Aux Barricades!

Taking up arms against changes to the Law School

The French have given civilization many gifts but one that I particularly value is their national anthem – La Marseillaise. It is a ferocious anthem written in 1792 by Claude Rouget de Lisle following the declaration of war by France against Austria.

The song acquired its nickname after being sung in Paris by Fédéré (volunteers) from Marseille marching to the capital. The song is the first example of the "European march" style. The anthem's evocative melody and lyrics have led to its widespread use as a song of revolution and its incorporation into many pieces of classical and popular music.

The words are stirring – perhaps most evocative in French

Allons enfants de la Patrie,

Le jour de gloire est arrivé !

Contre nous de la tyrannie

L'étendard sanglant est levé,

Entendez-vous dans les campagnes

Mugir ces féroces soldats ?

Ils viennent jusque dans vos bras

Égorger vos fils, vos compagnes

But it is the refrain that really grabs.

Aux armes, citoyens,

Formez vos bataillons,

Marchons, marchons !

Qu'un sang impur

Abreuve nos sillons

To arms citizens!

Form up your battalions!

March on, march on

And let impure blood

Drench our furrows.

Now some readers may say that this reflects the bloody time of the Terror and it was of that time. Rather like Wordsworth and Thomas Jefferson I prefer the time of the French Revolution of 1789 and the Declaration des Droits de l’Homme et du Citoyen (The Declaration of the Rights of Man and the Citizen).

So what does all this have to do with anything. As Lady Whistledown of the grossly overacted TV show “Bridgerton” would say, “Patience, dear reader”.

And I say that because I am going to change tack. But bear with me. I shall return to La Marseillaise.

Auckland University Law School was founded in 1883 as part of the then Auckland University College of the University of New Zealand. It is recognized today as the top law school in the country and fosters an excellent legal education.

When I started at Law School in 1965 one of the first things that we were told was that legal education was going to teach us to think like lawyers.

That wasn’t a threat of brainwashing. The law is complex and often challenging to understand.

What we learned was a comprehensive understanding of legal principles, systems and processes as well as learning how to navigate complex legal frameworks and how to apply the law effectively.

Almost by osmosis we gradually developed the analytical skills to evaluate cases, statutes and legal arguments as well as developing logical reasoning and creative problem-solving approaches.

And that was just the beginning. We learned about issues of justice and accountability through the Rule of Law and also had emphasized throughout the high ethical obligations of lawyers to society, clients and to the legal system. We received practical training through moot courts, internships, and case studies and also were prepared for legal advocacy, negotiation, and client counseling.

Indirectly we were also prepared for more esoteric activities such as influencing policy, advocating for change and upholding justice. There was an expectation of active participation in societal development and reform.

A specialized and focused legal education opens doors to diverse careers: lawyer, judge, corporate counsel, policy advisor, or academician. The skills gained can be applied in business, politics, journalism, and public service.

A legal education enhances communication skills, emphasizes the importance of precision in the use of language – both written and oral – and thereby improves clarity and precision in conveying ideas.

One of the critical features of legal education is that it encourages and demands independence of thought and expression and that independence is crucial for the Faculty of Law and those who teach.

Faculties of Law play an important constitutional role in upholding and protecting the rule of law - the idea that law constrains power and holds power to account. To do this, the Law School needs to be independent and be seen to be independent from all other interests. Its existing independence as a faculty enables it and its students to openly scrutinise illegalities and abuses of power by both public and private actors, and to highlight injustice wherever it occurs in the community.

Thus legal education is not just a gateway to a career in law but also a tool for personal development, societal contribution, and professional growth. It equips individuals with the skills, knowledge, and mindset to succeed in diverse fields while fostering a deeper understanding of justice and governance.

All of this is at risk at the University of Auckland.

The Vice-Chancellor of the University of Auckland released a proposal document dated 12 November 2024 entitled “Consideration of the future organization of the Faculties of Law and Business and Economics.”

The proposal suggests merging the Faculty of Law with the Faculty of Business & Economics to form a new, comprehensive faculty that leverages the strengths of both disciplines.

It is proposed that the combined faculty would aim to foster greater interdisciplinary collaboration, provide economies of scale, and enhance resources and support for research, benefiting both academic staff and students.

The “brand names” - that must give a clue where this is coming from - "University of Auckland Business School" and "Auckland Law School" will be retained alongside the name of the combined faculty to maintain their established identities.

A new departmental structure is proposed. Two new law departments would be created within the Auckland Law School, focusing on private law (including commercial, corporate, intellectual property, and technology law) and public law (including criminal, environmental, indigenous, and international law).

This is a bizarre proposal and I oppose it for a number of reasons.

Significantly the proposal document does not identify any need or necessity for such a merger. It is a brief document of some 10 pages including a lavishly illustrated title page.

It is characterized by the use of “management speak” or “business speak” and a number of vague and ill-explained concepts. It talks about “greater collaboration across a wide range of legal and business disciplines.” Without explaining how this will take place and failing to recognize that collaboration takes place already.

In another context when I did my oral examination for my PhD (it is called a “viva” by some – short for viva voce because it is a conversation) my examiners were drawn from the Law Faculty at Auckland, the History Department of the Arts Faculty at Auckland, a legal historian from the University of Canterbury aw School and an examiner who was based in London at the University of London as I recall.

This sort of collaborative activity takes place all the time, especially between the Business School and the Law School. To suggest that the collaboration will be greater begs the question how much greater than it is already.

Here is another example of management speak that does not provide answers.

” Currently, the Faculty of Law’s smaller scale limits its ability to fully leverage its strengths. The proposed alignment with Business & Economics allows both faculties to address this and to create a new faculty that positions the University as the national leader in business and law.”

What does this mean. Where is the data. How come the Law School doesn’t “leverage its strengths”? What “strengths”. How will the merger address this undefined and unexplained advantage rather than describe the creation of a new Faculty? And how will this position the University as a national leader in business and law? This is not explained. And it is a curious statement given that the Law School is ranked as the best in the country and 55^th best in the world in the QS rankings.

I could go through the proposal line by line and demonstrate fallacies and vagueness of expression, of open-ended examples of validation by mere assertion but I won’t. On a first reading the proposal is attractive. It is when it is considered carefully and analytically the whole issue becomes problematical.

I shall turn to two examples of problems.

The first is the suggestion that there be two new law departments would be created within the Auckland Law School, focusing on private law (including commercial, corporate, intellectual property, and technology law) and public law (including criminal, environmental, indigenous, and international law).

This is a foolish proposition for a number of reasons. The first is that when I did my undergrad degree we had to study 16 law papers. They were all compulsory. Not like today where only the core papers are compulsory and a student may construct the balance of his or her degree with elective subjects. That means that both in my day and at present a student will receive an education in both private and public law matters.

And there are cross-overs between the arbitrary divisions of private and public law. William Akel who is a barrister, media law expert and a member of Sangro Chambers observes that private and public law disciplines interact. He says:

“A good corporate lawyer should know something about treaty principles, about environmental law, resource management and you can’t easily divide these things up. The fundamental philosophies of law and business are different…. Law school is different because it teaches students to think critically and to fulfil their duties and obligations as lawyers, not only to their clients and the courts but to society generally.”

Former High Court Judge John Priestley KC considers the proposal to be misconceived. He notes that there’s much more to the discipline of law than as an adjunct to business interests and the business community. Mr. Priestley observes:

“The teaching of law has a constitutional dimension. It’s got a dispute resolution dimension, it’s got a huge historical dimension. And finally, I think it’s got a social dimension where the corpus of law, the body of law teaching, has to reflect to some extent the society in which it is operating.

And putting that argument around the other way, the business school may be very good at teaching taxation and aspects of mergers and acquisitions, but discussion of law or the teaching of law rather involves much more than that….In the common law world, or certainly in the English-speaking world, there’s not one law faculty of any reputable university that I can think of which doesn’t have independence.”

The arbitrary classification of public and private law ignores, as Mr Akel observed, that criminal law, for example, has public law implications in terms of procedure, evidence, admissibility and practice but it also has much wider private law implications. Same with contracts, same with tort. The law doesn’t fit neatly into that sort of classification or categorisation.

Law teaching involves more fundamental disciplines right from the start. It is an independent discipline. As former High Court and Court of Appeal Judge Raynor Asher KC said

“It’s not about business law. It’s not about evidence. It is about ethics, which underlines everything. And ultimately, all these laws combined create the rule of law. Law students have this drummed into them from their very first year.

“They learn some legal history. They learn about problem solving within the boundaries of the law and how the law works to resolve problems. And the degree is far more than just a meal ticket. It confronts and tries to teach students about what the law is about, why we have laws, how they developed and their function in our society,

To treat it as in some way having a synergy with a business college is to misunderstand the nature of legal teaching, which is all about teaching the fundamentals of the law and a broad range of disciplines that will produce a lawyer.

“That’s still the undiluted approach. It is to produce people who can be good lawyers. And of course, it does give them all sorts of disciplines and knowledge that will help them in other careers.”

The second problem is that of the independence of the Law Faculty. Under this proposal it will become a Department under the umbrella faculty of Business and Economics. The Dean will lose his or her seat at the Council table. Any advocacy for the Law School will be done by the Dean of Business. The independence and identity enjoyed by the Law School will come to an end with the merger.

A loss of independence through combining the Faculties will also alter the academic frame within which our staff and students operate. Every faculty has its own values, culture, priorities and interests, and changing where the Faculty of Law sits in the University will have a significant impact on these core parts of the Faculty's identity as well as the Faculty's teaching and research pursuits.

This point was made by the High Court when it upheld a challenge to the proposed merger between the Faculty of Law and Faculty of Business at the University of Waikato in 2002. Justice Hammond (a former Dean of the Auckland Law School)explained:

“the question of where something is taught is no "mere" or "incidental" matter. It is a matter of the greatest academic significance. The structure of courses, how they are taught, what the purpose of the courses is perceived to be, how well they will be supported, and so on, turns on a fundamental appreciation of the general philosophy and direction of an academic entity.”

Combining Law into the Faculty of Business and Economics generates a significant risk that the commercial and business interests in that Faculty will have an outsized role in influencing the direction of legal programmes and degrees, hiring practices, student initiatives and research priorities of the Law Faculty.

This, of course will have a detrimental flow on effect to the standing and ranking of the Law School, its ability to attract high quality academic staff and scholars.

The Law Faculty's academics are among the University's most publicly engaged intellectuals who frequently work with judges, lawyers, mana whenua, hapii, iwi,

Maori organisations, community law centres, businesses, non-government and international organisations, and Indigenous Peoples and governments around the world. Some of the Law School’s partners may see an alignment with Business and Economics as at odds with their own interests.

As you may have gathered, dear Reader, I am not a supporter of this proposal at all. I went to a meeting on Wednesday 18 December where the audience comprise lawyers and academics from the Law School. At the end of the discussion the vote was unanimous to oppose. The motion read

“This meeting is firmly opposed to the proposal to merge the Law School and the Business faculty. We are of the clear opinion that it would substantially diminish the standing and authority of the Law School, and negatively impact its global standing as well as its ability to attract and hold first class academic staff.”

The problem is that the timing is appalling. Submissions on the proposal close on 20 January 2025. The timetable for what is next is in place and set out in the document. This all smells of a predetermined plan put together by the Vice Chancellor and the Dean of Business who are responsible for the proposal. And of course – what a coincidence. The consultation period is reduced by 3 weeks with the intervention of the holiday period.

If that were not enough the are a couple of other things. The first is that during the time that I was teaching part-time at the Law School there was a similar proposal mooted. It was discussed but went no further. The opposition was great.

The second point is that this sort of merger has been tried before. Tried and failed dismally. After the earthquake the Business School and the Law School merged. Just like the current proposal for Auckland. The merger was a disaster. After two years the merger was completely unwound.

So here we go again. I will be making submissions on the proposal. Everyone who is opposed should do likewise. A proper legal education from New Zealand’s leading law school is at stake.

And this leads me to La Marseillaise. Here I am, with Christmas around the corner, having to cry aux armes, citoyens. Not muskets but with my weapon of choice – the pen. Although this article comes to you digitally via the Internet it started life on a piece of paper and the preparation of an outline using a Pelikan fountain pen. Every article I write starts its life the same way. It was the same with written judgements and articles in another “life”.

But wait – as they say – there’s more. InternetNZ – the organization whose primary function is to manage the domain name space for the .nz category – is having a constitutional review. The problem is that the proposed constitution dramatically changes the operations and structure of an organization of which I have been a member for over 20 years.

Many of the members are going to be effectively disenfranchised. The number of positions on the Council that will be elected will be reduced. The structure is designed to perpetuate the current power structure so that any change in the makeup of the guiding hands of the organization will be small. No chance of any dramatic change.

And that is going to require a submission as well.

I had hoped that my last article “The Campaign Continues” would be my sign-off for 2024. It is not going to happen. Too much going on. Too many issues to be addressed.

I turn 78 at the end of December. I am a bit old to be thinking this way but as I see wrongs being committed and injustices rife, as I see abuses of power and outrageous errors on the part of the powerful, like a distant trumpet La Marseillaise echoes through the recesses of my mind, and the call goes up as it did in 1832 when the Society of Friends built an obstruction on Rue de la Chanverie as described by Victor Hugo in Les Miserables – aux barricades – and so I take up my weapon of choice.