses to make sense of the world around it. This is not such an easy task given the difficulty the dominant culture has of seeing itself as a "culture" in the first place. There are some wonderful examples here of turning the idea of culture on its head and subjecting "so-called traditional Anglo-Saxon cultural expressions" to the same kind of investigative rigour that other cultural traditions are put to (at p 10). For instance, imagine a Royal Commission into Christmas or the British monarchy undertaken in the same spirit of inquiry as the (Australian) Hindmarsh Island Bridge Royal Commission set up to determine the authenticity of Ngarrindjerri beliefs about Hindmarsh Island (Kumarangk) (at p 9). In this chapter there is a list of general teaching strategies, ideas and questions lecturers can ask about their syllabi in developing a cross-cultural law curriculum. One example here is asking whether curriculum material gives validity and legitimacy to the knowledge, experience and language of the learners rather than operating out of a predetermined notion of the nature of knowledge (at p 17). Similarly, it encourages us to draw case studies, examples, readings, analyses, problems and questions from a variety of social contexts (at p 19).

As an introduction to thinking culture in law, this chapter is good as far as it goes. However, it leaves unexamined some important issues with respect to ideology and pedagogy and how these relate to the understanding of law. While there is a general discussion of some pedagogic principles which are then used throughout the remainder of the book in the specific contexts of equity, property and tort, it would have been useful to make more explicit the impact of ideology on legal pedagogy and culture. In particular, it might have been helpful to examine more thoroughly the way in which ideology informs teaching, learning and understanding and, especially, how this cuts both ways between the lecturer and student and vice versa. A person's own world view will inform the way she or he understands, interprets and teaches or learns law, a view that owes much to the present discourse on postmodernism and education. Thus, some further information on the nature of interpretation and reflexivity would have been welcome. These issues are hinted at, and should have been explored in greater detail. In a similar vein, more might have been made of the information that fewer law graduates are either seeking or obtaining legal careers as that term is traditionally understood. Whether the reasons lie in greater academic interest in, or fewer professional opportunities for, law as an area of study, there has been a focus on legal education within a broader knowledge context. One aspect of this has been greater diversification in the academic teaching of law. At the same time, there is a greater emphasis on developing intellectual skills that enable students to make better choices in their lives, to become better citizens and to determine their place in the world and their relationships within it. At the very least, this seems to embrace the notion that law must be taught within the context of the society in which it operates. Additionally, there have been calls for a wider, "whole person" approach to university education that seeks to foster and promote personal autonomy, intellectual independence and the development of critical lifelong perspectives. Taken together, this information ought to place cross-cultural considerations at the forefront of the education project. Again, these points could have been put forward more vigorously than they were.

Once the foundation for considering the cultural context of law has been laid, the remaining chapters of the book examine specific areas of law within differing cultural contexts. Equity, property and tort were chosen as representative of those most opaque areas of the curriculum that present law laden with accumulated, taken-for-granted assumptions about the social world and the way it is organised by law. Here two of the book's greatest strengths - breadth and depth in cultural outlook in combination with curriculum suggestions and learning activities - come together to provide some excellent examples of how to explore and integrate law from a cross-cultural perspective. For instance, equity is frequently taught with a focus on the trust as a means of wealth preservation and capital management, rather than in a way that emphasises a moralistic code of high standards of conduct enforceable by the courts. An examination of equity texts reveals the relative paucity of information related to the doctrines of unconscionabilty and undue influence. Further examination discloses the dearth of commentary and narrative that link culture, gender and ethnicity to these doctrines. After setting out various examples of how the doctrine of unconscionabilty affects women and ethnic groups, the authors suggest a learning activity to begin the students' process of unpacking the policy issues underlying the application of the doctrine and to consider explicitly policy reform. This aspect of the book is very well done.

The discussions of land law and tort follow a similar pattern of exposition and consideration of culture in law. The chapter on property law begins with the observation that property "has a reputation as being both mystifying and boring, precisely because it doesn't seem to have any relevance to real life" (at p 65, a charge that could easily be levelled at equity as well). The challenge, then, is to make it relevant (but to whom?) and to give students something to which they can cling as they navigate the often murky realm of property. This chapter has a strong Australian flavour as it deals with issues of Aboriginal title and culture, but also transcends issues of native title to examine how property law more broadly obscures social relations. For instance, there is a discussion and curriculum suggestion focussing on the family home as the site of most people's experience with private property law and how the law obscures or erases cultural considerations that influence how migrant families enter into home ownership. There is also a delightful example of how difference can be erased in the classroom: upon hearing a Marxist analysis in answer to the question "what is property?" the lecturer consigned any consideration of the issues raised to the sidelines with the reply of yes, fine, but none of that is examinable. So much for broadening the intellectual horizons.

The chapter on tort law continues the over-arching theme of exploring whether the law takes account of the social reality of subordinate groups in society (at p 105). The aim here is to get students "to view personal injury not as a `torts' problem but as a complex human relationships problem involving complicated factors of ethnicity, gender, language, professional power and social policy" (at p 106). In considerations of gender and culture, the "reasonable man" is revealed to be anything but neutral and objective. Context is everything: due to their lack of power, migrant workers may well be in no position to refuse dangerous work, with significant consequences to their subsequent personal injury claims. Reasonable foreseeability and assumption of risk mean little to workers who feel they have no choice but to take the risk in order to keep the job. There is a similar consideration of so-called natural disasters which frequently reveal non-natural causes: earthquakes devastate Third World settlements which lack strictly-enforced building codes; floods are triggered by rains but caused by deforestation and soil erosion (at p 117). Equally problematic is a judiciary that feels unease with policy decisions because they are unelected, and elected representatives who make decisions that directly affect those with little or no power to be heard. Lastly, there is a splendid curriculum suggestion focussing on intercultural issues in bringing a negligence case to court and the importance of all law students leaving law school with the skill to work effectively with interpreters (at pp 123-124). This curriculum suggestion follows other academics' assertions that language translation on its own is often inadequate in addressing the difficulties faced by people with a non-English-speaking-background when seeking justice. Since many non-English-speaking-background people are not literate in their own language, and legal language is often complex and not easily understood, a mere translation will often be of little assistance. Thus, translated information can and will only make sense once the audience is familiar with the particular (here, Anglo-Australian) cultural context of the dominant language and institutions. Further complicating matters is the exercise of judicial discretion in assessing a non-English-speaking-background person's language proficiency and thus need for translation: "Some judges clearly regard their own efforts to communicate in English with [non-English-speaking-background] participants in proceedings as a personal challenge. After labouring in a form of pidgin English in one case, one judge concluded `See, you can speak English when you want to'" (quoted at p 124).

In terms of raising, exploring and encouraging cross-cultural and intercultural pedagogic considerations, these chapters work very well. Particularly useful are the curriculum suggestions and learning activities that build on earlier work so that students' views and ideas are continually being challenged and developed throughout the law curriculum. Examples of law in a cultural context are used consistently and imaginatively so that students can easily engage with the material. Cases, commentary and narrative are drawn from sources world-wide. What is somewhat surprising in a text on the importance of culture in context is the use of secondary citations to cases, commentary and narrative to illustrate the importance of culture in context. On several occasions the authors quote another author's case quote, commentary or narrative when perhaps it would have been better to source the original material themselves (see, for instance, p 29 note 33, p 73 note 22, p 78 note 34, p 79 note 41 and p 128 note 89). There is a danger in using secondary quotations and citations that the information may have been taken out of context - of particular significance given the book's focus and message.

The index, though helpful in isolating broad categories of topics, is not as complete as one would wish. There is evidence of selective indexing by including some authors of source material but not others. Initially, I thought the difference was one of type: book authors included, journal authors not. Closer inspection revealed this not to be the case, and the criteria for inclusion in the index remains rather a mystery. There is also some sloppy cross-referencing that catches some but not all cross-references throughout the book. Further surprising (and annoying) for a work that seeks to assist in developing a cross-cultural law curriculum is the lack of a bibliography. Rather than trawling through the footnotes for cites to cross-cultural and intercultural curriculum development material, it would be more useful if this information was contained in a discrete bibliography that would make the material more accessible.

These gripes do not detract from the importance of the author's tenet that culture and law are inextricably linked and demand investigation. Moreover, it is crucial that students begin examining law in a cross-cultural context early in their studies and then consistently throughout the remaining years of their education. Students need to hear about considerations of culture, gender, race, ethnicity, poverty, sexual orientation and class, and the law, early, so that these become normalised as part of the legal education discourse. Schooling - and thus entrenching - students in black-letter law for two and a half years and then introducing, say, poverty law or feminist legal theory in the final term of the final year goes a long way towards ensuring that these courses are seen as add-ons, "other", marginal and irrelevant.

An irony, of course, of producing this book is that the sort of lecturer to read it, and use it, is already curious about cross-cultural issues and how these affect legal education, and so in many ways the authors are preaching to the converted. The bigger challenge is, and will be, convincing others of the importance of a cross-cultural law curriculum: those who can't see the problem, because to them culture is "other".

Bibliography

Birks, P (ed) (1992) Examining the Law Syllabus: The Core (Oxford: Oxford University Press).
Birks, P (ed) (1993) Examining the Law Syllabus: Beyond The Core (Oxford: Oxford University Press).
Duncanson, I (1997) "The Ends of Legal Studies" [1997] 3 Web Journal of Current Legal Issues.
Giroux, H (1991) Postmodern Education: Politics, Culture and Social Criticism (Minneapolis: University of Minnesota Press).
Giroux, H (1997) Pedagogy and the Politics of Hope (Oxford: Westview Press).
Hepple, B (1996) "The Renewal of the Liberal Law Degree" 55 Cambridge Law Journal 470.
Usher, R and Edwards, R (1994) Postmodernism and Education (London: Routledge).