The Effects of the Hidden Curriculum in Australian Legal Education

Abstract

The explicit learning outcomes for Australian legal education describe what every graduate is 'expected to know, understand and be able to do as a result of learning'. However, in Australia and overseas, critical research and commentary have argued that legal education produces outcomes that are not part of the explicit curriculum. Law schools are accused of producing combative, competitive, ethically flexible graduates, lacking empathy or motivated by external reward despite the explicit curriculum's advocacy of flexibility in problem-solving, ethical conduct and community service. Alternatively, law school's role in promoting outcomes inconsistent with the explicit curriculum discourages students who reject them from completing their studies. To the extent that these outcomes are not part of the explicit curriculum, they are hidden.

Research and commentary on the hidden outcomes of legal education assume that law school is the primary agent and cause of the outcomes they examine. It also tends to assume a universality or uniformity in the outcomes for law students. The assumption of a mostly binary, one-way causal link between the actions of a dominant, active law school and the outcomes for a homogenous and passive law student cohort is understandable.

However, learning never happens in a vacuum. Students' learning is affected by diverse influences, including students' personal histories, experiences, and values. It is also affected by agents that students consider more persuasive or authoritative than classroom teachers, including peers, employers, media, and family. Students do not passively receive and accept learning but are actively engaged in interpreting and reconstructing the information they receive from various sources.

Despite the significant role of law students' characteristics and the external influences that may impact them, there is very little empirical research on the outcomes that law students perceive as flowing from law school and those that do not.

To the extent that law school is accused of promoting behaviours inconsistent with the explicit curriculum, the incomplete nature of existing research, and the diversity of both causes and outcomes, present a problem. It is a serious allegation that contradicts law schools' fundamental purpose and attempts to make it responsible for outcomes that potentially harm law students, the legal profession and the broader community.

This thesis fills the 'law-student-sized hole' in research and commentary on the effects of the implicit or hidden effects of the Australian explicit legal education curriculum. It subverts the traditional top-down approach to research. It asks law students to identify in their own words their perceptions of the causes and effects of the hidden curriculum in law school. Interviews with 65 Australian law students at the Australian National University and the University of Canberra are coded and analysed using an attributional coding methodology to identify perceived agents and their associated outcomes to establish a causal link between the two. Coding and responses are discussed by reference to three broad themes - relationships with law teachers, the explicit curriculum, and evaluation - modelled on Phillip Jackson's seminal work on hidden curriculums in education. The content of interviews is analysed using a deductive and inductive method based on recognised learning theories.

The thesis affirms some assumptions about the implicit effect on law students (e.g., promoting emotionless approaches to problem-solving and a sense of individualism). However, it also finds that there are aspects of law school that are far less influential on law students than assumed when compared to the roles of potential employers, peers and even law students pre-existing beliefs about themselves.