I’m looking forward to leaving the Law.
Yes, after more than 40 years as a student and practitioner, I’ll be retiring from legal practice at the end of this month. Some people have asked me, kindly, if I’ll be doing any “non-legal work” in my “retirement”. That sounds a bit doddery and even vaguely unlawful! I prefer to think of what I’ll be doing as “post-law”.
Post-law aims to resolve conflict and build accord without recourse to law, legal rules, or legal processes. It links more to the pull of community and relationship than to the push of State and power. It finds affinity with social norms and professional standards rather than with tribunal processes and regulations.
In my case, a transition to post-law is prompted by critical attitudes developed in the informal justice movement over the years and draws together learnings from mediation, conflict resolution, and integrative practice.
My friends in the workforce enablement, recruitment, and staffing industries may be aware of recent work I’ve been doing to design industry codes, standards, and conflict resolution models that are kinder, more human-centred, and more values-informed in their pursuit of professional excellence than the legalistic, anti-competitive, and self-interested models that are often promoted as codes of “association ethics”.
The RCSA Code for Professional Conduct (“Code 5”), recently the subject of a favourable ACCC draft authorisation, is a project that is informed in many ways by post-law thinking.
It replaces a professional conduct regime that has been based on rules and punishments with one that is based on professional values and guidance. It is not written as an abridgment of selected laws (such as workplace laws, discrimination laws, consumer protection laws, or privacy laws) but as an articulation of professional values drawn from the principle of Respect for Persons and from Ethics of Care normative theory. It requires Members to adopt professional values personally and to embed them operationally in their organisations.
You might have seen the Current Affair item, aired on 27 May 2019, which reported on a Western Australian “recruiter”, who was caught on the telephone speaking in a derogatory manner about a candidate, after having “stalked” the candidate via her social media account. The recruiter declined to proceed with the candidate because of what she found in her Facebook profile…or so the story goes.
You can view the Current Affair item here:
For her part, the recruiter attempted to deal with the media confrontation with as much grace as she could muster, given the embarrassing circumstances in which she found herself.
Industry stalwart, Ross Clennett was asked to comment as an expert recruiter (impressively as always) and several lay people offered their views – mostly amounting to “it’s unfair” or “it’s discrimination”.
What intrigued me – and I think it’s worthy of comment in this context – was that “unfairness” and “discrimination” are both claims-based concepts, which rely heavily on legal rules and procedures. And as far as the legal rules go, a claim of unfairness or discrimination might not be compelling in these circumstances.
There would be some evidence of indirect discrimination on the grounds of gender if the recruiter’s stalking of social media accounts were limited to the accounts of women candidates. But that seems to lead to a bit of a dead end in this case.
There might also be some issue about privacy. But the gravamen of the complaint is not so much that the information was collected, as the way in which it was used – or more specifically the adverse judgments that the recruiter made based on the information collected and the hurtful discussion that was overheard to take place between the recruiter and her colleagues.
Law states a rule, proves a breach and then looks for a remedy.
A post-law approach might ask a question – “What is the right (or professional) thing to do here?” And then looks for a pathway to the “right” or “professional” outcome.
There is a place for both, of course. And although post-law seeks outcomes that are within law (i.e. they are lawful), its outcomes are not achieved by law.
That is why I think that a code, which can frame conduct – not as unfair, discriminatory, or a breach of privacy; but more accurately as “unprofessional” – provides a superior framework, in many circumstances. The conduct which was portrayed in the Current Affair programme is unprofessional precisely because it fails to demonstrate the respect and care due to candidates – respect and care, in the case of RCSA’s new code, providing the two broad ethical systems that inform Code 5 and its statement of professional values.
Strip away legal arguments about whether there has been unlawful discrimination, actionable unconscionability, or breach of privacy (with all its uncertainties about where the boundaries lie), and you’ve got a simple issue – Did the recruiter act professionally? That question is not so hard to answer.
And once it has been answered, the remedial and corrective pathways – freed of technical defences – provide, in my opinion, vastly superior means of achieving satisfactory outcomes that seek, not punishment and compensation, but improvement of professional standards and remedial conduct according to a standard of restorative justice that is “becoming of a professional member” of an industry association.
In many ways, that is quite close to what I mean when I say I’m retiring from legal practice to take up “post-law” practice.
But it doesn’t mean I get to go fishing… just yet.
For me, it means moving away from a model of legal practice that I’ve become familiar with over four decades to embrace a different model with new challenges.
I’ve said to a few people that I’ll be spending my time resolving disputes rather than agitating them. But, perhaps more accurately, I’ll be working with people to help them to find ways of solving their own differences.
I’ll be developing and encouraging the potential for professional self-regulation within the workforce enablement industry – meaning behavioural self-regulation in accordance with professional values, rather than the “closed shop”, anti-competitive type of industry self (interested) regulation that is often passed off as a code of ethics.
And, through learning design work with WorkAccord and through private research, I’ll continue to explore the field of knowledge that must still be mastered if there’s to be hope for emerging professionalism within a post-law environment.
So, I’m not actually “leaving the building”, as they say. I’m just moving to a different floor. Maybe one that’s a bit closer to the ground.
Andrew C. Wood