Legal Theory and The Idea of Justice | Professor Bronwen Morgan

Hello and welcome back to the Australian Law Student Podcast. I'm your host Oliver Hammond, and in today's episode we're joined by Professor Bronwyn Morgan from UNSW, Sydney. Originally from Zimbabwe, Professor Morgan has a Bachelor of Laws and Arts from the University of Sydney and a PhD in Jurisprudence and Social Policy from the University of California, Berkeley. She's also taught at the University of Oxford for six years and brings a wealth of knowledge to this episode. In the episode, she shares her perspective on the intersection of law, society and justice, and whether you're interested in the socio legal dimensions of the law, or perhaps how legal frameworks adapt to societal changes, this is sure to be an episode you won't want to miss. So without further ado, sit back, relax and enjoy the podcast. Hello, Bronwyn Morgan. Thank you for joining me on today's podcast. Pleasure. Great to be here. So you've been an academic at UNSW Law school now for over 10 years and have an extensive teaching background, especially when it comes to legal theory, socio, legal studies and jurisprudence. My first question to you is, is how would you explain the study of legal theory and what's LED you to become so interested in it in it? So I like to think of the study of legal theory in terms of the work it does in the world, actually, although it's commonly said, you know, legal theory leads you to define the concept of law, that's that's exactly, in a way, what I'd like to move away from. Although it's important to have definitions, it's the sense of understanding at a fundamental level in relation to concepts like power and agency, freedom, fairness, coercion, the work that law actually does in the in the practical world in in the context of other institutions. And so for me, it's always, it is always a socio legal endeavor. That's that's my interest in it is it. And if you step back and think that law is is a human construct and yet it seems to operate as this external power, that's the source of fascination. It's it's not out there. It's it's within us, but we give it this solid form and then it appears to be out there doing things to other people. But studying rigorously, what happens when you apply law in a particular situation? And then, and especially when it doesn't work, I think that's what also led me to be interested in theory is we're taught in law school, this is the law. And there's an assumption that once it's on the books it will happen. And then when it doesn't happen, there's disappointment, but there's actually really systematic ways in which always falls short of what it promised to do. So how do we justify that? Yeah. And I suppose talking about the I mean that idea that the law is simultaneously created by us yet sort of we give it this this power that it's that it's not is that is that is that kind of a a thought that's perhaps developed over time this idea I mean obviously there is so it's well known that the law perhaps has religious connotations or connotations from sort of a higher power. What is this idea of human the human sort of construction which is beyond humanity itself. Who do you think is is the is the influencer in in relation to this and and how does how should society go about looking at the law if if if it is a human construct should we still see it with this kind of yeah sort of validity in that it's it it it is higher than than. Yeah, that's a great question because there I think maybe there's a human. In fact, my daughter right now is writing for Religion and Society about whether there's a biologically wired impulse in humans to to turn to something outside it and that it calls religion, whether it's religion or not. And and perhaps people sometimes place too much faith in law because of the decline of religion in some societies as a source of authority. And certainly the desire for law to have a right answer, which is very strong, especially from non lawyers. I think it's probably related to to the impulse that people had to defer to religious values. But it's also good to I think remember longer history when there were, you know more pluralistic religions with multiple gods and and and gods that were fallible and and and did the wrong things sometimes. But then the idea that there's an authority outside of humanity that can resolve that, yeah, I think there's been a a a bit of a back and forth between trying to externalise that sense of authority and and having more optimistic faith that through human dialogue between different groups we can do it ourselves. Yeah. And so in a way it's kind of this idea that the law is a a tool that we can kind of shape and shift in the way that we see fit. And so with with society, should we try and create it in a way that creates certain results in in society? Yes, well, that's so that's the the whole idea of law as an instrument and a tool is is almost common sense now. But yeah, it wasn't, as you say, if you took law as a precept, handed down as a natural law of God, then it's very different from being a a tool. It's more like a moral code. I mean, I I think one of the really interesting some things about legal theory in the current context is how can law become a tool for certain social purposes without becoming authoritarian? So how, how do we construct a, a legal order that's open to plural versions of what's a good social purpose? Because there's never one opinion on what's a good social purpose. And we've got the democratic representative system in the in sort of that laws embedded inside to help promote pluralism and A and a sort of a liberal view of what counts as a good social purpose. So if we can get law and those democratic institutions to be in a positive dialogue with each other, then I think law as an instrument works, but otherwise it veers towards authoritarianity. Yeah, yeah. And so it can be kind of used for, yeah, the the purposes of few rather than the purposes of of perhaps the the, the, the wider democracy. However, even in a more democratic system, there are people on the fringes that get left out and that's that's obviously, you know, I I think a very famous quote about democracy. I don't know about George Washington or something. I've heard it. But it is it. It's yeah, two walls and a lamb sitting down at a dinner table and deciding what to have for dinner. And so it's kind of, it is kind of perhaps it's it's better more of a a view on democracy rather than a view on the law itself. But how do you think the law can be more inclusive to ensure that the people at the at the fringes, the people perhaps in low socio economic standing or people who have disabilities and that sort of thing, the the people who are often perhaps less of a voice, how how do how do we incorporate that in a more legal instrumentalist perspective? Oh, huge question. I mean, because it catches the the sort of debate between more radically critical views of of law and ones that that have that more liberal view that I outlined earlier. So I suppose if you're going in tune with the more liberal view and you've got to fine tune that system for it to become more inclusive, then one method is to to really push along the lines of law's fairness, if you like, and that we must push law to become both fairer in both process and substance for all these groups. And so I mean being very reductionist, if you, if you kind of pass different pieces of legal frameworks that protect these different groups from discrimination, you get a range of of rights against discrimination and you see that happening with sort of an additional indices of disadvantage added and then a legal framework around each of those to address that. But I I do think that there's a really important place for having a different kind of conversation which would be what would it mean, for example, if this is not the only way but to have a more systemic shift in how we design our underlying institutions. Say for example, the degree of market economy and prioritization of economic growth is not it's it's a quasi legal issue. It's it's cast more as economics. But if you redesign the system so that there was more instead of redistributing to disadvantaged groups after the fact that you had more shared ownership of property at the, you know, in the early stages some institutional imagination around enterprise design and using things like common zone cooperatives to to redesign the economic system, then you're going to have more inclusion. If you do that well of disadvantaged groups through system change rather than through targeted legal instruments ended each group and you get a lot of hostility. You can feel a lot of political hostility from certain sections of society saying on, you know, we can't cope with yet another angle of justice claim, I suppose. It is, but perhaps. There's we need to step back and rethink the bigger. Picture. Well yeah. I suppose that that's the question. Are we too far entrenched in our ways to perhaps revert to that? I mean I think I think there's definitely a branch of of academics and and and people who are looking to try and create change who yes would like to sort of yes, we're open to this idea of perhaps more radical change of sort of repealing and then perhaps. Yeah. Trying to create the actual foundations of the law in a different perspective. However they kind of accept that where we are at now is too far in and that perhaps what a better like yeah, so so trying to take, OK this is the past and this is what we have to work with. I mean, is is that perhaps too conservative of a view? No it's and I think the structure of legal legal work the way I mean law is built on precedent and even if we study it as a social instrument there's there's a logic to the way that law works that you can't completely let go and start on a fresh page and if you do it's literally becomes revolution rather than law and this is but but yes I I I think it's just like do you know those projects where you rewrite judgments from alternative perspectives. So something like that, which is working with the existing legal material, but the feminist judgments or the wild law book of judgments, you know, from the non human perspective, it just says, OK, here's the material. But I'm going to start with a really different subjective consciousness, which isn't just mine individually, but I've I've had these discussions with a whole lot of other women or ecologists or whoever it is and I'm seeing the world differently. What does it look like if I do this particular case a different way? That's quite a a nice balance and that at least opens up thinking about well what could we change in an incremental way as you say. And so I suppose what's again at the at the core of the law and and the way that it it is able to be sort of perhaps respected and regarded in such a sort of fundamental thing that holds society together is I don't know if this is perhaps again maybe a bit cynical but this idea of force or this idea that the state has the right to use force in in in yeah sort of enforcing the transaction they're able to use force and have a means of violence and that sort of thing is is that is is in what way does that play into your understandings of of socio legal theory and and and do you think that there are other things that obviously underpin it because I think a lot of people still follow the law even if they there isn't you know the even in even the possibility of of doing that you know doing something in your own private house that might be a little bit illegal something I don't know downloading a illegal movie or something like that people might do even though that they're the sort of threat of. So they they might not do that, even though that the threat of violence isn't there, is there? Is there still something in the human sort of psyche that is perhaps, yeah, it is this want or desire for something higher than ourselves. Well, or or well, I definitely think there's something more, but I wouldn't necessarily say it's higher, it's more, it's it's more horizontally shared. So a sense of shared norms and shared morality, which isn't it's tacit often but if law gets too far out of step with that, then there is that phrase as you said the what's it, the state has the legitimate monopoly of violence. I remember finding that quite shocking when I was studying law, because it didn't occur to me in the way that law was taught. We were never reminded that literally, if you don't pay the debt, you know you can have the bailiff at your door and a violent removal of your possessions. It's always got that. But as you say, most many people will follow the law for other reasons. Perhaps that shared sense of communal morality feels a bit like the same way a religious precept is. Sort of a cultural but. It's more cultural, yeah, and variable across and across different groups. Yeah. And so I was just about to say that because it is variable across different groups, I mean the what we're talking about this now is obviously a lot of disagreement among the international community, for example, with events going on in the Middle East. And is, is, is this idea that just because I mean the other thing is with with international law, it's this idea that bigger states are able to kind of the enforcers of it. There's this sort of I think it's an Austinian viewpoint where it's this idea that international law is only so effective as to the point which again it's enforceable by bigger states or perhaps the collective of countries and look at things like the the Nuremberg trials and that sort of thing that that's where that sort of comes to effect. Whereas in a domestic sense, if you have different groups that are all coming together, does that perhaps pose an issue I think for society or this sort of cultural Does there need to be a point where cultural differences can be celebrated and but there needs to be some level of underlying underlying beliefs and values that can keep the yeah, and does the law play that function? Oh gosh, it goes. That goes very, yeah. The particular way you ask the question goes goes into the international law realm quite a bit, which I realized listening to you, I don't. I never think on that scale, by instinct, if that makes sense because but the history of international law has been a very limited use. I mean, there is the use of force and that becomes, as you say, very contentious. But the existence of multiple groups and the toleration and celebration of that within a national state that is operating on a Liberal Democratic basis, there's a kind of a commitment to supporting that sort of plurality and freedom. But then across nations, other nations might choose to do something differently and then that's a more of a non interference principle unless there's significant harm going on. So it goes, yeah, whether there's a a non positivistic way to explain that, I I think I'm sure there is. The international relations scholars are quite or historically were quite impatient with the international law people saying it really is just power. Yeah, yeah. But I think we're all increasingly globally interconnected in a way that that sense of a cultural and sociological force is able to operate across the whole globe when the news is so instantaneous and and there's such rapid reactions. Yeah, yeah, yeah. I think that that that yeah, again that globalization of of economics of cultures and I think of understanding what's sort of going on in the world a lot more definitely is a great way to yeah, kind of have this dialogue in relation to the law. And I'll suppose move on to another change tact and move on to another question. I just wanted to take the opportunity to do something a little different. I mean, we have been and we've been discussing concepts in the law. And as an experienced academic like yourself, when people think of law and education as a fundamental concept, that's often not too far away, and that's the idea of justice. Drawing on your experience, could you give us your perspective on the concept of justice and in today's society, it's relationship with the law? Oh OK another huge question but I yeah, I think that's been a thread of quite a bit of what we've been saying is that when when law is doesn't fit with community perceptions of justice or whether they come from religion in some circumstances you know what then happens. I mean I I used to there's there isn't 1 technical way of teaching law is to sort of disavow the connection and really teach it as a technical technical business. That is is about chains of authority that justify their authority on the basis of rules that aren't directly connected to any sense of justice. And it it's it's nice if they overlap but it's coincidental. But I think I remember asking students in legal theory class in an early class, you know what most disappointed you about your law studies so far? Just as a way of trying to get people to sort of step back from the minutiae of every class and start the class with a big open mind. And. And often the, I would say the answers revolved around two kinds of aspects of the law. One was more it's complexity and cost and slowness and the difficulty of actually using it as a as an instrument or a tool at all. But the other was the the feeling that the divorce between Law and Justice was really quite disillusioning. Yeah, Yeah, so, so, I mean, legal theory is 1 route to reinvigorate, But I hope that I, I feel, think we all at UNSW feel like our teaching is infused. I mean, we've got references to Justice in the mission statements. And tag lines. And there are so many forms of justice that that it's a it's a great I guess when you said how does it relate to, sorry, I didn't mean to interrupt. You. No, no, no, no. Well, I was just going to say like in in relation to justice, there's this. I I suppose when I think of it, it's it is a shifting sort of thing where perhaps this idea of retributive justice, which is perhaps a little bit more old fashioned. This idea that regardless of whatever that person's circumstances were or whatever else it was, this idea that yes, justice would be done in a sort of a more, yeah, retributive sense where now it's more justice is, is actually taking into account a lot of more people, sort of individual circumstances and and the way the society operates around that. Yeah. Oh, I think and and even even when there's an element, I was thinking about reparations and the the movement around that and how there's an that's in some ways connected to retribute of Justice, but it's it's recasting it as a repair. Literally in the word reparations and that it's a way of moving forward rather than a revenge for the past. But I mean there's lots of this, that sort of fairness, procedural fairness, which that fits quite well with law, that that's the part of justice that doesn't clash too often with law. And there's a more substantive fairness with all the debates over things like welfare benefits and how much do we redistribute to those who are disadvantaged economically. But as yeah, as you say, there's also now much more attention to, I think, Justice's recognition and identity, plural identities and different ways of being. You know who you are inside. So if if law can accommodate that rather than assume everybody's similar, it's not an easy task, but it's it's an inspiring one. But. Yeah, I I think it's, I suppose it's kind of this the Retribute of Justice kind of operates on, I suppose the presumption that everyone is of the same capability to some degree or or isn't influenced by different factors. And I suppose what I mean by that is, you know regardless of of of your standing or whatever else, a thief or something like that would be treated the same, you know, however many years ago. But now I think there's a lot more considerations of of the individual and other factors that I think make the law I suppose. Again, the shifting from this idea of sort of baseline equality, I don't know if that's the right term or so. Did they were all equal or or that everyone should be treated equally versus well? No, there should be actually different. Yeah, well, that's a good. For fairness, you know, for fairness's sake, there needs to be people that are perhaps given a bit more leeway or or or perhaps given a bit more consideration in relation to things like generational trauma or you know, drug abuse or or family familial situations and that sort of thing, so. One of the things I was thinking of when you were speaking about that was the the rules in Theory of Justice, where where they it might might relate more to what you were saying was the standardized assumption. But he used it as a device in some ways to try and get people to design a system that would be responsive to individual circumstances. So you had the veil of ignorance. You had to imagine that you had a veil in front of your eyes about who you were going to be. And then what kind of legal system would you design or what principles of justice would you come up with if you knew nothing about what who you were going to be when you stepped into the world. And then you you have to sort of accommodate all the possible variations that could come from that. And he comes up with principles with that method, So that's a clever way of bringing those two together. Thank you for listening to the Australian Law Student Podcast. The following segment is questions from the Bench. Here we ask our guests a set series of questions designed for you to get to know them better and to get the key advice to help you on your journey. Each week we also take a question from you, our audience, Head over to our socials and send us a message to get your question answered. Thanks for listening. So without further ado, we'll move on to some perhaps rapid fire questions. These questions are a bit more fun and a bit more get to know you. So I hope that listeners have enjoyed the perhaps more theoretical and abstract conversations. But yeah, moving on up to the first question, what was your favorite subject in more school, Norman? So it was a subject called law and social justice, which was an elective I took towards the end. It wasn't actually the theory subject that I had to take but I was just intrigued by the the phrase social justice really and and it was an eye I I remember having a passionate debate. I wasn't especially passionate because it was all new to me. But those class had this passionate debate over whether rules or theory of justice that I just mentioned came up with principles that were elitist. And so somehow the class turned into discussion of whether government some funding support for opera was socially just. And I just I found that such a bizarre topic to be debating in law school that I kept thinking, where am I? This is just a new world and all the ideas that were being thrown at me, which I hadn't come across at all because I'd studied literature undergrad. So I just was unfamiliar with political theory and that was, yeah, just fantastic. Yeah. Yeah. I imagine that would. Made me interesting. Yeah, it's very fascinating. I do wonder how that the conversation actually reached that point. But yeah, yeah, it's interesting. What's 1 habit that you believe is being pivotal to your success in the legal field? So this is probably specific to my particular pathway through the legal field, but I I think it's it is. It is endemic to law to an extent. It's curiosity to link things would seem otherwise unrelated, unrelated. So to cross fields and to say you know, that seems to be like this in a completely different field, but to link them through law. And I was thinking of it as like a hyperlink kind of mentality. And the problem now is that there are so many hyperlinks in the actual Internet that it's actually a a death knell for productivity. So I still have that habit of linking across and across and across. Yeah, it's a productive one and it's been very creative, but you've also got to put a stop to it at some. Point. Yeah, yeah, definitely. I mean, but I think that would absolutely like help with more creative thinking. And I think that's definitely something that's not as advised or perhaps not as thought about as being as important, but creative thinking and that sort of idea of, yeah, linking things that perhaps haven't been linked before. So yeah, moving on, can you name a book or a movie that's significant to you and one you'd recommend to students? So the one I came up with a significant to me, it's called Don't Let's Go to the Dogs tonight. It's probably a fairly obscure title but it's it's an autobiography of a woman who grew up in Zimbabwe, which is where I grew up. And it's she was born almost the same year as me. And it's it's very funny and but it's it's also so close to my life that it's an eerie experience to read a book that reflects your own childhood so closely. So it's a great book to have to give to people who want to understand, you know, sort of where. I came from. That's very personal, but the one I'd recommend, I mean, it's a good read but the one I'd like, yeah, I'd like to encourage people to read Ministry for the Future, which is a science fiction novel by Kim Stanley Robinson about climate change and and sort of sit in the near future. And actually, I mean I won't go into detail, but it's it's one of the most creative ways of thinking about how could we have incremental reform. Going back to your question earlier about, you know, we need to balance radical change with incremental reform. And this book shows that, you know, the biggest challenge that we face, this enormous problem, climate change can have various creative incremental things that respond well to it. But it's also great read. It's it's got a shocking couple of first chapters in terms of confronting, but plow on through them and then yeah, it becomes more optimistic. Yeah, yeah. Well, thanks. Thank you so much for those recommendations. I I suppose for students aspiring to make an impact in the world, what skill or qualities do you believe is most important for them to develop? I thought about this for a while and I really feel tolerance for uncertainty. I don't know how that relates to being a lawyer exactly, but I just think for making an impact at at the time we're at in the world, that some sort of tolerance for coping with uncertainty at quite multiple levels is going to be crucial. Yeah, yeah. I suppose just from being able to to cope and function standpoint I think yeah that that's that's very like abstract, but I I definitely appreciate that. Now thinking about it's like yeah, I think as someone who likes to at least view the future as somewhat certain in certain areas and that sort of thing. It it's yeah, having to tolerate some level of uncertainty I think is good because it also allows you to try and think a bit more to to to to think in other perspectives as well and and to not get locked in on to into one way or the other. And I think that's important for an adaptable society. But yeah, did you always envision yourself practising in the field that you you are in? And if not, what did you think that you'd do? Oh, as an academic? No, no. That class combined with one other class. It never crossed my mind to become an academic. So if the teacher hadn't suggested it, I've always appreciated that I thought I wanted to be a diplomat. When I did law school, I didn't see myself becoming an academic and I took a career test once which said I should either be a researcher or a primary school music teacher, which I thought was quite funny. Different. And so what's the greatest piece of advice you've ever received, I suppose is is obviously a broad question, you might have several pieces, but yeah. Well, yeah, I thought about that a bit too. And I I received the same piece of advice twice from two different people at different times in my life, which was, and it was in relation to Korea. But it was the piece of advice was to not forget about the rest of your life when you're making big career choices. And to to make the career choice based on the fact that you need friendship and community in the first instance or that you might wanna leave a little space in your life for children if you. I just think it's in my context. I used to forget about that, having a holistic appreciation of why you're doing what you're doing beyond even when it's a work decision. I think, I think I think of like that advice is refreshing. I feel. I think a lot of people perhaps going to the law really scared about that, that sort of stuff, that. They That's why I really appreciate it, because I think, I mean, the first one made me choose Berkeley over Yale for various reasons, and that was the best choice I ever made, you know, at postgrad education. And the second one indirectly made me end up, you know, having a family. So and it's just, yeah, I just think just to give you perspective step back. Yeah. So maybe it has to do with tolerating uncertain. Yeah, yeah, yeah, as well. Oh, interlide it. And so finally, this is our last question and this is from one of our listeners. Do you think there are personality traits that gear a person to be more suited to an area of law? And if So, what are the personality traits of a good legal teacher? I decided they were like quite separate questions because my my instinct answer to the first one is, well, I I actually think it depends probably more on the client base or the stakeholder group that you work within the area of law. I think the ability to relate to that area whether it's with financial acumen or appreciation for social disadvantage or is, is probably going to matter more and and it's a case of being empathic but retaining your technical skills. But I was tempted to just answer that the this, the trait is the ability to tell people in effect that the answer is always it's complicated or it depends without disappointing them because it's often what lawyers end up having to cope with. And so I don't know that that translates into teaching a good trait. I felt like that was a different thing. I had AI had a former teacher of mine who said there were two kinds of teachers. And this stuck in my head. There's either they're either like Shakespeare or like Milton and what do you. Because I was a literature scholar. What he meant was that Shakespeare's the kind of person who inhabits other people's worlds. You don't. No one even knows, really, who Shakespeare was. He creates these plural worlds with lots and lots of different approaches. With Milton created Paradise Lost and and and it was almost like he was God. He was the the poet and he was God and he was the myth maker and the storyteller. But the Shakespeare is more the facilitator and the connector, and I think I'd probably identify with the Shakespeare more than the Milton. Yeah, yeah. Well, on on that, no problem. Thank you so much for joining me today. I hope that and I know that our listeners will really enjoy this conversation. So thank you so much and all the best for the future. Thanks. Thank you.