Free Hands and Minds

Peter Brett (1918–1975), Alice Erh-Soon Tay (1934–2004) and Geoffrey Sawer (1910–1996) are key, yet largely overlooked, members of Australia's first community of legal scholars. This book is a critical study of how their ideas and endeavours contributed to Australia's discipline of law and the first Australian legal theories. It examines how three marginal figures – a Jewish man (Brett), a Chinese woman (Tay), and a war orphan (Sawer) – rose to prominence during a transformative period for Australian legal education and scholarship.

Drawing on in-depth interviews with former colleagues and students, extensive archival research, and an appraisal of their contributions to scholarship and teaching, this book explores the three professors' international networks and broader social and historical milieux. Their pivotal leadership roles in law departments at the University of Melbourne, University of Sydney, and the Australian National University are also critically assessed.

Ranging from local experiences and the concerns of a nascent Australian legal academy to the complex transnational phenomena of legal scholarship and theory, Free Hands and Minds makes a compelling case for contextualising law and legal culture within society. At a time of renewed crisis in legal education and research in the common law world, it also offers a vivid, nuanced and critical account of the enduring liberal foundations of Australia's discipline of law.

1. Introduction
History and Legal Education
Brett, Tay and Sawer
Why Brett, Tay and Sawer?
Feminism and Life History
Concluding Remarks
2. Australian Legal Academics: A Short Intellectual History
Introduction
Law Professors and the Case for University Legal Education
Tradition and Change – Founding an Australian Intellectual Tradition
A Period of Change: 1950–2000
Conclusion

PART A
PETER BRETT
3. Brett and the Americanisation of Australian Law Schools
Introduction
Brett and the Melbourne Law School
The Makings of a 'Liberal Humane Scholar'
A Legal Process SJD
Taking Legal Process Seriously
Reception
Concluding Remarks
4. The First Theory for Teaching Australian Criminal Law
Introduction
Brett and Waller
Legal Process in the Australian Classroom
Brett and the Australian Judiciary
Reception
Intellectual and Practical Obstacles
Student Impressions
Fracturing the Teaching Team
Concluding Remarks
5. One of Australia's 'Pillars of Justice'?
Introduction
Orr
Tait, Beamish, Ratten
A Mixed Reception
Concluding Remarks
6. A Professor of Jurisprudence
The Last Professor of Jurisprudence at Melbourne
'The Most Urgent Contemporary Task'
Conclusion – Peter Brett

PART B
ALICE ERH-SOON TAY
7. Morality and the Legal Academy
Introduction
The Makings of an Academic Warrior
An Open Mind – John Anderson
Possession
The Sociological Tradition
The Australian Legal Academy
Concluding Remarks
8. Tay and the Department of Jurisprudence: Reigniting Hostilities
Introduction
Reigniting Decades of Division
Origins of the Division
Tay's Appointment
9. Tay and the Department of Jurisprudence: Stone's Successor
Introduction
Tay's Credentials
Tay and Stone – Different Sociological Traditions
A 'Beachhead' for Jurisprudence
The Antidote
New Protagonists
Concluding Remarks
10. Tay and the Department of Jurisprudence: An Academic Entrepreneur
Introduction
The Rise of an Academic Entrepreneur
Motivating Principles
The Heart of the Department
Concluding Remarks
11. Critic of Australia's Legal Academy
Introduction
Critique of Australian Legal Education and Scholarship
Feminist Legal Scholarship
Conservative or Liberal?
Limiting Tay's Legacy
Conclusion – Alice Erh-Soon Tay

PART C
GEOFFREY SAWER
12. Politics, Law and Society
Introduction
University Life and Politics
Traditional Underpinnings
Concluding Remarks
13. A Case Against Law's Autonomy
Introduction
A Smorgasbord of Legal Theory
Sawer's Constructive Legal Realism
A Response to the Realist Dilemma
Bank Nationalisation
Australian Federal Politics and Law
Strengthening the Doctrine of Precedent
'We're All Socio-Legal Now' (and Always Have Been)
A Middle Ground
Concluding Remarks
14. Sawer and the Research School of Social Sciences
Introduction
Sawer's Appointment to a World-class Australian University
The Department of Law
Early Ambitions
Dean of the RSSS
Entrepreneurial Qualities
Strengthening International Networks
Recruitment
Doctoral Students
Concluding Remarks
15. Sawer and the Future of Australian Academic Law
The Path Not Taken
What Might Have Been
What Occurred
16. Conclusion
Learning Lessons
Lives and Careers
Local Conditions
The Heart of Australian Law Schools
Law Schools and Society

“[W]hile it is unquestionably a work of impressive scholarship, it is also a timely meditation on the role of legal education and the discipline of law in Australia… Free Hands and Minds makes compelling claims about the important place of Australian law schools in our society… a provocative and really masterful work but just as importantly, a terrific read.” –  Professor Jan McDonald, University of Tasmania, Australia

“A superb contribution to legal life writing and the transnational history of legal education and scholarship. Bartie's accomplishment is to recover the lives, contributions and times of three very different marginal figures who played a leading role in the broadening of academic law in Australia. One of the many virtues of this wonderfully novel book is the way that it illuminates the relationship between their scholarly activity, politics and the growth of the discipline of law; the importance of international networks of legal scholars embracing America, Australia and Britain; the variety among "progressive" legal scholars; and the significance of gender. In the process, Bartie offers vital insights, while highlighting some of the intellectual, institutional and moral confines of the discipline of Law.” –  David Sugarman, Professor Emeritus, Lancaster University Law School