27.01.2021
William Isdale, Senior Legal Officer, ALRC
At the start of this year I made the move from a large law firm to the Australian Law Reform Commission. Day to day, I still rely on many of the same skills and focus on the same legislation and case law. And yet, the move from advisory lawyer to law reformer has required me to develop a different way of thinking about the law – a ‘law reform mindset’.
What is the ‘law reform mindset’? It seems to consist of five key features, which I discuss in this short piece. I believe that understanding these features will not be of merely idle interest to others. Instead, these features are also useful ‘tools’ to uncover new dimensions of meaning and develop a richer appreciation for the law (and its problems).
1. Coalition building
As a lawyer, clients come to you with their legal problems. They are eager to know the answer and usually willing to act on your advice. The same can’t be said for law reform. As Parry observes, the first step in the process of law reform “is to convince people that reform is required”.[1] There are at least two obstacles in this regard:
- First, that people are unaware of the need for reform, or uninterested in the topic. This is a particular challenge where the law is highly technical (such as for financial services). There may be “apathy, hesitancy, uncertainty and similar forms of passive resistance” to change.[2]
- Second, there may be active resistance to change. Sometimes there are good reasons for such resistance; other times the status quo simply suits those with vested interests. As Professor Goodhart has observed, “having once become accustomed to a rule, the ordinary man dislikes the effort which any change will entail on his part.”[3]
The ALRC’s recommendations are not self-executing.[4] They must be implemented by Parliament. Countering inertia requires generating interest in the potential for reform and what it might look like; mounting a clear case for change; and building coalitions of stakeholders who support change, or whose concerns have at least been considered and – where appropriate – addressed. Only then is Parliament likely to be persuaded “at long last to grasp the nettle”.[5]
2. Problem hunting
An experienced lawyer once told me that “clients don’t pay for problems. They pay for solutions”. As a result, advisory lawyers are unlikely to go looking for more problems than they need to – there are usually enough to deal with! As Parry writes, “[l]egal practitioners can rarely spend the time to consider the need for reform except in regard to isolated anomalies”.[6] Further, however absurd the law appears to be, there is usually no point in bemoaning it – you simply have to deal with the cards you are dealt.
As a law reformer, this fatalism must be swept aside. Every problem encountered is an opportunity for improvement. For that reason, law reformers go hunting for problems, and we experience delight – rather than dread – when we find them. In my time at the ALRC so far, it has surprised me just how much of the law – which I once took for granted – now appears as a hodgepodge of infelicities. Opportunities for improvement abound!
3. Legal archaeology
Lawyers are usually concerned with the law as it is. Legal history may be regarded as a luxury. In comparison, law reformers must be legal historians and archaeologists, probing the antiquity of fossilised principles and provisions, and their predecessors. It is essential to ask the question: where did these strange creatures come from, and why?
Understanding the origins of law is critical because it usually clarifies why it is as it is. As the late American jurist Oliver Wendell Holmes wrote:[7]
“The substance of the law at any given time pretty nearly corresponds, so far as it goes, with what is then understood to be convenient. … its form and machinery, and the degree to which it is able to work out desired results, depend very much upon its past.”
Only once we understand the rationale for the law as formulated can we begin to consider whether that rationale continues to have force, and whether the same ends might be achieved in other ways.
4. Listening
Lawyers rarely seek the perspective of more than a few people on an advice. The strictures of legal professional privilege will ordinarily prevent you from doing otherwise. For litigators, having served a statement of claim (or filed some other pleading), critical responses from other parties are usually regarded as something to be resisted, since your colours are already nailed to the mast. As a result, our adversarial system of justice can promote oppositional ways of thinking and make it harder to take persuasive criticism on board.
Law reformers have to resist oppositional thinking. They must actively seek out diverse perspectives and hear from all stakeholders. It is important to actually listen and not be wedded to pre-conceived ideas. This consultation process must not only involve lawyers: it is important to hear the views of industry, community groups, academics, regulators, and the general public. As North writes, “law reform is too important to be left to lawyers”.[8]
5. Jigsaw puzzle playing
Last, but certainly not least, law reformers must be good at jigsaws. Lawyers have their fair share of thorny legal problems to contend with, but law reformers are faced with the additional challenge that they not only seek to play jigsaw, but to change the board on which it is played. As Gower writes:[9]
“If you take out one piece and refashion it, it won’t fit back into the rest of the puzzle unless you refashion the adjoining pieces too. And if you tinker with them there is no stopping.”
Notably, ‘puzzle piece’ iconography features in much of the ALRC’s branding. Every day, a portion of my email signature reminds me of the challenge:
Considering whether new pieces of law will cohere with the old can be particularly tortuous. There are many paths the law might go down, but it is only once you start the venture that you discover whether or not you are heading towards the intended result – or towards a dead-end. This part of our work has confirmed for me the old adage that it is easy to find problems, but much harder to find solutions. As Goodhart observes:[10]
“It may be recognised that a rule is not working in a satisfactory manner, but nevertheless it may be difficult to suggest that a better rule can be substituted for it.”
Conclusion
The five features I’ve outlined are ones that I’ve found to be particularly important in my new role as a law reformer. The focus on these features by ALRC employees is the reason why, I believe, “[s]uccessive governments and Ministers in Australia have found the ALRC a very useful source of independent advice”.[11]
But arguably these features – or ‘tools’ – can help all of us to shed new light on the law, whatever our jobs may be. Accordingly, the ‘law reform mindset’ isn’t only for law reformers.
Having adopted the law reform mindset, you might find yourself stumbling upon – with greater regularity – the kinks and crevasses of the law, or getting lost inside its nooks and crannies. You may find injustice; you may find perversity; you may find undue complexity. If you do, please consider getting involved in the process of law reform. We all have a stake in the quality of our law, because we are all governed by it. While “the process of law reform can be tedious and the obstacles discouraging”, “the end is worthwhile”.[12]
Useful Resources
The ALRC’s current inquiries
The ALRC law reform process
Justice Michael Kirby’s reflections on law reform
Oliver Wendell Holmes’ book The Common Law
Implementation of ALRC recommendations
[1] David Hughes Parry, ‘Reflections on the Process of Law Reform’ (1959) Current Legal Problems 1, 2.
[2] Ibid 4.
[3] Arthur Goodhart, ‘Law Reform and Law Making’ (a reprint of a series of broadcast talks for the BBC, 1953) 21.
[4] Australian Law Reform Commission Act 1996 (Cth) s 21 (“The Commission’s functions”).
[5] L.C.B. Gower, ‘Reflections on Law Reform’ (1973) 23(3) University of Toronto Law Journal 257, 265.
[6] Parry, above n 1, 4.
[7] Oliver Wendell Holmes, The Common Law (Macmillan & Co, 1882) 1-2.
[8] Peter North, ‘Is law reform too important to be left to lawyers?’ (1985) 5(2) Legal Studies 119, 128.
[9] Gower, above n 5, 264.
[10] Goodhart, above n 3, 22.
[11] Michael Kirby, ‘Reflections on Law Reform and the High Court’ (2009) 34(1) Alternative Law Journal 41, 41.
[12] Parry, above n 1, 11.