A new centre for legal research has been named after a leading legal scholar who wrote one of the most influential torts texts during a somewhat tumultuous time for the fledgling national university and his own career overseas.

For many a young legal scholar a text de rigueur for the last 50 years has been The Law of Torts, first written by John G Fleming during the 1950s when he lectured and undertook legal research at Canberra University College (CUC).

Described as a “path-beating treatise” by his obituarists at the University of California, and as the “probably the most influential book on Australian law” by his friend and colleague, ANU Professor of Law Peter Cane, The Law of Torts has guided many a student of law and practising lawyer through the world of personal injury and negligence, as well as more esoteric torts, since it was first published in 1957.

The connection of this great book and its author to ANU lies behind the naming of a new centre that has recently been established at the University.

The John Fleming Centre for the Advancement of Legal Research came into being at the beginning of 2007, when the Law Program in the Research School of Social Sciences moved to the ANU College of Law.

Cane says the establishment of the Centre marks an important development in legal scholarship at the University, while its name acknowledges the important legacy of the past.
Fleming was born in Berlin in 1919. At the age of 16, he was sent to Britain for schooling. He became a British citizen, and after receiving his legal training at Oxford University, he served in the British Army in World War II between 1941 and 1945. Later that year he returned to an academic career as a law lecturer at the University of London. He received his PhD in 1948, a year before emigrating to Australia to take up a position at the CUC.
Professor Robert Garran – lawyer, public servant and first ANU graduate –
was on the Council of the CUC and the new national university at the time of Fleming’s arrival. Garran’s extraordinary career in the federal public service, and his strong support for the establishment of the CUC, led to the creation of a Chair in his name. Fleming was the inaugural holder of the Robert Garran Chair in Law in 1955 (it is currently held by Professor Michael Coper, Dean of the ANU College of Law).

During his time as the Robert Garran Professor of Law, Fleming published The Law of Torts, as well as many journal articles and lectures on topics such as accident law and social insurance, liability for suicide, and tort liability for damage to hire purchase goods.
“Fleming’s work – particularly The Law of Torts – contributed greatly to the reputation of the CUC Law School,” Cane says.

“He was in Canberra at a critical time in the development for ANU. He was much involved in discussions about how the College might be acceptably amalgamated with the University.”
The 1950s was a time of robust discussion about what form the academic structure of the new national university and incorporated CUC should take. It was proposed – and eventually agreed – that in lieu of a professorial board like that of other universities at the time, there should be two boards at ANU, one for the incorporated faculties and another for the existing research schools.

The argument for this unusual structure was that two boards would ensure that decision-making about the University would not be dominated by professors of the CUC: this was a concern of the Research Schools at the time.

According to the authors of The Making of The Australian National University 1946-1996, Fleming disagreed with this proposal, warning it was “risky”. Fleming believed that if there were “no dominant academic body, important academic matters might well be determined by the Council and the executive”.

“Later years would prove him right,” the authors write. “The ANU Council often seemed more powerful and assertive than councils and senates of other universities.”
Letters held by the ANU Archives gives some indication of the passion which Fleming brought to these discussions. Former ANU Vice-Chancellor Sir Leonard Huxley described him as an “able and energetic man, somewhat fiery in personality” in a letter of reference in the 1960s. Famed professor of jurisprudence and international law Julius Stone described Fleming as having a “vigorous, undoubtedly first-class and at times brilliant” mind but also a “certain brusqueness of manner”. Fleming’s correspondence reveals his aim to establish a law school of repute and a man deeply involved in teaching and research matters and concerned with the ongoing resourcing of the law library and staffing issues of his department.
In an obituary published in the Canberra Times following Fleming’s death, the author Douglas Smith wrote that “Fleming remained unaffected by the international esteem which his work attracted ... Behind the towering scholar and teacher there was a warm, articulate, humorous and lovable man. He could be passionate in a Catholic way about many things from automobiles to economic policy, social values, world affairs, good wine.”
Another challenge for Fleming presented itself in the form of the US State Department. Between September 1957 and June 1958, Fleming undertook a State Department sponsored exchange to the University of California at Berkeley, which offered the internationally renowned scholar a full-time position.

But the US State Department had different ideas. Reportedly worried that the poaching of top academic staff from Australia would damage relations between the two countries, it rejected his visa application. The controversy attracted national media coverage, with the Age of the 19 May 1958 reporting that the refusal “cost the University [UC Berkeley] one of the world’s leading law professors”.

But by 1959, when Fleming had returned to Australia, ongoing representations to the State Department had an impact, and Fleming resigned one month before the amalgamation of the CUC and ANU to take up a position as Shannon Cecil Turner Chair of Law at UC Berkeley.

In a letter acknowledging his resignation, the Head of the CUC, Joe Burton, wrote that Fleming had “brought lustre on the College as well as upon yourself by your published work, especially your book on The Law of Torts.”

Fleming remained at UC Berkeley for the rest of his academic career, but he visited Australia and ANU often. He became a colleague and friend of Cane, who with Professor Jane Stapleton edited a book of essays in honour of Fleming, The Law of Obligations: Essays in Celebration of John Fleming, which was published in 1998, shortly after Fleming died.
The new Centre’s name honours the achievements and memory of this great legal scholar and his contribution to ANU. Cane, Stapleton, Emeritus Professor Leslie Zines, Ernst Willheim and a clutch of PhD students are now ensconced in the ANU College of Law building where they enjoy the lively and stimulating intellectual and social milieux of the College.

International conferences, workshops for early and mid-career scholars, and public and undergraduate lectures by distinguished visitors to the Centre will help to deepen and broaden the already strong tradition of legal scholarship, teaching and research in the ANU College of Law and in other areas of the University.

Material for this article was sourced from files of the ANU Archives Program, the University of California’s In Memoriam (1997) and The Making of The Australian National University 1946–1996, by S.G. Foster and Margaret M. Varghese.

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ANU Reporter 
Spring 2007