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For at least 30 years, academic lawyers have been exhorted to teach law so that it is understood by law students in the context of society.[1] Much rhetoric has been uttered to demonstrate that this is being done, but has this new pedagogic imperative had the expected impact? Social context is taken seriously in very few of the eclectic array of courses and texts claiming to locate law in the context of society.
Traditionally, jurisprudence courses carried the burden of providing a concentrated exposure to a contextual perspective and conceptual framework. Later, Law and Society and “Law in Society” courses in law schools evolved, to offer a syllabus alongside, as an outgrowth of, or as an alternative to, the traditional jurisprudence course. Today, law schools commonly make at least rhetorical commitments to the need to teach all subjects in “context”. However, as the architects of new law school curricula and reformers of established programmes will readily concede, this is much easier said than done. For the purposes of this essay I am treating jurisprudence, law and society, and law in context as a cognate cluster of courses which claim to teach law in its social, political, economic, historical and cultural context.
Teaching “law in context” has been a growth area in the legal academy since the 1960s. The foundation courses in jurisprudence now accommodate Marxism, post-modernism, critical legal studies (CLS) and feminist legal theory. Many topical social and moral problems provide the vehicle for debate, analysis and theory testing. But does the “law in context approach” derived from jurisprudence or reflected in mainstream/malestream law and society texts and courses take the social context sufficiently seriously? I argue that it does not, primarily because of a flawed approach to curriculum design which is cravenly law-centred, obscurantist, and derivative of Anglo-American liberal legal ideological assumptions.
In this article I do four things. First, I discuss traditional and existing approaches to teaching law in context. Secondly, I outline the establishment and mission of the Waikato School of Law - my particular site of reflexive learning for critical literacy, and the pedagogic goals and values informing my approach to teaching/learning law in context. Thirdly, I summarise the Waikato Law and Societies course, in order to demonstrate my pedagogic strategy for taking context seriously; and fourthly I make suggestions for teaching and learning for critical literacy. Although many colleagues have worked on the course, I use the first person pronoun; I would be presumptuous to claim that they associated themselves with all aspects of this exercise in reflexivity.
The province of jurisprudence as currently taught in the U K, Canada and Australia has been determined elsewhere in useful detail.[2] No survey of the New Zealand practice is available but there is no evidence of a radical shift away from the Euro-American corpus of knowledge revealed by the Barnett survey. The legal academy has eclectically patched old and new social science theories about law, knowledge and social phenomena into the aging fabric of jurisprudence text and syllabus.[3] Theorists range from Aquinas to Unger; theories range from anarchism to utilitarianism; schools range from American Realism to Scandinavian Realism, with Marxism, CLS, postmodernism, feminist legal theory, and law-and-economics adding a more “modern” look.
Barnett's British, Canadian and Australian subjects apparently accept as universally relevant a cluster of theorists, schools, topics, and choices of textbooks. In my view, however, most of the theories and texts offer rather obscure routes to achieving what the legal academy says it wants them to do. The respondents to the Barnett survey strongly supported jurisprudence because it:
makes students think about the nature of law, gives a broader perspective and understanding of law as an important social activity, is a necessary part of higher education.[4]
I take this to include the development of reflexivity. I define reflexivity as a capacity to understand and act from a basis of critical literacy. Critical literacy involves a form self-awareness based on being sufficiently conceptually literate to read and critique key aspects of the social order and to understand one’s status and role in it. I infer from this that a justification for jurisprudence and cognate courses is, to use my language, to facilitate the development of critical literacy.
Obscurity is the enemy of critical literacy. The extent to which obscurantism characterises teaching intended to contextualise the law and thus promote critical literacy is alarming. The texts from Anglo-American metropole are obscurantist in this sense even in their context. Their obscurantism is more acute for teachers and students in the postcolonial periphery. Are our shared histories of colonisation, of the common law and of capitalism sufficient for the hegemonic British texts and Anglo-American theorists to provide a useful contextual and conceptual framework for, say, New Zealand/Aotearoa? Where do students become sensitised to the specificities and historical contingencies which make up the histories and hegemonies of their own societies? Surely such universals are too crude a nexus out of which to create a knowledge of law in the context of particular societies - that is, if one wants to take the “society” or contextual part of the law in context equation seriously.
From this position it is at first difficult to explain to social scientists outside the law why jurisprudence and law and/in society courses, in their many eclectic guises, are flourishing. Why, given their largely metropolitan and under-explicated approach to the social context, does the law in context rhetoric still speak in the imperative? Why are the courses mostly considered to be a “good thing”? Several coincidental factors may provide an answer.
From above there is official discourse[5] in which it is said that legal education must be training for the craft of lawyering, yet at the same time constitute a broad based liberal and/or liberalising education. Furthermore, the political economy of higher education means that the law school now operates within a competitive university environment in which its publication and research “outputs” are “benchmarked” against those of social science disciplines. The universities have, over time, come to recognise that the law in context field may be a fertile one for grants and that it is populated by a cadre of rather prolific academics.
From within the university law schools there is also an internally generated momentum. This comes from a generation of legal academics in Australia, Canada, the UK, the USA and New Zealand who have drawn much of their intellectual nourishment from outside the law and so now analyse and teach about the law at least in part through the prism of the (albeit often Euro-American) social sciences. They no longer rely upon the internally consistent logics of the law or the orthodox legal paradigm to supply their analysis.[6] Instead, critiques from within Marxism, feminism, postmodernism, cultural studies, postcolonialism, history, sociology, politics and economics have given this generation of scholars the conceptual scope and intellectual curiosity to move beyond relatively infantile, and largely implicit, law-centred (“leg[g]ocentric”?) explanations of legal phenomena.
Such new critiques have enabled notably Canadian and some Australian and New Zealand academics (as well as some in the Euro-American metropolitan establishment) to treat seriously those historical specificities and contingencies which make the context of their own societies. In Canada and Australia an autochthonous social-legal literature (in New Zealand the process is at a much earlier stage) is being generated despite the totalising influence of Euro-American epistemological frameworks and the monopoly of metropolitan publishing houses. This augurs well for taking context seriously, though I contend that the process has some way yet to go.
Barnett's survey shied away from specifically surveying the stated pedagogic aims and objectives of jurisprudence and cognate “law in context” courses in the law school curriculum.[7] Perhaps, given the characteristics of the curriculum in this field of interest, this omission is hardly surprising; yet, given the requirement nowadays to provide explicit course content and assessment statements, and clear aims and objectives “meeting best practice standards” and so on, it should have been possible to survey these.
What is evident from the survey responses about course content and the contents of texts in jurisprudence and law and society identified as “popular” is that nearly “anything goes”. While, all around, academic auditors trail, academics impose discipline and surveillance mechanisms on themselves through quality assurance manuals, and the profession and government impose discipline on them, it appears from the Barnett survey that some scope for relatively unaccountable academic autonomy remains.
The “anything goes” approach to syllabus is both appealing and problematic. Does it mean that these courses are a gestural anachronism to placate the liberal academy and its supporters? Can it be that they are not perceived as sites of counter-hegemonic struggle by proponents or opponents of such intellectual activism? The “anything goes”, even “law-centred”, approach, is appealing to curriculum designers and teachers because it is safe or because, as an antidote to externally imposed rigidifying requirements, it allows scope for exploration and possibly, even, the introduction of counter-hegemonic ideas.
The “anything goes” approach is also problematic, because eclecticism and reliance on the intrinsic worth of a nebulous curriculum make the field vulnerable to a form of malaise. Courses may become Trojan horses for pedagogic authoritarianism, essentialism, and instrumentalism which are among the more disempowering dimensions of contemporary academic culture. The credibility of such a course among even politically correct colleagues is undermined when symptoms of this malaise are recognised, and as a result the whole contextual enterprise may be jeopardised.
A related but separate source of vulnerability for the “law in context approach” is that courses which claim to contextualise, but which can not explain how they do this and hence justify their existence, simply get displaced by more coherently specified and “practical” courses. Greater relevance and cost/benefit are grounds that prevail without much ado in the present climate. The “measuring” of outcomes against claimed objectives is a line of attack which can easily be legitimated, if not actively precipitated, by funding formulae and academic audit requirements structured within new public management contractualism.[8]
Even if courses in the field are neither afflicted with the “-ism” malaise nor displaced for “irrelevance”s, if they fail to transcend the law-centred obscurantism perpetuated by so many of the texts, they may still perpetuate the legal mystique and leave the social dimensions and impact of legal intervention under-examined or concealed, thereby unwittingly becoming part of the very problem the “law in context” approach was meant to solve. Consequently, denied rigorous exposure to knowledge which gives them a reflexive view of the form and functions of law as an expression of ideology within a particular society, law students may be less able to develop for themselves an understanding of what, in power terms, it is to be a lawyer or to know the law.
The raison d'etre for the “law in context” approach is heavily ideologically laden and reflects its ideological provenance. The egalitarianism nurtured and sustained in the Fordist epoch (1945-1980s),[9] though experienced in different forms and at different stages in Australia, Canada, the UK, the USA and New Zealand, generated a number of similar educational goals. Most significant for our purpose was the fundamental challenge to educational, institutional and professional practices which maintained oppressive social hierarchies.[10] From the 1960s the challenge to hierarchy was reflected in the democratisation of higher education, anti-professionalism, the critique of the disabling professions, the deprofessionalising movement and, ironically, the professionalising of tertiary pedagogy to cater to the new students. Self-consciousness about the creation of self-perpetuating WASP masculinist elites led explicitly to a repudiation of “training for hierarchy”[11] by some legal academics, a massive growth of access to legal education, the dramatic transfer of legal education to legal academics from a system dominated by part time “downtowners”, and the claim to have “trashed” a “black letter” craft school version of legal training analogous to the “banking education”[12] model described by Paolo Freire, a radical educator of the period.
In the context of the post-1960s legal academy the “law in context” approach especially manifested in intermingled Marxist, political economy of law, CLS and feminist legal theory, with their critiques of hierarchy, attempted to offer students a more reflexive, if not conscientising,[13] comprehension of the social dimensions and ideological functions of law - an understanding of what, in power terms, it is to be a lawyer and to have access to legal knowledge. Critical literacy is akin to the process of “conscientization” developed in Third World adult education. This approach to pedagogy provides guidelines for developing the model articulated here. I don't want to pretend that teaching in the law school is the same as teaching in the barrios of Rio. The nexus between the two environments lies in the need to facilitate reflexivity as the basis for praxis/action. Wherever one attempts to do this, in my view, affective (attitudinal) and cognitive (substantive) learning and skilling need to be balanced and dialogical, the curriculum and the teaching/learning process ought to be challenging, not mystifying or disempowering, and tensions must be acknowledged between the subjectivity of the learner and objective standards of knowledge to be met by the learner.[14]
I unashamedly argue that certain basic conceptual tools are needed for a “law in the context of society” approach to succeed in enabling students to become more reflexive, let alone to mount an assault on hierarchy or the hegemonic ideology. These are, appropriately, the conceptual tools of the social sciences which were, after all, developed to analyse society. Such elementary conceptual tools include an understanding in their own right of: ideology; culture; power; the process of the social construction of identity; categories such as ethnicity, gender and class; social institutions such as the state, the economy and the family; and the way we conceive of the over-arching biophysical phenomenon of the ecology. These conceptual frameworks ought to provide the contextual prism through which we examine law in context.
Once we open ourselves up to being reflexive about learning, teaching and practising law, it seems to me that we must explicitly acknowledge in the curriculum that this reflexivity places individuals in particularly complex and contradictory roles in relation to the law. Study of “the” law is not marginalised by taking context seriously: it is contextualised, and becomes a complex, contradictory notion not easily taken for granted. As such “the” law represents a conjunction of hegemonic power and knowledge which, as Thompson observed, is “imbricated at every level of society”.[15] Law is the dominant form of official discourse. Law constructs class, gender and ethnic identities. Foucault observed that law constitutes the subject often without revealing its own intervention.[16] For Gramscian theorists of ideological hegemony, the law is the “ideal synthesis of 'coercion and consent'“.[17] To challenge the rationality of the law is to challenge hegemonic liberal legal ideology. It is to question the “social contract” binding citizen and state in a supposedly consensual and rational pact - scary stuff!
To be reflexive about the gendered and racialized character of “the” law in a settler society and its power to construct identity is to swallow a bitter and embittering pill. Writing about the “laws” of aesthetics imposed by the hegemonic English cultural establishment upon the Irish, Eagleton conveys poignantly how such 'laws' impose meaning on the individual:
each individual must somehow give the law to himself, work all by herself, discover the law inscribed in her very affections, sensations, and bodily impulses ... in short that historically new form of power that Antonio Gramsci has termed 'hegemony'. ... Any such hegemony is far more difficult to construct in colonial conditions. For the law in such conditions will appear visibly alien, heteronomous to the individual rather than the secret structure of her identity. It is the embarrassment of colonial ruling classes, as it is not so much of the metropolitan governing elites, that they figure as perceptibly “other” to their subordinates, perhaps speaking a foreign language or having a different colour of skin.[18]
Perhaps it is because of this “embarrassment” that the imposition of law and the construction of meaning in the ethnic (coloniser/colonised) relations of the colonial hinterland (Australia, Canada, New Zealand) has been executed with such savage ferocity. Nor can we ignore the double and triple “jeopardy” constructed by ethnic, gender and class hierarchies. A syllabus designed to conscientise and challenge law students to consider themselves, their professional aspirations and their place in the hegemonic and counter-hegemonic discourses of the law has to give students the conceptual frameworks for understanding the construction of class, ethnicity and gender.
When one looks through the “popular” and classic texts in jurisprudence[19] and law and society, it becomes crystal clear that these conceptual tools are seldom addressed in their own right. Most often texts treat such conceptual tools for understanding society as givens - largely as implicit epistemological props holding up the law-centred lens through which legal phenomena will be examined. If this judgment seems harsh, I repeat that even a casual perusal of some classic and, in their own terms, excellent law and society texts will support it.[20] Jurisprudence texts are especially eclectic and unselfconsciously Euro-American.[21] Even some new books look like only modesly refurbished versions of materials to which I was exposed taking jurisprudence in the late 1960s at London University!
Things are slowly changing, as illustrated by the 1991 Law in Context from Australia.[22] This edited collection starts to employ organising categories such as liberalism as the hegemonic ideology; gender; class; “aborigines” as socially constructed categories: conceptual tools which illustrate the specificities and historical contingencies of the impact of law in Australian society. Independently, and much more explicitly, a law and societies course has been evolving here at the University of Waikato.
One of the final acts of the Fourth Labour Government (1984-1990) was to promise to fund the creation of a new law school, the first in over 90 years. The proposed law school's mission, course structure and individual syllabus designs envisaged a legal education with strong social democratic commitments to ethnic, class and gender equity and the involvement of the state in guaranteeing these equities as a dimension of citizenship. Particular stress was laid on the Treaty partnership and “biculturalism” (though the meaning of this is elusive). The University of Waikato's submission was approved by the then extant University Grants Committee and Labour Cabinet on the basis of the Report of the University's Law School Planning Committee entitled Te Matahauariki.[23]
Literally, “Te Matahauariki” conveys the sense of:
the horizon where earth meets the sky; in a practical sense, a meeting place for people and their ideas and ideals; in a spiritual or metaphysical sense, aspiring towards justice and social equity. It alludes to a philosophy which reflects concerns that humans have for each other. It aspires to an environment of participation, of challenge, debate, and justice in the world as it was, as it is, and as we want it to be.[24]
The Te Matahauariki report spoke specifically of the creation of the Law school as a “reaffirmation and a professional extension of our commitment to biculturalism” and an “opportunity to give meaning to the notion of a partnership of good faith that is central to the Treaty of Waitangi”. The Treaty provided a meeting point for both Maori and Pakeha. It sought to encourage the integration of Maori and English law, a confluence of two streams of thought.[25]
The “overall goal” developed for the School was:
to contribute to the development of a New Zealand jurisprudence that supports the principles of justice, democracy, equality and a sustainable environment, and that respects and reflects the rights and responsibilities of all peoples and cultures.[26]
The guiding principles expressing the mission (or utopian vision)[27] which underpinned the School are summarised as:
the creation of an environment of participation, challenge, debate and justice, in which a legal education program would be developed on the basis of a commitment to professionalism, biculturalism, and the analysis of the law and the legal system within the society.[28]
The strategies envisaged to achieve this goal were:
- the creation of an environment that enables the staff and students to think freely and boldly and is free from the discriminatory attitudes and practices that deny individuals equality of opportunity and outcomes because of their sex, race, age, disability, religious or ethical belief or sexual orientation;
- the pursuit of excellence in teaching and research;
- imparting to the students the skills and knowledge to pursue careers that will give them self fulfilment and enable them to contribute to the wellbeing of their community.[29]
The LLB programme designed to realize the School’s mission consists of a four year law degree taught in context. Law I consists of four non-law subjects and three law subjects designed as a skill-oriented and contextual programme. The law courses are Legal Systems (structures, processes and institutions), Legal Method (research skills and analytical technique, computer literacy and ethical considerations) and Law and Societies (social context of law). All courses aim to realise a commitment to biculturalism and the analysis of law and the legal system within the context of society.
Law II contains a compulsory Jurisprudence course which has abandoned the “schools of thought”-based approach epitomised by the findings of the Barnett survey. At Waikato, Jurisprudence builds on the context provided in Law and Societies in year 1. The syllabus is explicitly designed to expose students to the philosophical and ideological underpinnings of core concepts found in the law. The focus is on concepts such as: sovereignty, justice, rights, property, liability, and legal personality. Critiques from within liberal legal ideology itself as well as feminist, Marxist and Maori perspectives are employed. The other Law II courses are Public Law A (New Zealand constitutional law and the organs of government) and Public Law B (administrative law relating to citizen/state relationships), Contracts, and two non-law courses. The privileging of jurisprudence reflects the commitment to teaching “law in context”. The privileging of public law (two courses) in this LLB reflects the School's social democratic pedigree by overtly identifying the state, that is, the public sphere, rather than the market, that is, the private sphere, as a key organising arena.
Law III aims to teach Criminal law, Torts, Corporate Entities, Land law, Equity and Succession, all in context and with an awareness of Maori concepts and practices. Critical literacy is facilitated through a compulsory course on the theory and methods of Disputes Resolution. The Disputes Resolution course enables students to role play powerful and less powerful, to comprehend ethnic, class and gender as key differentials in legal transactions, and to understand the scope and limitations of the hegemonic adversary model.
Law IV contains no compulsory subjects but offers a range of electives. These include legal practice oriented subjects like Evidence, Civil Procedure, Commercial Transactions, Family Law, Corporate Securities and Finance Law, Employment Law, and Environmental Law. Other electives cover the Treaty of Waitangi, Maori Land Law, Social Security Law; Fair Trading and Consumer Law, and Public International Law. The students are given choice so that they can define their needs and interests.
At the graduate (LLM) level concentrations of courses are evolving focussed on commercial law, the law relating to Maori and other indigenous First Nation peoples, and women and the law (especially the law relating to violence against women). These concentrations reflect the strengths of staff and the School's perception of how best to articulate its founding mission, overall goals and guiding principles.
Each year since 1991 when the LLB programme began the School has admitted 150-190 students from a very competitive field of choice to which no quotas have been applied. In race and ethnicity terms, 23% self identify as Maori and there is also a significant percentage of Pacific Island, Indigenous and Indo Fijians, New Zealanders of Chinese ancestry, Malaysians and other minorities. Fifty-eight per cent of the students are female, and at least forty per cent are “mature” students. The majority of students self identify as New Zealanders of European extraction (Pakeha). Whether they are graduates or not they must take the Law I programme. Only 10% of the students have no previous tertiary experience. The student group is thus very heterogeneous in terms of race, gender, class, age, educational and experiential background, and motives for studying law. As can be imagined, it is no simple task to assist such a group to develop reflexivity about law and lawyering and at the same time to facilitate them in learning the difficult conceptual vocabulary of the law and the social sciences which are needed to study law in context.
The Law and Societies syllabus provides a concrete case study for illustrating how I gave effect to an approach to teaching law in context. My commitment to facilitating reflexivity through teaching law in context is a commitment to promoting critical literacy on the part of students. The calendar prescription states that:
The purpose of this course is to develop understandings of the interface between society and law and the function and nature of law within New Zealand/Aotearoa; with special reference to the Maori socio-legal order and the common law and other selected legal systems and societies.
Planning what ought to go into the course I eschewed an “anything goes approach” and accordingly made some firm decisions about context, content and critiques based on answers to the following three questions.
1. Where are the antipodes?
Asserting our place in the context of New Zealand /Aotearoa defines course content. This made it essential to liberate the curriculum from simply imitating metropolitan (their centre) approaches to curriculum and to highlight the specific and historically contingent nature of relevant events, processes and hegemonic revolutions in this corner of the 'hinterland' (our centre).
Too often texts, readings and ideas from the metropolitan academy have in the past been delivered to students without a proper context of their own. Dependency on these paradigms impedes the transition to an authentic post colonial/postcolonial scholarship.[30]
2. Histories and Herstories: Who are the antagonists in a plural society?
Critical literacy for understanding law in the context of contemporary New Zealand/Aotearoa calls for an understanding of power. This is best reflected by studying the nature, origins and impacts of antagonisms involving coloniser and colonised, Maori and Pakeha, male and female, capital and labour, humankind and the ecology.
Three chronologies of events in the evolution of New Zealand law and public policy since the signing of the Treaty in 1840 were compiled and included in the course materials book. These chronologies have been compiled with a focus on women's experience, the Maori experience, and the working class experience in New Zealand/Aotearoa.
3. The False Dichotomy: Social or Economic?
Recognition of the inter-relatedness of social and economic policy and the legal instruments which implements such policies[31] enables us to avoid the false dichotomy between social and economic policy. Through a political economy analysis a critique of the construction of the public and the private spheres is provided in order to challenge essentialist understandings of social relations and instrumentalist understandings of economic relations.
2. Structure and Content of the course
The syllabus of the course is organized around the following modules:
Part I Society , Race, Class and Gender: Law and Public Policy.
Part II State/State-Free Societies: Belief Systems, Institutions and Processes.
Part III The Ecology: Environmental Law and Ordering.
Part IV Kinship Systems and Family Forms: Law and State.
Part V Market based and pre-Market Economies: Law, Capital, Land and Labour.[32]
Each part of the course commences with a module focussed on relevant Maori concepts, institutions and processes so as to counterbalance the predominantly Pakeha (liberal/social democratic, patriarchal, settler capitalist) paradigm which inevitably infuses the other sources. For these sections wherever possible Maori sources were used. These modules of the course ought ideally to be approached from a Maori perspective and using a Maori process.
Freire argues that although dehumanisation as a concomitant of colonisation is a concrete historical fact, it is not a given destiny, but the result of an unjust social order engendered by the oppressor. The oppressed are dehumanised ... by the loss of their land, their fisheries and the loss of their language through cultural invasion. But the great humanistic task of the oppressed is to recover their stolen humanity: to liberate themselves and to liberate their oppressors as well.[33]
Each year a significant number of the essays show a strong empathy on the part of Pakeha students for what they understand to be Maori culture and experience. (There were also some essays by male students revealing a strong critique of the hegemonic masculinity and identification with feminist critiques of it). Ideally a partnership approach allowing teaching and learning to be facilitated in the idiom of the subject by the subjects themselves needs to be facilitated.[34] This would mean men leading learning self consciously about masculinity, women leading learning self consciously about women, and Maori leading learning self consciously about tikanga Maori. Such a partnership approach avoids the risk of cultural trespass and the appearance of misappropriation of knowledge, expertise and identity. Walker highlights the importance of knowing about the “other” for critical literacy:
Freire's contention that 'knowledge of the alienating culture leads to transforming action resulting in a culture which is being freed from 'alienation' is borne out of the Maori experience.[35]
Critical literacy as an approach can expose students to the dominant epistemological (masculinist, metropolitan) frameworks in a fashion which enables them to grasp this alien knowledge in order to participate in the market place while retaining their identity and culture.[36]
As far as possible readings from within the relevant social science discipline on the topic are chosen, as well as those which provide socio-legal commentaries.[37] This ensures that the conceptual vocabulary offered to students enables them to analyse the law through the prism of the social context in its own terms.
3. Essays for critical literacy in the study of law in context
In the first semester of our case study (1993) assessment was conducted through the medium of an essay which could be up to 5000 words in length. The essay topics, including the option to design one's own topic, were handed out at the start of the semester. The aim was to encourage students to view each week of the subject as an opportunity to do research for their chosen topic. Synthesis of ideas from different parts of the course was signalled as a highly esteemed approach. Three teaching/learning sessions were devoted to explaining topics, refining approaches and sourcing preparation for research. These “workshopping” sessions revolved around grouping students by topic and encouraging peer learning and sharing; the teacher participated in discussion with each group in order to answer questions. Students also had the option of meeting the lecturer by appointment and during a weekly 2-hour open door period. Interestingly, students did not perceive that they had made much use of these resources.
The essay topics were constructed to encourage answers based on the students' own thoughts, some wider research and the use of the course materials as a resource. They were hard questions which required effort to interpret and tackle. Part of the workshop time was spent talking about techniques for researching, writing and structuring essays. Many students expressed anxiety about producing a long essay. Course appraisal results reveal students perceived themselves to have made only a little to some use of these workshops. Anecdotal feedback from students after they had completed the essay was positive and the value of the “rite of passage” appreciated. The essays, by and large, were well done and the ambitious syllabus and sophisticated questions were managed well by the majority of students.
The assessment criteria for the essays required the students to demonstrate an intelligent use of the materials book and to give evidence of some further reading and independent library research; to demonstrate an ability appropriately to use the conceptual vocabulary and terminology offered by the course; and to synthesise material from throughout the course. The questions circulated to students covered most if not all of the topics of the course, including one which allowed the students to frame their own question arising from the course.[38]
Not surprisingly, given the hegemony of the “banking” tradition in secondary and tertiary education, very few students chose to frame their own question. Typically Maori students explored topics which invited a Maori perspective and the topic of gender was treated almost exclusively as a “women's question”. More work is needed to address masculinity without reinforcing the implicit but nonetheless hegemonic masculinity of our epistemology. Inevitably, the essays and classroom-based discussions of gender relations reflected some anger (on both sides). Racial conflict was not overt in classroom discussions. Some gender- and race-focussed essays demonised, romanticised and essentialized. Most students had evidently struggled and managed to analyse the socially constructed nature of these categories.
Class was a category which aroused passionate interest in a few, mostly very capable Pakeha, students. At this conjuncture the class dimension of New Zealand society was not a prism through which the students, by and large, viewed power, social relations and the level of subsistence:
Global capitalism's theatre of terror continues to shape the social imagination of both the First and the Third Worlds with its insipid colonizing logic and its delusion producing politics of desire. Its shift from organised to disorganized capitalism (post fordism in the West) has been accompanied by a shallow optimism, a grandiose banality and vulgarity, an increasing need for the production of autonomous pleasure and a growing indifference to the issue of class and cultural oppression.[39]
Some of these judgments resonate with us. However, the increasing impact of PostFordist policies[40] was well understood, as were the inequalities that were being structured into social relations, though such understanding was not reflected in indifference so much as in a sense of powerlessness.
An assessment of the students' performance in essays and the end of year take home exam was that they had exceeded my expectations and have perhaps more reason to be confident in their grasp of the ideas, skills and understanding of the feelings which surround the subject matter of the course than their own assessment reveals they have.[41]
I put forward some prescriptive propositions for organising and facilitating teaching and learning “law in context”. These propositions borrow from the “paradigm for radical practice”[42] I learned from work in the sphere of professional education for the human services.[43] Some measure of critical literacy and a command of interdisciplinary knowledge have been mandatory in the human services curriculum for some decades. My propositions are that the course ought to provide a learning context for the following:
Some clients are likely to be “more equal than other citizens in terms of their command over power”. Some are greatly disempowered and unfairly served by the legal system. Furthermore, the power-knowledge couplet constituted by professional education not only renders students as subjects of power, it also constitutes them, or some of them, as powerful subjects:[44] Freire's dual (bicultural) beings who must manage the conflicting loyalties demanded by being a professional in the dominant culture and by their own indigenous culture.[45]
Critical literacy enables us to comprehend the nature of the material forces which structure the experiences which combine with ideology to constitute identity, and through this comprehension to move beyond naive voluntarism or vulgar determinism to recognise that people are created by, and can create, their social worlds. Hence race, gender and class are only ideological categories. In the constructivist paradigm they are understood as socially constructed. This proposition has particular salience to empowering students faced with life, work and worklessness in a PostFordist environment which may be hostile to their interests and those of many of their clients. Rights as a key element of counter hegemonic struggle may be comprehended not as mystification but as a political resource for change.[46] Second generation rights are emerging as the site of struggle for local and global citizenship.
The constructivist paradigm challenges essentialism. Essentialism based on biological and religious determinism legitimated the male supremacy and European supremacy of the nineteenth century. This form of essentialism justified the unequal legal and political status of the “other” race(s), women and the working class(es) within Victorian liberal/conservative discourse. The law is still redolent with echoes of its Victorian pedigree and, of course, is still serving the same interests. Today even the supposed corrective to the discriminatory past, namely “formal equality”, assimilates difference rather than differentiating between unequals. Hence law and the state continue to structure unequal social relations and much individual “rights-talk” constitutes an interpretive monopoly which may silence rather than give voice to the “marginal” for whom it is not their “first” language.
A critique of essentialism must not be conflated with an intolerance of self determination, separateness or the politics of difference. Instead, constructivism permits an ideology predicated on the possibility of change. It offers a means to understand difference and yet discover affinities. Through this discovery we may avoid demonising or romanticising supposed perpetrators and victims, superordinates and subordinates. This enables us to avoid perpetuating negative stereotypes based on ascriptive criteria. Such perpetuation is the essence of what we simplistically label racism, sexism and classism.
The Law and Societies syllabus is constructed on a framework based on four inter-related conceptual systems. These are adapted from the conceptual framework for critical literacy developed by Leonard.[47] Three conceptual systems are socially constructed; the fourth is the ecology. In the context of Pakeha and Maori New Zealand, two historically distinct and contrasting understandings of these systems need accommodating in the syllabus: the nuclear family system and the extended kinship system of iwi, hapu and whanau; the economy as a capitalist and profit maximising market and the reciprocal, kinbased mode of production for use and exchange; the state as a liberal and secular assembly of specialist institutions and the holistic, kin centred, spiritual-political social order of state-free Maori society. The inclusion of the ecology reflects the impact of holistic Maori perspectives on our approach. Maori society and its spiritual-political social order is incomprehensible unless the holistic (rather than anthropocentric) world view of Maori is recognised. Fortuitously, the new-found ecological sensitivity of some forces within the dominant society makes dialogue more possible than it was before an “environmental ethic” began to emerge in liberal/social democratic discourse.
Competing and complementary systems, like the state and state free social order, are conceptual tools and are best thought of as “platforms of process”,[48] not concrete, reified entities or living beings with minds of their own. Political institutions, kin systems and economies are the sites on which class, gender and ethnic antagonisms are mediated, managed, reproduced, compromised and settled. The dialectical relationship between humankind and the ecology ought to be tackled to overcome the limitations of an excessively anthropocentric and materialist analysis. The syllabus has included the ecology as the fourth dimension of our conceptual framework. Ecological theorizing and green political thought are now fundamental to critical literacy.[49] Understanding the interaction between humankind, society, law and the ecology is a surprisingly neglected feature of jurisprudence and law in societies curricula and texts. Critical literacy about the way humankind conceptualises and uses the natural environment will be crucial to facing the cultural, political-legal and economic challenge posed by ecological crises the planet is now facing.
The law and state practices are particularly powerful media for defining what is deviant and esteemed, for discrimination and emancipation, for reinforcing gender, race, class and age hierarchies and for promoting equity, for determining levels of material subsistence and for propagating the world view of the dominant ethnic group, class or gender in both hegemonic and counter-hegemonic forms.
The oppressive role of the state, law and legal system as platforms of process producing and reproducing structured race, class and gender inequalities must be juxtaposed with its other dimension. This is its supportive or emancipatory value. The counter hegemonic potential of the law and the state as a resource for making antagonisms visible, defending and advancing interests - that is, the politics of rights[50] - and procuring settlements, should not be neglected.
Students of law need to comprehend the limits of instrumentalist or reductionist analyses in which the law and the capitalist/patriarchal/settler state are understood as oppressive tools of domination. A dialectical perspective, without illusions, which highlights the contradictory and uneven character of the state and legal agencies,[51] transcends the conceptual shortcut of instrumentalism and may be more empowering in practice and less alienating reflexively.
The media for this facilitation process are researching and writing essays; classroom interaction; self organised, co-operative study groups; peer support; and meetings with the lecturer. As a teacher, one needs to recognise the impact of past and present events upon individuals causing anger, pain, suffering, hope and despair, disempowerment and guilt. Such feelings are inevitable when the subject matter of Law and Societies deliberately includes history which students may encounter as a history of themselves as the coloniser, oppressor, and pauperiser, or of themselves as the member of a colonised race, oppressed gender or pauperised class.
Critical literacy can not be achieved through guilt[52] or hatred or indoctrination. A dialogical process informed by history needs to be facilitated to achieve self awareness. A process of searching for affinities and respecting differences is needed. In my view, the Maori social order must be presented in its own right and not exclusively through the prism of the impact of colonisation. The hazards of masculinity as well as the hazards women endure in the contemporary form of gendered culture both need to be addressed.[53]
Public opinion poll data reflect the ever present spectre of the “backlash” against any gains made by the less powerful such as women, Maori and the unemployed.[54] These attitudes abound among the student population. To achieve critical literacy a “law in context” syllabus must avoid taking the easy route to “consciousness raising” by constructing a “victimology” of the oppressed to guilt the oppressor. This will be ineffective and may be counter-productive. Equally the materials and teaching/learning process must avoid overt and covert “victim blaming” which allows the oppression to be explained away through supposedly biologically determined or voluntarily contracted defects of the victim.[55] A “culture of denial” through, for example, “neutralisation” of recognition of the violations by colonisers, batterers and the like, through denial of injury, denial of victim, denial of responsibility, condemnation of condemners, or appeal to higher values, must not be perpetuated. Nor must the curriculum deny the past through the construction of revisionist, stylised histories.[56]
Law and Societies is not a compulsory subject at other New Zealand Law Schools. It is traditionally seen as an elective, as an optional extra. Neither the profession nor the legal academy have strong views about its content. It has the potential to adopt the “anything goes” approach and fall prey to obscurantism and many other malaises. Indifference about course content gives the course designer some space to take risks. Taking risks involves rewards and “punishments”. I have had both. Ultimately I have produced an explicit and defensible set of aims and objectives, a concrete syllabus to effect these, and a pedagogic strategy for teaching law in context which is explicit about the need to develop critical literacy.
A self-styled feminist colleague attacked the approach of the course for engendering a lack of that respect for “the law” which she saw as a prerequisite for any critique of the legal order, and specifically for “deconstructing” society. My response to the last charge was that the course in fact assisted students to construct categories for analysing the dominant “commonsense”, for example, ideology, state, race, class, gender, and power. Others imply that the approach ought to overcome “student resistance” to liberalising and correct ideas more robustly or through engendering guilt.
The conservative attack I experienced mimics attacks on the CLS movement exemplified by Carrington[57] in the USA. It is unnecessary to enter into the detail of the debate, though it is well worth exploring.[58] This debate corresponds to any debate between protagonists of “banking” education (craft school legal training) and protagonists of pedagogy for critical literacy. The radical critique reflects dimensions of pedagogic authoritarianism equally compatible with “banking” education and inimical to enhancing critical literacy.
I try, however imperfectly, through a dialogical discourse, to eschew a dominant liberal pluralist narrative which subordinates difference and which privileges only those affinities that are identified by the hegemonic modernist, metropolitan and masculinist discourse. This has not always been easy or welcomed, since the law lends itself to a “banking” approach to craft school teaching, not easily permeable by emancipatory critical literacy approaches and the new feminist, postmodern, de-colonizing or post colonial agendas which now form so much a part of the intellectual context in which “law in context” is taught. What I as a teacher continually strive to do is to continue to listen more carefully and to monitor more rigorously the learning process we set in train. I recognise that the processes of attitude change and the offering of opportunities for developing greater reflexivity continue to require strenuous examination. My experiences teaching critical literacy will continue to benefit from discussion with, and analysis by, others engaged in similar educational praxis.[59] Authentic partnerships bringing the subjects of our study into the classroom must be forged. The essence of teaching “law in context” for critical literacy is “to ground all knowledge of social life in human history, culture, and relations of power”.[60] I hope that others cannot accuse me of not “taking context seriously”, even if it is not their understanding of “context”.
Below is a selection of the lecture titles and readings which made up some modules of the course in 1993.
Society, Race, Class and Gender: Law and Public Policy
1. Conceptual Overview and Some Key Terms and Concepts - eg law, state, economy, family, region, class, gender, race, ideology, power, colonialism, social control, policy, property, land, culture, and ecology.
Glossaries, Directive Word Table;
Leonard “Key Concepts in Materialist Analysis”, in Personality and Ideology (1984);
Novitz, D and Willmot, B (eds) New Zealand in Crisis (1992).
2. Historical Overview: New Zealand Society, Public Policy and the Law since 1840. White Settler society 1840s-1890s, Family farm society 1890s-1930s, Industrial society (Fordism) 1930s-1970s, Market Society (PostFordism) 1980s-1990s.
Shannon, “The Development of Public Policy”, in Social Policy (Critical issues in New Zealand Society) (1992);
Boston, “Redesigning New Zealand's Welfare State”, in Dalziel, R and Boston J (eds) A Decent Society (1992).
3. Race and the Law: Public Policy And The Social Construction of Identity.
Race and Law Chronology - follow up the Hansard debates about any Bill listed as an Act in the chronology;
Belich, “The Victorian Interpretation of Racial Conflict”, in The New Zealand Wars (1986);
Spoonley, “Racism and Ethnicity” in Spoonley, P (et al) (eds)New Zealand Society (1990);
McConnochie, “The Meaning of Race” in McConnochie, K et al (eds) Race and Racism in Australia (1988);
Ritchie, “Hobson's Choice”, in Becoming Bicultural (1992).
4. Gender and the Law: Public Policy and the Social Construction of Identity.
Women and Law Chronology - follow up the Hansard debates about any Bill listed as an Act in the chronology; track material in the media on 1893-1993 Centenary of Women's Vote;
Novitz, “Gender” in Spoonley, P (et al) (eds) (1990);
James and Saville-Smith, “The Contemporary practice of Masculinity and Femininity” and “The Costs of a Gendered Culture” in Gender, Culture and Power (1989);
O’Donovan, “Gender as a Socially and Legally Constructed Category” in Sexual Divisions in Law (1985).
The State and State-Free Societies: Belief Systems, Institutions and Processes
1. Holistic Belief Systems of Maori and other Indigenous Peoples. Inter-relationships: social <-> legal order <-> spirituality <-> kinship <-> ecology.
Ritchie, “Values”, in Becoming Bicultural (1992);
Marsden, “God, Man and Universe: A Maori View”, in King, M (ed) Te Ao Hurihuri; The World Moves On (1992) reprint.
2. Liberalism, the “Rule of Law” and Ideology. Democratic States - governing and problem solving: social democracy/democratic socialism, equality, individualism, citizenship, economic rationalism/economic growth, the new (green) politics.
Goodwin, “Liberalism”, Using Political Ideas (1987);
Reasons and Perdue, '“The paradigms of social problems” in Reasons, C and Perdue, R The Ideology of Problems (1981) 4-14.
3. Maori Decision-Making: Hierarchy, Consensus and Participatory Processes for Social Order - the Marae, Hui.
Winiata, “Leadership in pre-European Maori Society”, in The Changing Role of the Leader in Maori Society (1967);
Mulgan, “Maori authority and decision making” in Maori, Pakeha and Democracy (1989);
Walker, “Marae: A Place to Stand” in King, M (ed) supra in King 1992;
Metage, “The Marae”, in The Maoris of New Zealand (1967) 227-238.
The Ecology: Environmental Law and Ordering
Ecological/Environmental Values and Law-making: Green/Holistic Maori versus Atomised World Views.
Milton, “Interpreting Environmental Policy: A Social Scientific Approach” (1991) 18 Journal of Law and Society;
Dobson, “Thinking about Ecologism”, in Green Political Thought (1990);
Ritchie, “Bicultural responsibilities: Stewardship in a New Environment”, in Becoming Bicultural (1992);
RMLR Working paper 29 The Natural World and Natural Resources; Maori Values and Perspective (or Perspectives?) (1988).
Kinship Systems and Family Forms: Law and State
1. Maori and Indigenous Concepts of Kinship, Identity, and Social Organization.
Metge”Kinship”, “Descent and Descent Systems”, “Marriage and Family”, in The Maoris of New Zealand (1967).
2. Monolithic versus Multi-dimensional Perspective on Family forms.
Eichler, “Beyond the Monolithic Bias in Family Literature” in Eichler, M Families in Canada Today: Recent Changes and their Policy Consequences (1988);
Whitehead, “Women, Men, Kinship and Property” in Hirshon, R (ed) Women and Property and Women as Property (1984).
3. Non-capitalist Modes of Production, Land, and the Tangata Whenua: Maori Social and Economic Order.
Metge, “The Maori before 1800” and “Basic Concepts of Maori Culture”, in The Maoris of New Zealand (1967);
Kawharu, “Customary Tenure and Colonisation” in Maori Land Tenure (1977).
4. Land, Colonisation and Law: Owning it or Belonging to it; Whose Perspective?
Williams, B The Passage of Maori Land into Pakeha Ownership - A Maori View (1987);
McHugh, “The legal status of Maori Property Rights: Common Law Aboriginal Title”, in The Maori Magna Carta (1991).
5. The State, the Market and the Law: Regulation and De-Regulation: Who Benefits?
Rudd, “Politics and Markets; The Role of the State in the New Zealand Economy”, in Holland, M and Boston J, The Fourth Labour Government (1990);
Mascarenhas, “State Owned Enterprises”, in Boston, J et al (eds) Reshaping the State (1991).
Below are the essay topics circulated amongst students enrolled in the course in 1993.
1. Frame your own question arising from the course, using one or more of the following directive words: analyse, criticise, trace and discuss. Note, your question must be approved by the instructor by the last week of lectures this semester.
2. Gender, class and racial identity are shaped in part by law and policy. Examine and trace the impact of law (or a piece of legislation or judicial decision) on the identity and power of people identified in terms of race or class or gender.
3. “Prendergast C J' s judgment in Wi Parata v Bishop of Wellington (1877) reflects that Victorian scientific racism which Belich argues (The New Zealand Wars, 1986) led to suppression of knowledge about Maori successes and Pakeha atrocities in the New Zealand Wars of the mid 1800s. Yet Maori were made British subjects in 1840 and the Native Rights Act was passed in 1865”. Explain and relate these observations.
4. “No student of the law or legal historian would ever subscribe to the myth that there was no class conflict in the New Zealand state”. Discuss and illustrate.
5. The law both reflects and reproduces our “gendered culture”. Outline some of the legal and cultural processes which serve to perpetuate the negative features of this culture and suggest some ways to change it.
6. “The holistic Maori belief system based on wairuatanga, whanaungatanga, rangatiratanga, manaakitanga and kotahitanga clashes with settler liberal ideology based on the rule of law, private property, secular materialism, individualism, majoritarianism, egalitarianism and democratism. Yet there are also points of similarity which are too easily ignored in the effort to contrast these belief systems in contemporary New Zealand”. Examine and compare the two world views in a discussion of these statements.
7. According to Colin James (The New Territory, 1992), the prosperity consensus is a spent force in New Zealand. Over the last decade the citizenship-rights-based model of the welfare state has undergone a dramatic shift towards a more targeted, residualist model. Underpinning this shift in the liberal conception of the state are competing views of the social order and human nature. Order, pluralist and conflict paradigms are frequently used by socio-legal scholars to classify these. Describe the paradigms and criticise the assertions.
8. The institutions of leadership and law-making processes are markedly different in Maori and Pakeha societies. Compare and contrast the underlying assumptions of each system about social order and leadership.
9. The Westminster model's first past the post (plurality) system for electing legislators from which the executive branch (Cabinet) of government is selected was resoundingly rejected by the New Zealand electorate in the 1993 referendum. Argue the case for or against changing to MMP and explain the criticisms of the current system.
10. Our view of the role law should play in protection of the earth, sea, air, water, fauna and flora is dependent on whether we see nature as fragile, capricious or robust. Environmentalist, ecological and indigenous analyses converge and diverge on how they see nature. Discuss and explain.
[*] LLB(Hons) LLM (London), Professor of Law, University of Waikato.
[1] The Committee on Legal Education, Cmnd 4595 (1971) (Ormrod Report); Law and Learning: Report to the Social Sciences and Humanities Research Council of Canada (1983) (Arthurs Report); and Australian Law Schools, a Discipline Assessment for the Commonwealth Tertiary Education Commission (1987) (Pearce Report).
[2] Barnett, “The province of jursprudence determined - again!” (1995) 15 Legal Studies 88.
[3] Barnett equated law and society with jurisprudence for the purpose of her survey.
[4] Barnett supra note 2, at 107.
[5] Supra note 1.
[6] See, eg, Havemann, “'The Pakeha Constitutional Revolution'? Five perspectives on Maori Rights and Pakeha Duties” (1993) Waikato Law Review 53.
[7] Supra note 2.
[8] Boston, J (ed) Contracting Out the State (1995).
[9] Amin, A (ed) Post-Fordism: A Reader (1994); Havemann, “Regulating the Crisis: from Fordism to PostFordism in Aotearoa/New Zealand 1984-1994: Some Contradictions in the Interregnum, Morbid and Otherwise” (1994) 18 (1) Humanity and Society 74; Obrien, M and Wilkes, C The Tragedy of the Market (1993).
[10] Cohen S Visions of Social Control (1984).
[11] Kennedy, “Legal education as training for hierarchy” in Kairys, D The Politics of Law: A Progressive Critique (1983).
[12] Freire, P Pedagogy of the Oppressed, (1992),
[13] “Conscientisation” is a Freirian term connoting political emancipation through knowledge, including self-knowledge and an analysis of features of the structural context which are inimical to substantive equality.
[14] Freire, P, supra note 12, at 46; McLaren, P and Leonard, P (eds) Paolo Freire (1993).
[15] Thompson, “The Rule of Law” in Beirne, P and Quinney, R (eds) Marxism and Law (1981).
[16] Foucault, M The Archaeology of Knowledge (1977) 49.
[17] Fine, B Democracy and the Rule of Law: Liberal Ideals and Marxist Critiques (1984) 144.
[18] Eagleton, T, Jamieson, F and Said, E Nationalism, Colonialism and Literature (1990)ß 32-33.
[19] Barnett, supra note 2, at 123.
[20] See U S texts such as Schur, E M Law and Society: A Sociological View (1968); Friedman, L Law and Society: An Introduction (1977); and Vago, S Law & Society (1988). See U K texts such as Podgoreki, A Law and Society (1974); Campbell, C and Wiles, P Law and Society: readings in the Sociology of Law (1979); and Roshier, B and Teff, H Law and Society in England (1980).
[21] See Barnett, supra note 2, at 123.
[22] Bottomley, S, Gunningham, N and Parker, S (eds) Law in Context (1991).
[23] Te Matahauariki (1988); Wilson, “Waikato Law School: A New Beginning” (1990) 14 NZULR 103.
[24] Te Matahauariki (1988) 2.
[25] Idem.
[26] Law School Handbook (1990) 5.
[27] Foster, G Design of University Courses and Subjects: A Strategic Approach: HRDSA Green Guide No 15 (1993) 3.
[28] Law School Handbook (1990) 5.
[29] Idem.
[30] Ashcroft, B et al (eds) The Empire Writes Back: Theory and Practice in Post-Colonial Literatures (1989); and Giroux, H “Paolo Freire and the Politics of Postcolonialism” in McLaren and Leonard, supra note 14.
[31] Armstrong “Handling the Hydra: Feminist Analyses of the State” in Duplessis, R et al (eds) Feminist Voices (1992) 224; and Hyman, P Women and Economics; A New Zealand Feminist Perspective (1995).
[32] See below Appendix A.
[33] Walker, R Ka Whawahai Tonu Matou / Struggle Without End (1990).
[34] Freire, supra note 12 at xi.
[35] Walker, supra note 55 at 192.
[36] Walker, supra note 54 at 194.
[37] See below Appendix A.
[38] See below Appendix B.
[39] McLaren and Tadeu da Silva, “Decentring Pedagogy: Critical Literacy, Resistance and the Politics of Memory” in McLaren, P and Leonard, P (eds) Paolo Freire (1993).
[40] Supra note 9.
[41] See Havemann, “Race, Ethnicity, Gender and Class in the law school curriculum: Designing a Law and Societies Course for New Zealand /Aotearoa” in Collins, J (ed) Confronting Racism (1995).
[42] Leonard, “Towards a Paradigm for Radical Practice” in Bailey, R and Brake, M (eds) Radical Social Work (1975).
[43] Havemann, “Canadian Realist Criminology in the 1990s; Some Reflections on the Quest for Social Justice” in Lowman, J and MacLean, B (eds) Realist Criminology: Crime Control and Policing in the 1990s (1992).
[44] Ball, “Introducing Monsieur Foucault” in Ball, S (ed) Foucault and Education: Disciplines and Knowledge (1990) 5.
[45] Walker, supra note 55 at 180.
[46] Hunt, “Rights and Social Movements: Counter Hegemonic Strategies” (1990) 17 Journal of Law and Society 309; and Scheingold, S The Politics of Rights (1973).
[47] Leonard, P Personality and Ideology (1984).
[48] Cerny, C The Changing Architecture of Politics: Structure, Agency and the Future of the State (1990).
[49] Dobson, A Green Political Thought (1990).
[50] Scheingold supra note 65, Hunt supra note 65, Thompson, “The Rule of Law” in Beirne, P and Quinney, R (eds) Marxism and Law (1981).
[51] Skocpol, “Bringing the State Back In: Strategies of Analysis in Current Research” in Evans, P et al (eds) Bringing the State Back In (1985); Franzway, S Court, S and Connell, R Staking a Claim: Feminism, Bureacracy and the State (1989); and Walby, S Theorising Patriarchy (1990).
[52] Kelsey, J “The Treaty of Waitangi and Pakeha Responsibility - Directions for the Future”, unpublished comments for Waitangi Forum 4 February 1987, 5; and Ritchie, J “Honouring the Treaty of Waitangi: Some Pedagogical Considerations” MEd (Counselling) unpublished Dissertation (1990).
[53] James, B and Saville Smith, K Gender, Culture and Power (1989).
[54] Vowles and Aimer, supra note 51.
[55] Ryan, W Blaming the Victim (1972).
[56] Cohen, S “Human Rights and Crimes of the State: The Culture of Denial” (1993) 26 (2) Australian and New Zealand Journal of Criminology 97.
[57] Carrington, “Of Law and the River” (1984) 35 J Legal Educ 222.
[58] For the USA see Finman, “Critical Legal Studies, Professionalism, and Academic Freedom: Exploring the Tributaries of Carrington's River” (1985) 35 J Legal Educ 180; Martin, “Of Law and the River, and of Nihilism and Academic Freedom” (1985) 35 J Legal Educ 1; Gordon and Nelson, “An Exchange on Critical Legal Studies between Robert W Gordon and William Nelson” (1988) 6 (1) Law and History Review 139; for shades of it in New Zealand see Havemann, “The ‘Pakeha Constitutional Revolution’”, supra note 6.
[59] Ritchie, supra note 71.
[60] McLaren and Tadeu da Silva, supra note 58 at 53.
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