By Aisha Collins
I love studying law almost as much as I love complaining about studying law. Motivation ebbs and flows, but I (finally) figured out about halfway through my second year of Uni that motivation can be nurtured if given the right stimulus. The times throughout my law degree where I’ve felt the most uninspired have been in the absence of a creative outlet, or when I have felt disconnected with how the law I am studying practically applies in the world and impacts people on a day to day basis. So, when I saw the position of Magazine Director advertised in one of my course group chats in the middle of my bi-semesterly study slump, I decided to apply, thinking the position might re-ignite my passion for the world of law and the goodness and change it can bring. A celebration of creativity and collaboration and diversity of thinking within the law? Passion-filled words and art by young student contributors exploring socio-legal problems in our society? Let’s get stoked!
A year and a half on, I’ve been reflecting upon why linking law and creativity is so important to me. Before commencing my law studies I had little knowledge of what it’d be like to study law, but the preconception the study of law is rigid and laborious and potentially dry was enough to convince me I should pair my LLB with an Arts degree, as a way to ensure I’d “actually enjoy” at least some of my courses. It doesn’t sound like a great pretence upon which to start my tertiary education, but I am pleased to report that I’ve found myself pleasantly surprised. To me, the study of law absolutely rewards creativity, especially when considered in hypothetical problem-solving contexts. When I started talking to my friends about the idea I had to write an article about the nexus of creativity and the law, however, I found that my position was not as widely shared as I’d previously thought. A bit of research and crowd sourcing of opinions confirmed this.
“If there’s one profession that stifles creativity, it’s the legal profession”, practitioner Jeff Bennion is quoted by Alexander Carter in a 2020 paper exploring creativity in the law[i]. This same paper goes on to cite a recent survey of legal professionals in Australia, which concluded that creativity is often undervalued in Australian law firms[ii]. Another 2017 a study surveying employer’s perception of the most valuable traits for legal professionals affirmed this position[iii]. In comparison with other skills such as prudence, rigour, and competency creativity hardly charts. “We are taught not to be creative”, Bennion continues. “Try writing a legal memo not using [H]IRAC … It won’t end well”.
This certainly rings true, to an extent, in an examination context. We all know that getting a good mark hinges on clear and concise application of the law within the HIRAC structure, and the more obvious adherence to this structure is, the more likely you are to get a good grade. But I don’t think we should be viewing this this strict adherence to a logical framework as a creative hinderance. While I was never very good at mathematics, and concluded at a young age that numbers were simply “not my thing”, something in my brain just really digged the satisfaction I gained from working through a formula step by step and reaching a conclusion. To me, legal problem solving in law school encompasses everything I loved about my math classes in school, while at the same time compensating for what I didn’t excel at. You have a legal problem, and you have a formula you need to use in order to solve it: HIRAC. However, instead of numbers, you use words, and where strict application of the rules doesn’t lead you to the answer you desire, when you can’t crack the formula, you can fall back on creativity. Perhaps, then, it’s a matter of perspective. I don’t believe that logical argument grounded in precedent and adhering to legal frameworks need to preclude creative thinking.
Not only, in my opinion, do our studies reward creative application of the law, but I think our society needs it. In fact, I think creativity is the very driving force behind legal innovation, but too often goes uncredited. How case law precedent is applied in our current day and age needs to adapt as our society does. Our interpretation of the constitution, and other legislative provisions, also need to adapt as new circumstances require them to be construed in different contexts. We need law degree graduates who are able to think differently from within the box, if we consider that box to be legal framework. Of course this still entails those legal procedures be followed, but in an enabling sense, not a restricting one. As Alexander Carter suggests, we should perceive legal frameworks as tools to be used as opposed to restrictions to adhere to[iv].
One thing that’s clear to me is that if we want to encourage legal creativity and innovation, then the way we approach our law degrees is definitely the place to start. With more and more courses following the structure of the 40% and 60% two-assessment split, I applaud the course convenors mixing it up with op-ed assignments and in-class student led presentations, incorporating different approaches to learning about the law and encouraging students to take creative approaches to their studies. Perhaps the more value we place on creative problem solving and exploring different ways of learning from and about the law, the more engaged and passionate our student body might become.
Your law student mag
Looking for creative inspiration? Have a flick through a Peppercorn Magazine the next time you’re in the law library. See what aspects of the world of law your peers are passionate enough about to write and draw about and create things from. Better yet, shoot us an email and get involved. I promise, we’re loads of fun!
Endnotes [i] Alexander Carter, “Creativity in the Law”, The Impact Lawyers (June 2020). [ii] ALPMA/InfoTrack Survey Report 2017, “21st Century Thinking at Australian Law Firms”, (2017). [iii] LegalEdhec Research Centre, “How do managers perceive the law and legal practicioners,” Business & Legal Forum (October 2010). [iv] Alexander Carter, “Creativity in the Law”, The Impact Lawyers (June 2020).