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Published online by Cambridge University Press: 24 May 2021
In 2019, William Twining and Harry Arthurs, academic lawyers whose careers peaked during the second half of the twentieth century, published memoirs revealing the central motivations and forces underlying their intellectual endeavor. Their books are a source of great nourishment, provoking readers to think deeply about the central challenges of the discipline of law and what might be done to bring it closer to realizing its full potential. They also reveal what it was like to be a leading academic who pushed disciplinary boundaries, challenging central disciplinary norms repeatedly, over many decades, while the universities and societies surrounding them grew in size and enjoyed increased prosperity and while academics—legal and otherwise—were cast in changing lights. During this time, writing and teaching about the nature and purposes of law moved from the desks of a few well-known figures into the hands of an increasingly diverse mass. This review considers and compares the contributions of these memoirs to the history of legal scholars. It also examines the relevance of each book to their primary readership: twenty-first century academic lawyers.
She thanks Professor David Sugarman, Dr Christine Beuermann, and Meredith Hagger for their helpful comments and suggestions on earlier versions of this article.
1. Twining, William L., Jurist in Context–A Memoir (Cambridge: Cambridge University Press, 2019)CrossRefGoogle Scholar; and Arthurs, Harry W., The Life of an Academic Lawyer–Connecting the Dots (Montreal: McGill-Queen's University Press, 2019), 138CrossRefGoogle Scholar.
2. See, for example, how Twining sought to push against parochialism by bringing to the fore a range of “Southern” jurists writing on human rights, from Sudan, Kenya, and India: Twining, Jurist in Context, 267, 269, and further discussion in Twining, William and Sugarman, David, “Jurist in Context: William Twining in Conversation with David Sugarman,” Journal of Law and Society 47 (2020): 217CrossRefGoogle Scholar.
3. Twining, Jurist in Context, 160.
4. To adopt Twining's descriptor.
5. Twining, Jurist in Context, xviii.
6. Ibid., xv.
7. Ibid.,103.
8. Ibid., 102.
9. Ibid., 221, 226.
10. Consultative Group on Research and Education in Law, Law and Learning: Report to the Social Sciences and Humanities Research Council of Canada (Ottawa: Minister of Supply and Services, 1983).
11. MacDonald, Roderick A. and McMorrow, Thomas, “Decolonizing Law School,” Alberta Law Review 54 (2014): 720–21Google Scholar.
12. Arthurs, The Life of an Academic Lawyer, 57.
13. Ibid., 123.
14. Ibid., 120. He does, however, fit squarely within Twining's definition of a legal theorist.
15. See, for example, the twenty-eight contributions made by eminent scholars to a recent work honoring Arthurs: Simon Archer, Daniel Drache, and Peer Zumbansen, eds., The Daunting Enterprise of the Law—Essays in Honour of Harry W Arthurs (Montreal: McGill-Queen's University Press, 2017).
16. Susan M. Bartie, Free Hands and Minds—Pioneering Australian Legal Scholars (Oxford: Hart Publishing, 2019), 2–6, 269–72; Bartie, Susan M., “Histories of Legal Scholars—The Power of Possibility,” Legal Studies 34 (2014): 305–27CrossRefGoogle Scholar; and Bartie, Susan, “Towards a History of Law as an Academic Discipline,” Melbourne University Law Review 38 (2014): 444–81Google Scholar.
17. Rhode, Deborah, “Legal Scholarship,” Harvard Law Review 115 (2002): 1330CrossRefGoogle Scholar.
18. W. Wesley Pue, “Common Law Legal Education in the Dominion of Canada's Moral Project,” in Lawyers’ Empire—Legal Professions and Cultural Authority, 1780–1950, ed. W. Wesley Pue (Vancouver: UBC Press, 2016), 148–84.
19. Bartie, “Towards a History,” 451–52.
20. For a strong argument for the need for more and better histories and empirical studies of the culture of legal education, see Adrien Habermacher, Institutional Cultures and Legal Education at Select Canadian Law Faculties (PhD thesis, Faculty of Law, McGill University Montreal, August 2019).
21. Arthurs, The Life of an Academic Lawyer, 137–38.
22. For similar arguments see: Sugarman, David, “Is the Reform of Legal Education Hopeless? Or, Seeing fhe Hole Instead of the Doughnut,” Modern Law Review 48 (1985): 731Google Scholar; and William L. Twining, Blackstone's Tower: The English Law School (London: Sweet and Maxwell, 1994), 24.
23. “Here's the question I'm left with, then. How do I deal with the fact that much of my hard work has gone for naught, and that whatever apparent success I achieved in changing people's thinking, the direction of public policy, or the function of public institutions, has proved transitory?” Arthurs, The Life of an Academic Lawyer, 137.
24. Ibid., 128–30 (“transforming”),131 (“progressive causes…”).
25. Ibid., 136–37.
26. Ibid., 98–99, 137.
27. Ibid138.
28. In England, legal scholars have largely been viewed as a threat to the establishment and kept in their place, treated as mere handmaidens to the profession. In contrast, United States legal scholars at elite law schools obtained considerable status in the late nineteenth and early twentieth centuries. See Sugarman, David, “A Special Relationship? American Influences on English Legal Education, c 1870–1965,” International Journal of the Legal Profession 18 (2011): 7CrossRefGoogle Scholar.
29. Twining, Jurist in Context, xiv.
30. Arthurs, The Life of an Academic Lawyer, 137–38.
31. The “Warren era” is the period in the United States when Chief Justice Earl Warren led the United States Supreme Court (1953–69). During this period, the majority of judges on the court took a dynamic and progressive approach to constitutional interpretation. Twining, Jurist in Context, ch. 4.
32. Ibid., 211.
33. See, for example, James R. Faulconbridge and Daniel Muzio, “Financialization by Proxy: The Case of Large City Law Firms,” in The Futures of Legal Education and the Legal Profession, ed. Hilary Sommerlad, Sonia Harris-Short, Steven Baughan, and Richard Young (Oxford: Hart Publishing Bloomsbury, 2015), 37–60; and Carle, Susan, “Race, Class and Legal Ethics in the Early Naacp (1910–1920),” Law and History Review 20 (2002): 97CrossRefGoogle Scholar. Seminal works in this field include Stuart A. Scheingold, The Politics of Rights: Lawyers, Public Policy, and Political Change, 2nd ed. (Ann Arbor: University of Michigan Press, 2004); Galanter, Marc, “Why the ‘Haves’ Come out Ahead: Speculations on the Limits of Legal Change,” Law and Society Review 9 (1974): 95CrossRefGoogle Scholar.
34. Talbot, Lorraine, “Trying to Save the World with Company Law? Some Problems,” Legal Studies 36 (2016): 513CrossRefGoogle Scholar.
35. Arthurs, The Life of an Academic Lawyer, 133–34; Richard Abel explains that Marc Galanter received a similar reaction to his seminal work “Why the ‘Haves’ Come out Ahead”: Abel, Richard, “How Marc Galanter Became Marc Galanter,” DePaul Law Review 62 (2013): 560–61Google Scholar.
36. Twining is largely dismissive of critical legal scholars, referring to it as “a movement that developed ‘trashing’ and deconstruction into an art” and does not explain or engage with feminist legal theory at all, only mentioning its existence very briefly. Twining, Jurist in Context, 87, 164, 242, 250. Arthurs is a little more measured, but devotes only two pages to explaining the movement and his reaction to it: Arthurs, The Life of an Academic Lawyer, 126–27.
37. See, for example, Archer, Drache, and Zumbansen, The Daunting Enterprise; Upendra Baxi, Christopher McCrudden, and Abdul Pailwala, eds., Law's Ethical, Global and Theoretical Contexts: Essays in Honour of William Twining (Cambridge: Cambridge University Press, 2015); “Symposium in honour of William Twining,” International Journal of the Legal Profession 18 (2011): 3–5 (which includes an introduction by Harry Arthurs who describes Twining as “the most influential figure in British legal education of the last half-century”).
38. Twining, Jurist in Context, 209–12.
39. Ibid., 147–58, 160–61.
40. An expression used by David Sugarman to explain one aspect of Nicola Lacey's contribution to our understanding of H.L.A. Hart: Sugarman, David, “From Legal Biography to Legal Life Writing: Broadening Conceptions of Legal History and Socio-Legal Scholarship,” Journal of Law and Society 42 (2015): 20CrossRefGoogle Scholar.
41. See, for example, Allen, James, “A Life of H.L.A. Hart: The Nightmare and the Noble Dream,” Ontago Law Review 11 (2006): 327Google Scholar; Schroeder, Jeanne L., “Beautiful dreamer: review of A Life of H.L.A. Hart: The Nightmare and the Noble Dream,” University of Colorado Law Review 77 (2006): 803Google Scholar; Dyzenhaus, David “A Life of H.L.A. Hart: The Nightmare and the Noble Dream” Journal of Legal Education 55 (2005): 606Google Scholar; White, G. Edward, “Getting close to HLA Hart,” Melbourne University Law Review 29 (2005): 317Google Scholar; and Nagel, Thomas, “The Central Question,” London Review of Books 27 (2005): 12Google Scholar.
42. Bartie, “Histories of Legal Scholars,” 321.
43. Margaret Thornton has created a volume of empirical studies to support this argument: Thornton, Margaret, Privatising the Public University, The Case of Law (New York: Routledge, 2012)Google Scholar. For a recent Australian example, see the Four Corners investigation into the treatment of international students, Cash Cows, Aired May 6, 2019, Australian Broadcasting Association.