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,
social justice and law.
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?
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 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 the concept of law.
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 practical world,
in the context of other institutions. And so for me, it's always, it is always a socio-legal
endeavor. That's my interest in it. And if you step back and think that law is a human construct,
and yet it seems to operate,
as this external power, that's the source of fascination is, it's not out there, 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 especially when it doesn't work, I think that's what also led me to be interested in
theories. 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 it always falls short of what it promised to do. So how do we justify that?
Yeah, and I suppose talking about, I mean, that idea that the law is simultaneously created by us,
yet sort of we give it this power that it's not. Is that kind of a thought that's perhaps
developed over time, this idea? I mean, obviously, there is, you know, there's a lot of, you know,
there's a lot of, you know, there's a lot of, you know, there's a lot of, you know, there's a lot of,
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 relation to this?
And how does, how should society go about looking at the law if,
human construct should we still see it with this kind of um yeah sort of uh validity in that it's
it is higher than yeah that's a great question because 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 um and uh and did the wrong thing 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 bit of a back and forth between trying to externalize 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 uh a tool that we can kind of shape and shift in the way that we see
fit and so um with society um 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 is an instrument and a tool is
is almost common sense now but 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 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 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 sort of the laws embedded inside
to help promote pluralism 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 is an instrument works but otherwise it veers towards authoritarianism
yeah yeah and so it can be kind of used for yeah the purposes of few rather than the purposes of
perhaps 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 um you know i think um a very famous
quote about democracy i don't know it was by george washington or something i've heard it but
it is it's um yeah two wolves and a lamb sitting down at a dinner table and deciding what to have
for dinner and so it's kind of um it is kind of um perhaps it's it's better more of a um a view
on democracy rather than a view on the law itself but i think it's it's kind of um it's kind of
a view on the law itself but um how do you think the law can be more um inclusive to ensure that
the people at the at the fringes the people perhaps in lower socioeconomic standing or people
who have disabilities and that sort of thing uh uh the people who are often perhaps less of a voice
how do how do we incorporate that in a more um uh legal instrumentalist um perspective oh huge
question um i mean because it catches um the the sort of debate between more radical
critical views of of law um and ones that that have that more liberal view that are 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 is 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 like and i think that's a really good point i think that's a really good point i think
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 indice 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 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
properties and you had more shared ownership of properties and you had more shared ownership of
the big 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 yeah
okay through system change rather than through targeted legal instruments yeah yeah 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 that I mean I think I think there's um definitely a
branch of of academics and and people who are looking to try and create change who yes would
like to sort of um I guess are open to this idea of perhaps more radical change of sort
of repealing and then um perhaps um yeah trying to create the actual foundations of the law um 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 trying to take okay this is the past and this is what we
have to work with I mean is that perhaps too conservative of a view no it's and I think the
structure of legal um 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 think it's just like do you know those
projects where you rewrite judgments from um alternative perspectives so something like that
which is working with the existing legal material but the feminist judgments or the wild law book
you know from the non-human perspective it just says okay 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 nice balance yeah 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 um again at the core of the law and and the way that it is able to be sort of
perhaps respected and regarded in such a sort of um fundamental thing that holds um Society together
is um I don't know if this is perhaps again maybe a bit cynical but this idea of um Force
or this idea that the State has um the right to use Force in um in um
uh yeah sort of enforcing the transaction they're able to use um force and have a means of violence
that sort of thing um is is that um is in what way does that play into your um understandings 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 um you know
even even the possibility of of doing that you know um doing something in your own private house
that might be a little bit illegal something i don't know downloading a movie or something like
that people might do um even though that they're um the sort of threat of um so they might not do
that even though 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 yeah 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
necessary it's tacit often but if law gets too far out of step with that then there is that phrase
as you said the legit 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 um in the way that
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 um perhaps that shared sense of communal morality
feels a bit like the same way a religious precept 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 at the what we're talking about this now there's
obviously a lot of um disagreement amongst the international community for example um with events
going on in the middle east and um is is is this idea that just because i mean um the other thing
is with with international law it's this idea that um bigger states are able to um in a kind
of the enforcers of um um there's this sort of i think it's an austinian viewpoint where it's this
is only so effective as to the point which again it's enforceable by bigger states or perhaps the
collective of countries um and look at things like the nuremberg trials and that sort of thing that
that's where that sort of comes to effect um whereas in a perhaps in a domestic sense um if
you have different groups that are all coming together does that perhaps pose an issue i think
for society or or this sort of cultural does there need to be a point where cultural differences
can be made in a way that's not just a cultural thing but a cultural thing that's not just a
and um and um but but there needs to be some level of underlying um um underlying beliefs and values
that can keep the um 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 um 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 um but the existence of multiple groups and the
toleration and celebration of that um within a national state that is operating on a liberal
democratic basis there's a kind of a commitment to supporting that sort of plural plurality and
across nations other nations might choose to do something differently and then it'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 um but i think we're all
involved in this and i think we're all involved in this and i think we're all involved in this
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 yeah again that globalization of
of economics of cultures and i think of um understanding what's sort of going on in the
world a lot more definitely is is a is a great way to um yeah kind of have this
dialogue um in relation to the law um i'll suppose move on to um another change tact and
move on to another question um i just wanted to take the um opportunity to do something a little
different i mean we have been and we've been discussing concepts in the law um and uh as
an experienced academic like yourself um uh when people think of law education there's a fundamental
concept that's often not too far away and that's the idea of justice um drawing on your experience
could you give us your thoughts on that and i think that's a really good question and i think
your perspective on the concept of justice and um in today's society um its relationship with the
law oh okay another huge question but um i yeah i think that's been a threat 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 um
i mean i i used to there's there isn't one technical way of
teaching law is to sort of disavow the connection and really teach it as a technical
a technical business that 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'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
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 um one was more its 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 um so i mean
the legal theory is one route to reinvigorate but i hope that i i feel i think we all at unsw
feel like our teaching is infused i mean we've got references to justice and mission statements
yeah and there are so many forms of justice 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 no no well i was just going to say like um in relation
to justice there's this i suppose when i think of it it's it is a kind of a cornville without a
is a shifting sort of thing where perhaps this idea of retributive justice um which is perhaps
a little bit more um old-fashioned um this idea that um 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 um yeah retributive sense where now it's more justice is is actually taking into account
a lot of more people's sort of individual circumstances and and the way the society
operates around that yeah um 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 retributive justice but it's it's recasting it as a repair um literally in the
word reparations and that it's a way of moving forward rather than a revenge for the past but
um i mean there's lots of there's the sort of fairness procedural fairness
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 said 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 alt 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
i suppose it's kind of this the retributive justice kind of operates on i suppose the
presumption that everyone is of the same capability to some degree or isn't influenced by
different um factors and i suppose what i mean by that is um you know regardless of
of of your standing or whatever else a thief or something like that would be treated the same
um 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 um uh sort of uh baseline equality i don't know if that's the right term so that
they were all equal um uh 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 um that are perhaps um given a bit more leeway or or perhaps given a bit
more um consideration in relation to um things like generational trauma or um you know drug abuse
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 Rawlsian theory of justice where where they it might it might relate more to what
you're 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 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 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 um so without further ado we'll move on
to some um perhaps rapid fire questions these questions are a bit more um fun and um a bit more
get to know you so i hope that um our listeners have enjoyed the perhaps more theoretical and
abstract conversations but um yeah moving on to the first question what was your favorite subject
in law school roman so
it was um 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-opener i remember
having a passionate debate i wasn't especially passionate because it was all new to me but
the class had this passionate debate over whether rules of theory of justice that i just
mentioned um 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 um that was yeah just fantastic yeah yeah i imagine
that would made me interested it's very fascinating
i do want to have that conversation actually reached that point but yeah yeah it's interesting
um what's one habit that you believe has been pivotal to your success um in the legal field
so this is probably specific to my particular pathway through the legal field but i i think
it's um it is it is endemic to law to an extent it's curiosity to link things which seem otherwise
unrelated unrelated so to cross fields and to say oh you know that seems to be like this
um 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 death knell for productivity so i still have that habit
of linking across and across and across yeah um 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 i mean but i think that would
absolutely like help with
um more creative thinking and i think i think that's that's definitely something that's not
as um advised or perhaps not not as thought about as being as important but creative thinking and
that sort of idea of linking things that perhaps haven't been linked before so yeah um 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 is 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
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 it's very personal but the one i'd recommend um 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
which is a science fiction novel by um kim stanley robinson about climate change and and sort of set
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
various creative incremental things that respond well to it but it's also a great read
it's it's got a shocking couple of first chapters in terms of confronting but
plow on through them and then it becomes more optimistic yeah yeah well thanks thank you so
much for those recommendations i suppose um 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 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 a uh 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's um yeah having to tolerate some level of uncertainty i think is good because
it also allows you to try and think a bit more um to to think in other perspectives as well
and to not get locked in onto into one way or the other and i think that's important for
um an adaptable society but yeah um did you always envision yourself practicing in the field
that um you you are in and if not what did you think that you'd do oh as an academic no no that
i didn't think that i'd be an academic for four years so um as i have screw up school now i'm
going to go back to theatch school i'm going to go back to theatch school and then when i've
got the class it's not going to be the case um because you know i've had a class together since
i was 11 years old and i've never had a class in other classes combined with one other class
i'd never crossed my mind to become an academic so if the teacher hadn't suggested it
i always appreciated that i thought i wanted to be a diplomat um when i did law school i didn't see
you've ever received i suppose is um obviously a broad question you might have several pieces but
um 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 career
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 know you might want to leave a little space in
your life for children if you yeah i just think it's in my context i i used to forget about that
yeah having a holistic um 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 a lot of us is
i feel i think a lot of people um perhaps going to the law really scared about that that sort of
stuff that 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
post-grad education and the second one indirectly made me end up you know having a family so and
i just think just to give you perspective stick back yeah um
so maybe it has to do with tolerating uncertainty yeah yeah yeah as well oh interrelated um and so
finally this is our last question and this is from one of our um listeners um 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 and i couldn't decide whether they were quite separate
questions because my my instinct answer to the first one is um well i actually think it depends
probably more on the client base of the person that you're talking to and the person that you're
talking to that you're talking to or the stakeholder group that you work with in 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 gonna matter more 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 um the ability
to tell people in effect that the answer is always
it depends without disappointing them because that's often what lawyers end up having to cope
with um and so i don't know that that translates into teaching a good trait um i felt like that
was a different thing i had a i 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 he because i was a literature scholar what he meant was that shakespeare is
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 voice
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 probably identify with the shakespeare more
than the milton yeah yeah um well i'll
on that note roman thank you so much for joining me today um i hope that um and i know that our
listeners will really enjoy this conversation so thank you so much and all the best for the future