By LSS member Daniel Anderson *
Legal pluralism. What on earth does it mean?
Well, legal pluralism is the concept of having multiple legal systems within one jurisdiction. If you think that sounds very familiar you’ll be right! In effect, legal pluralism is nothing more than a sugar-coated academic term for having numerous parallel legal systems. I want you to remember the term “legal pluralism”; I fear we will be hearing and seeing much more of it in the future.
In my previous article, “Enemies of secularism”, I sought to draw attention to the current attempts by members of the legal profession to advocate parallel legal systems (but with that sugar-coated academic term, legal pluralism). I worry that these advocates are merely laying the foundations for a future trend that is set to dramatically influence the next generation of lawyers, and not for the better.
This next generation of lawyers, if we are not careful, will no longer respect the rule of law and what it entails. Instead, this next generation of lawyers will be at ease with legal pluralism and will practise in whichever particular parallel legal system they have been brought up in.
You think I exaggerate? Here’s my prediction of how the next generation of legal pluralists are to be nurtured:
Step 1: Education at the increasing number of faith schools (or non-faith schools where religion features heavily, such as the “Trojan Horse” schools)
An extremely narrow education will take place where reading is based on a few select books (or one book). It is here that children will first be introduced to the particular parallel legal system.
Step 2: Law professors at university teaching legal pluralism
You will recall that we met Professor Malik and Professor Cooke in the previous article. Sadly, there are many other similar individuals at universities across the UK, notable examples of which include Professor Prakash Shah and Professor Shaheen Sadar Ali. This trend will continue.
Step 3: Law schools with parallel legal system electives
After university, would-be solicitors currently study the Legal Practice Course (LPC). Some modules on the LPC are compulsory, such as Property, Litigation, and Business. As part of the LPC students also have a certain free rein to study other courses; these are known as “electives”.
It would not surprise me in the future to see the introduction of parallel legal system electives, perhaps introduced initially as part of a mediation or arbitration elective. These optional modules could also be a feature of Step 2, at universities, because undergraduate students also get to pick some non-compulsory modules.
Step 4: Law firms with parallel legal system departments
There are already some law firms who have departments specialising in areas of “law” where there have been no statutes created by Parliament. This is becoming increasingly common. Again, this trend will continue.
Step 5: Continual community “demand” for parallel legal systems
So-called religious/cultural leaders (how they’ve been appointed is usually not at all clear) will continue to demand their own parallel legal systems for all those who they apparently represent.
This “demand” will drive all the previous steps 1 to 4. And the more activity that takes place within Steps 1 to 4, the more emboldened the Step 5 “leaders” will become in pushing for continued and ever-heavier Steps 1 to 4 – and the more these “leaders” will be indulged. A vicious legal circle.
Why should we care if our next generation of lawyers are legal pluralists? Quite simply, because the next generation of lawyers will take into account their own personal idiosyncrasies, as well as those of the client, in how they practise law. This is not what being a lawyer is about. As a lawyer I’ve always recognised that – as part of the rule of law – my personal opinions are irrelevant. And, likewise, the personal characteristics of the client are also irrelevant. What only matters as a lawyer is the actual law made by a democratically elected Parliament and how it is to apply to the relevant facts of a particular case.
In contrast, the legal pluralists will take into account all manner of irrelevant considerations as part of their parallel legal system. In essence they become their own unaccountable lawmakers. But they become the lawmakers which their so-called religious/cultural leaders want them to be through all the nurturing steps mentioned above. Therefore, allowing the next generation of lawyers to become legal pluralists poses serious dangers for the most vulnerable in society, as well as society’s ability to function as a collective whole.
We must stop this apocalyptic vision coming to fruition.
Legal pluralism? Legal nihilism, more like.
* Daniel Anderson was an LSS member from Oct 2014 to Jul 2015
Views expressed are not necessarily those of the LSS
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