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.Footnote 1 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.
A legal theorist, scholar of the globalization of law and legal education, and pioneer of the “law in context” movement in England, for more than 60 years Twining has challenged English scholars to situate learning about law within its broader context and to reform prevailing and long-standing approaches to legal education. He wove together a tapestry of leading thought and diverse perspectives drawn to develop largely novel theories and fields of inquiry that engaged with broader actors and pressing political and social concerns.Footnote 2 The experiences of writing Karl Llewellyn's intellectual biography while he was a postgraduate student at the University of Chicago, teaching at the University of Khartoum (Sudan), and then the University College of Dar es Salaam were particularly eye opening for Twining. They helped him appreciate that working within a long running elite institution such as his alma mater, Oxford, located in a country with a stable legal system and weighty legal tradition encouraged a sense of complacency and a narrowing of perspectives. Throughout his career, he repeatedly challenged the parochialism within these elite parts of England's legal academy that led to a narrowing of perspectives and ideas.Footnote 3
Twining's memoir, however, is less an accounting of an intellectual life, and more an extended argument for academic lawyers to seriously examine how their particular brand of teaching and scholarship (or research) advances the discipline. He believes that contemplating the health and future of the discipline and taking leading roles is not the exclusive domain of law school managers—heads of schools and deans—but rather something that all “academic lawyers” should share in and advance.Footnote 4 In other words, the discipline's full intellectual capital should be devoted to strengthening the very enterprise. His “hope is to persuade [academic lawyers] to see their own specialised work in the context of Law as a discipline as a whole and its challenges.”Footnote 5 He characterizes his memoir as a “restatement of a position” that is grounded within the contexts—intellectual, social and geographical—that led him to this view.Footnote 6
Twining's argument is a product of his diagnosis of the discipline of law in England. He perceives that the enduring and growing bulk of legal scholarship lacks empirical or contextual foundations, that “so much” of it is “normative and opinionated.”Footnote 7 And he argues that many legal theorists remain entranced by the particular brand of abstract analytical philosophy that concentrates almost exclusively on judicial decision making, which gained particular traction through the writing of H.L.A. Hart, holder of the Corpus Chair of Jurisprudence at Oxford, and which was buoyed by his successor, Ronald Dworkin.Footnote 8 When it comes to legal education, he believes that the complexity of understanding the various forces brought to bear on legal education is immense and that academic lawyers ought to do more to contribute to the way that citizens understand law “from cradle to grave,” drawing from Lawrence Friedman's model of “Western Societies as one vast school of law.”Footnote 9
Arthurs is perhaps best known for his significant contributions to labor law scholarship, for his pathbreaking Law and Learning Report and for his significant contribution to university and law school administration as dean of Osgoode Hall Law School and president of York University.Footnote 10 In some ways, Arthurs’ career was very different from Twining's. He was born, educated, studied, and taught law in Canada, where legal scholars frequently considered England, the United States, and France as dominant legal traditions.Footnote 11 He completed postgraduate studies in law at Harvard, arguably a more conservative United States law school (at that time) than Twining's University of Chicago, and, unlike Twining, early in his career passed up opportunities to teach law abroad.Footnote 12 Arthurs was drawn to legal practice and politics, not to deep theorizing.Footnote 13 He describes himself as “a consumer of second-hand legal and social theory rather than a primary producer.”Footnote 14 And yet, the positions he took on legal education throughout the career and the lines of inquiry he pursued in his research closely resemble Twining's efforts. As a young man, Arthurs’ commitment to the rights of workers meant that he entered the legal academy with questions that responded directly to social and economic issues. In the course of his studies, he grew stronger in his belief that the best way of addressing them was to look beyond purely legal materials and methods. Arthurs, unlike Twining, does not arrange his memoir around an argument that scholars should take greater responsibility for the discipline, but his descriptions of his administrative, teaching, and research experiences—together with testimony from his peers— demonstrate that he has been a pioneering force within Canada's discipline and took considerable responsibility for the discipline and legal education both in his law school in Ontario and in Canada more broadly.Footnote 15 His memoir therefore has the potential to achieve much the same aims as Twining's.
In this review, I argue that both memoirs should be viewed as central to current thinking about the discipline and perhaps even compulsory reading for all academic lawyers who want to strengthen the field through their teaching, scholarship, and research. Yet neither Twining nor Arthur fully explain how their preferred models of legal education respond to leading studies on the role of law and lawyers in society. I also suggest that although their critique and concerns remain relevant to current generations, both should have engaged more with the personal dimensions of their work, including issues of gender.
Agency, Optimism, and Histories of Legal Education
Writing from the context of Australia's discipline of law, I have advanced several arguments (in both short and long form) in favor of histories of legal education and of legal scholars.Footnote 16 Such arguments seemed needed in a discipline in which so little accounting has been undertaken, where much of what had been written draws from caricatures, and where false generalizations about past generations of legal scholars are often enlisted to celebrate supposedly enlightened and progressive contemporary scholars of legal education.Footnote 17 As Wes Pue explained, practicing and academic lawyers in the United States have self-servingly embraced myths about the discipline and its relationship with the profession, and this embrace has discouraged and stymied a proper accounting of legal education and scholarship.Footnote 18 Local versions of these myths have travelled far beyond the United States.Footnote 19 These myths and the absence of a strong historical basis for understanding the discipline are symptomatic of the strong anti-empirical disciplinary tendencies that both Twining's and Arthurs’ memoirs are attempting to curtail; where scholarly arguments about what law is or how it should be reformed are advanced based on facts or understandings that have not been established or tested through empirical investigations. With this in mind, this review first evaluates whether, and if so, how, Twining's and Arthurs’ memoirs contribute to the existing body of histories of legal scholarship by providing a stronger understanding of the discipline.Footnote 20
Do Academic Lawyers Matter?
One of the assumptions underpinning most histories of individual legal scholars is that agency matters: the endeavors of individuals materially alter the way that law schools operate, and this in turn effects what they offer to the world of ideas and/or society. By situating their central academic contributions and ideas within the context of a memoir, Twining and Arthurs appear to subscribe to this way of thinking and it is something that Arthurs deals with directly. Arthurs concludes his memoir by suggesting that there are essentially two ideal types of legal scholars. “The optimists amongst us assume that human hands—our hands—shape legal education, that legal education shapes the law, and that law shapes the world,” writes Arthurs. “The pessimists,” on the other hand, “contend that the process works in reverse, that the forces of political economy” structure “law as a system of social ordering,” as “an intellectual enterprise,” and as a “subject or object of study in law schools.”Footnote 21
Historians of law professors tend to privilege agency and therefore provoke a greater degree of optimism for the future than institutional histories.Footnote 22 Arthurs appears to be a pessimist, however, because of his scepticism about both the transformative potential of law and his own lasting scholarly and institutional impact.Footnote 23 Although Arthurs never became a radical, his own research and leading work by critical legal scholars convinced him that law was incapable of “transforming societies” and that “progressive causes will only be advanced by social and political mobilization.”Footnote 24 He speaks of his most beloved subject, labor law, as “having no future,” considering that neither state nor non-state systems could protect “subordinate groups against abuses of private power” and that liberal legal education did not achieve the transformation that he wished for.Footnote 25 He believes that he did not inspire bright students to move into critical leadership positions in law and that many of the initiatives he instilled as an administrator were eventually undone.Footnote 26 He acknowledges that his scholarly beliefs sit uncomfortably with his concluding reflection that throughout his career his objective was to “make things better,” investing his “energy, intelligence, and reputation in a lifelong project of reform, notwithstanding [his] growing comprehension of the challenges confronting any such project.”Footnote 27 And yet, his very act of writing this memoir—insofar as it is an attempt to encourage current and future generations of legal scholars to revisit his central ideas, examining their merits, reception, and legacy—could be construed as signalling a degree of faith in his own agency. In other words, it signals an ongoing tension between his actions and his convictions.
It might appear that Twining fits neatly within Arthurs’ optimist type. Almost every page of his memoir speaks of the importance he places on legal education and the discipline of law. He urges scholars to take greater responsibility for the discipline because he considers it is hugely important. And he has spent much of his career defending its importance to an audience of lawyers who looked upon the academy largely as a group of failed practitioners.Footnote 28 This encouragement is clearly a product of Twining's belief in the agency of individual academic lawyers: he believes that they are the most valuable resource of any law school and that it is only through them that the discipline will ever realize its potential as a “marvellous and important subject.”Footnote 29 Twining hopes that by drawing a larger audience to his work he will encourage new legal scholars to reorient their intellectual agendas toward ends that might better serve the discipline and help it realize its potential.
Twining's optimism, however, does not depend on whether it is possible to show that academic lawyers “shape legal education, that legal education shapes the law, and that law shapes the world.”Footnote 30 His optimism therefore does not place him neatly within Arthurs’ ideal type. Twining was at the University of Chicago during the Warren era and he explains that the environment had a profound effect on his thinking about law.Footnote 31 Twining did not, however, develop an American faith in the reforming potential of superior courts. Such faith would be misplaced within the English context, in which judges did not openly engage in dynamic judging practices. Twining instead embraced the complexity of law, concentrating on issues of “colonialism and decolonisation, nationalism, ethnocentrism, world poverty, terrorism and the survival of humankind.”Footnote 32 He wrote not to solve any of the problems arising in these areas but to contribute to our factual and theoretical understandings of law's role in each of them.
Twining's optimism is grounded in the discipline's potential to advance scholarly agendas that are firmly anchored in the idea that law is a liberal art, and he believes that when approached as such, the discipline will provide richer and more relevant understandings of the place and value of law. Twining's agenda for the discipline does not depend on the self-aggrandisement of law professors or an exaggeration of law's potential to bring about social change. Rather, it relies on the idea that law is an ever-present force in people's lives and that understanding that force and what people do with, or how they are affected by, law, and thinking seriously about the most pressing and problematic issues it presents, is both practically and intellectually useful.
Hopes for the Discipline
This brings me to a second normative assumption underlying most histories of legal education written by academic lawyers: scholars usually craft their narratives based on their hopes for the discipline—what they believe it can or should become.
Twining hopes that the discipline will embrace its identity as a liberal art and that law professors will assume a broader responsibility to educate the general public about law. Both Arthurs and Twining hope that law professors will teach and study law in a way that presents more reliable understandings of legal phenomena, situating law and legal institutions within broader social and political contexts. Their memoirs explain how and why they reached these positions, and their experiences and the personal narratives add weight to those positions.
For those who share, either wholly or partly, Twining's assumptions about the role of the discipline of law and the importance of individual scholars, these memoirs are important and central. They provide models of what it means to take the discipline and its subject seriously and to lead and teach with the insights gleaned through such seriousness. However, for those optimists who fit neatly within Arthurs’ ideal type, who believe in the transformative potential of law, Twining's memoir does little to provide an antidote to Arthurs’ pessimism: that because law does little to shift power relations in society the discipline will always be a marginal and insignificant social and political player. Twining suggests that law is an important force in peoples’ lives, but he does not explain the empirical or other foundation for his faith in the potential of legal education to improve the way people experience law. If Arthurs’ pessimism is well founded, does this not make Twining's prescriptions for legal education seem trivial in the grander scheme of things?
“Law and context” or “law and society” scholarship has argued that the market, class, race, professional socialization, and new technology, are far more important than law schools and ethical codes in the operation of the legal profession.Footnote 33 The body of work showing either the futility of law in effecting major changes in social and political orderings, or how law reform often brings about unexpected and unintended changes, has also grown. To give one example, Lorraine Talbot recently made a compelling argument, based on historical and contextual studies, that the reform of corporate law cannot address, even partially, the inequalities brought about by the concentration of wealth in corporations, and she suggests that law is an ineffective instrument for social mobility.Footnote 34
Arthurs notes that legal scholars tend to ignore these inconvenient truths. Yet it is peculiar that neither Arthurs nor Twining more substantially connect these studies with their arguments about legal education.Footnote 35 And neither fully explain why they both reject root and branch reform and maintain faith in Western democracies. These omissions obscure and weaken the normative foundations of their memoirs and, in particular, the force of Twining's prescriptions. Put simply, their hopes for the discipline seem to rest more on faith than on fact or reason. It also means that neither memoir confronts the most damning criticisms made of various educational models of their time, often found in the work of critical and feminist legal scholars.Footnote 36 These scholars argued that law's liberal foundations worked against, rather than for, an equal and just society. Although these critiques may not have been central to Twining and Arthurs’ thinking and careers, they merit a central place in any social and intellectual history of twentieth century legal education, especially one written in the present age where similar trains of critical questioning are again gaining traction.
A further problem with both memoirs, and perhaps memoirs in general, is that they do little to investigate what Twining and Arthurs have meant to others. Both Twining and Arthurs are known the world over, yet both are reticent when it comes to assessing their impact on “law and context” studies in law in the twentieth century.Footnote 37 Instead, both see themselves as marginal influences on the discipline whose main prescriptions have largely gone ignored. Both are clearly humble, but the absence of these details weakens the insights that these books can shed on the history of the discipline. Both books are perhaps better viewed as arguments—very important, fully examined and nicely illustrated arguments—that may buoy the field in difficult times and reignite convictions about the importance of contextual and empirical approaches to law. To put it another way, in the meshing of lawyerly and historical perspectives in these works, the identity of lawyer or jurist prevails.
Personal Toll
For those who, like me, share Twining's and Arthurs’ frustrations over the discipline of law, these memoirs engagingly present the ideas and arguments of powerful allies. They make bold assessments that others may be hesitant to make (at least publicly). Their experiences suggest that the reasons for the marginalization of their approaches to law cannot be explained through a lack of effort or intelligence. Their brilliance and devotion to the discipline is unmistakable. Their memoirs suggest that their marginalization was the result of their early revolts against the status quo, the bringing in of ideas from very different contexts, the rise of powerful analytical philosophers, and the tendencies of academic lawyers to deal in specific instances and eschew empirical and historical evidence.
For those of us who are not white men embarking on legal careers during a time of considerable growth and opportunity, there are of course limitations to what we can draw from these accounts. Some aspects of the memoirs may even prove alienating. Diverse perspectives—other accounts and stories of ideas, disappointments, personal struggles, and victories—are undoubtedly necessary. This brings me to a further shortcoming of Twining's and Arthurs’ memoirs. Neither speak much about the personal toll of various scholarly debates and arguments and, for Twining, his movement to various institutions. Arthurs’ acknowledges how throughout his career he changed tack many times, revising the central premises underlying his work and career, but he says little about feelings of angst or insecurity. Twining, as part of his efforts to release English legal theory from the hold of Oxford analytical philosophy, sought to engage with the analytical legal theorist who most helped it prosper throughout the second half of the twentieth century: Dworkin. Twining explains how his attempts to engage with Dworkin were rebuffed (“intellectually he ignored me”) and suggests simply that he did not mind very much.Footnote 38 Twining mentions challenges throughout his time at Warwick Law School, particularly during his time as chairman when there was political turmoil in part caused by radical spirits both within and outside the law school and university, but he does not reveal how any of them ignited anger, frustration, sadness, disappointment, or a sense of determination.Footnote 39 He simply points to the toll it took on his ability to do research. Twining and Arthurs persisted despite considerable resistance but neither book provides an insight into their personal disposition or struggles. Their progression seems effortless, and in this sense we are left in some doubt over whether they really had clay feet.Footnote 40
Does this matter? Nicola Lacey, who writes the foreword to Twining's memoir, has been at the center of debates within the discipline about whether the personal lives, struggles, and feelings of self-doubt of the subject should be included in a life history of a legal scholar.Footnote 41 In her own work on Hart, Lacey could include such details, as she was given access to a large number of Hart's personal diaries and papers that divulged some of his innermost thoughts about his work, friendships, and family. Although the broader context surrounding, and motivations underpinning, a piece of scholarly work may, arguably, provide further insight into the meanings of a particular text and provide new interpretations, it is harder to make the argument that details of an academic lawyer's sexuality; relationships with family, colleagues, and students; and mental health, for example, will achieve the same end. Lacey's work does, however, suggest that an academic lawyer's personal disposition and life circumstances can help explain how they make choices about the type of questions to ask and the body of knowledge and methods used to answer them. As I have explained elsewhere, “Lacey's narrative suggests that Hart's decision to pursue analytical jurisprudence arose from an insecurity about his own abilities as a philosopher, the aura surrounding linguistic philosophy at Oxford and a perceptiveness that colonising law with philosophy would be to both his career's and the discipline's mutual advantage.”Footnote 42
Including these types of personal details matters, I believe, for three reasons. First, leaving out the personal angst and range of emotions limits our appreciation of the personal toll that accompanies going against the status quo and how attitudes and emotions play a significant part in an academic lawyer's choice of subject and field of inquiry. It also limits our ability to develop a personal if one-sided connection with each figure. Second, any subsequent life and intellectual biographer writing about Twining and Arthurs may now feel that in doing so they are breaching trust. Their memoirs suggest that both men considered that these are areas of their lives and careers that are not worthy of further scrutiny and should be left alone. Third, largely leaving out aspects of their personal dispositions and personal circumstances discourages a fuller explanation of the role that gender plays in an academic career. Neither Twining nor Arthurs say much about the role that gender played in shaping the form and content of legal knowledge or about how it was a central explanatory factor for their success within it. Their memoirs convey clearly their efforts to open up and diversify the discipline to bring in and mix together a range of ideas and experiences. However, neither bring to the surface aspects of the masculine environment—the networks, the attitudes, the jokes, the role of wives, and the topics of conversation—that worked in their favor, and against women. These contextual factors are crucial to any understanding of the history of the discipline and law schools.
Conclusion
We are currently living at a time when there is much talk of disruption within both the discipline and the profession. Academic careers are highly competitive and sought after. At the same time, in many quarters, law does not enjoy the status and prestige it once took for granted, with graduates finding it increasingly difficult to secure employment and leaders of government and industry openly discouraging young people from studying law. There are also growing and considerable concerns that managerial trends and the “knowledge economy” have led universities away from what ought to be their primary occupations, illustrated by a rise in allegations of institutional corruption.Footnote 43 Learning about how others have stayed true to their core beliefs seems more important than ever. One hopes that the discipline will be transformed by the efforts of law professors who hold a strong sense of intellectual excitement, who are committed to their vocation, and who try to act with integrity, testing their assumptions and beliefs and considering a broad range of people who may be affected by their efforts. Although Twining and Arthurs are strong exemplars of this approach, it falls to the current generation to revisit the basis of their own optimism or pessimism for the discipline and think seriously about how contextual approaches to teaching and studying law—including historical studies—both engage with inconvenient truths and respond to present realities.
