In the 21st century, the legal profession has become increasingly global and perhaps more dynamic than ever before. The unprecedented challenges of globalisation and technology transcend geographical barriers, national cultures, legal frameworks, and political systems. As a result, the modern day lawyer must be prepared to readily adapt in order to fulfil the growing necessity for global perspective and ethical orientation in a perpetually changing field. However, such preparation as a global lawyer is easier said than done because the future is becoming progressively more uncertain.[1] For example, international laws continue to expand yet the world is experiencing ever greater fragmentation.[2] Social media instantly sheds light on injustices yet it influences and reaffirms isolationist politics, and globalised inter-connectedness permits improved cultural competency yet legal frameworks based upon discriminatory and colonial values remain largely intact. Additionally, further complications are likely to arise when lawyers attempt to transpose the already elusive Anglo-American foundation of the rule of law onto the diverse international domain.[3]
International Law & Fragmentation
Paradoxically, our world is simultaneously becoming both more integrated and more fragmented.[4] International law and corresponding human rights norms have gained strength through acknowledgment by domestic judiciary systems, regional economical and political bodies such as the EU, ASEAN, and the WTO support State interdependence.[5] The ICJ sets standards to ensure that international justice respects principles of the rule of law, and treaties such as the Paris Climate Change Agreement promote collaborative transnational legislation.[6] Conversely, and alongside globalised integration, we are seeing a retreat back to decentralised State-centric law and politics as States counter threats to their sovereignty. For example, we are only just beginning to learn of the impact 'Brexit' will have on UK lawyers as uncertain legislation changes and EU detachment removes areas of UK legal work whilst simultaneously creating a demand for lawyers capable of navigating the gradual fragmentation.[7] Similarly, the political divergence and instability of internationally influential powers such as the United States amplifies uncertainty for lawyers operating globally.[8] Namely, the stark juxtaposition of political views (see: Obama, Trump, and Biden) concerning climate change and the Paris Climate Change Agreement. Evidently, global unpredictability and instability regarding the longevity and relevance of laws, both domestically and internationally, poses a significant challenge to present day lawyers.
Social Media & Politics
"Part of what social media does is allow us to see a reality that has been entirely visible to some people and invisible to others. As those injustices become visible, meaningful change follows.” - Omar Wasow, Professor at Princeton University and co-founder of BlackPlanet.com.[9]
The effect of globalisation and, in particular, social media stretches far beyond economic market shifts. We as a society of humankind are able to witness first hand the injustices taking place thousands of kilometres away from our homes; perhaps even the instant they occur.[10] It is much more difficult for the individual citizen to remain blissfully ignorant of extraterritorial injustices, however it is also more challenging for democratic State leaders to downgrade the importance of international events in their list of priorities. The internet and social media may therefore be said to have expanded upon the UN's principle of 'Responsibility to Protect' from specifying global State-centric obligations regarding mass atrocities such as genocide to bringing the global community together to protest and demand change on a national or systemic level.[11] Social media is therefore a powerful tool which lawyers and advocates must understand and utilise domestically and internationally in both criminal and civil jurisdictions. Additionally, social media could empower lawyers to prioritise human rights considerations during legal consultation with clients, as failing to consider one's 'social licence' now poses a significant risk.[12] Likewise, according to Otto Kahn-Freund, legal transplantation into foreign institutions may now occur more readily as modern media greatly reduces the burden of environmental obstacles or political factors.[13]
However, the immense influential power of sites such as Facebook and Twitter is largely unregulated, 'fake news' can be spread six times faster than true news (see ‘The Social Dilemma’ on Netflix), and legislating remains complex and slow. Therefore, lawyers must operate in an unprecedented world not only in terms of untried legislation but also one perhaps more susceptible to drastic societal, political and legal upheaval.
Cultural Competency & Ethics
It is important, if not essential, for all global lawyers to possess a globally oriented sense of cultural competency and intelligence; regardless of where they are practicing.[14] As Hofstede explains, there are multiple dimensions to national cultures and understanding them is essential in order to decipher and communicate with the diverse range of people around us.[15] The new generations of law students and lawyers have more access than ever before to the global world around them. This means we have both the opportunity and incentive to broaden our perspectives and avoid cultural imperialism and relativism during negotiations and meditations.[16]
However, such diverse interconnectedness is also the source of great complication for progressive lawyers. Particularly where their understandings of justice and ethics, perhaps liberal or Western, are in direct opposition with that of another State legal system or culture. In January 2021 a High Court judge in India ruled that groping a child through their clothing did not constitute sexual assault; whereas in Victoria such a sexual assault of a child constitutes a maximum penalty of 10 years imprisonment.[17] Additionally, lawyers operating transnationally in States with more outwardly patriarchal cultures or systems may be confronted with a struggle of upholding feminist ideals whilst respecting the law and avoiding engagement in neo-colonialist acts.[18]
Adapting to globalised challenges
As today’s globalised world poses a multitude of benefits and challenges to present day legal professionals it is important to establish potential solutions, or ameliorating strategies, with which global lawyers may adapt to our exceedingly dynamic and unpredictable world. Regardless of whether you are operating domestically, transnationally throughout multiple jurisdictions, or in the international arena, all 21st century lawyers must acquire and refine their interpersonal and globally-oriented skills in order to fulfill the requirements of today's globalised legal industry.[19]
Step One: Legal Education and Training
Many of the biggest challenges lawyers face today are global.[20] It is therefore essential that lawyers possess a global perspective and digital competence which can be utilised when negotiating, advising clients, and operating in firms of all sizes. This process begins with education and training. Law students and lawyers alike must be provided with opportunities to broaden their jurisdictionally focused understanding of the law through globally oriented law units, CPD programs, and (when we're not in the midst of a global pandemic) international legal experience. These opportunities should be integrated into the legal education framework and highlight the importance of:
1. Cultural Intelligence & Global Orientation - Today's lawyers require these skills for effective collaboration and communication with those of various cultures, ethics, and professions. Without expansive cultural intelligence lawyers will be unable to truly understand one another, their clients, or the legal systems in which they operate; and without globally-oriented lawyers some of the world’s largest legal problems will remain unsolved.
2 . Digital Capabilities - Lawyers must harness technology in order to streamline communication and administrative tasks (especially during the pandemic), increase access to justice, safely and securely operate online, and truly understand the power of social media influence on societies and legal systems. For example, cybersecurity governance and regulation remains contentious internationally despite its global implications; lawyers must therefore recognise and be prepared for this uncertainty.
3. Flexibility - The legal profession often focuses on routine and precedent, yet today's lawyers must be taught to adapt quickly to constant change, compromise, and evolve. Whether it be remaining informed about a State’s fluctuating immigration policy and public sentiment, adjusting a negotiating strategy or meeting time to show consideration for another parties cultural needs, or recognising and resolving misguided prejudices; flexibility to change is essential.
Ultimately, the first step to successfully navigating and adapting to the globalised world as a global lawyer is to seek out broader education or training opportunities which emphasise the above skill set, and then apply them to practice.
Step Two: Expanding Qualifications
The next step you may take as an aspiring global lawyer seeking to adapt to globalisation is to become more qualified. Australian lawyers or law students, particularly (although not exclusively) those with dual citizenships, may seek to expand their understanding of the law on a global level by becoming qualified to practice in foreign jurisdictions. Admittedly, this step is not for everyone, and therefore an alternative option may be to study or practice in the field of International Law. Whether you are practicing in Australia or abroad, knowledge of international law will inevitably be useful as it affects everyone everywhere and provides greater insight into the workings of our interconnected world. Law students and lawyers can seek out opportunities at international institutions such as the ICJ or UN in order to develop their legal flexibility and better establish themselves as capable of operating internationally and adapting to change; which is commonplace in international law. Additionally, becoming more 'globally qualified' will provide exposure to alternate cultural perspectives.
Global lawyers can commence the process of adapting to a globalised legal profession by seeking to understand jurisdictions and areas of law beyond, yet connected, to their own. This will assist in the development of a global perspective and greater self awareness.
Step Three: The Rule of Law
The task of navigating the rule of law as a global lawyer is far from simple. Lawyers who practice transnationally and operate within jurisdictions which define the rule of law differently or lack it entirely are up against a systemic challenge bigger than the individual. In the case example of China, foreign representative attorneys may become aware of judicial corruption and question the validity of a decision (China's conviction rate in 2019 was over 99%) with limited success. However, the access that globalisation provides can be harnessed by lawyers - responsibly and whilst avoiding hegemonic colonial tendencies - to support the development of the rule of law and reinforce legal integrity. For example, international law firms should maintain anti-bribery standards and reaffirm core values through proactive training strategies; regardless of geographical location (as displayed by companies in Indonesia and Myanmar). It is important that global lawyers seek to truly understand the specific challenges of the relevant jurisdiction because this will allow them to tailor policies which normalise the rule of law and incentivise its global implementation.
Moreover, it is crucial that global lawyers possess a strong moral compass with which to bridge cultural and geographical divisions and readily adapt when applying the rule of law internationally. Yet, firms and lawyers alike must frequently perform due diligence by critically analysing their own moral compasses and making space for diverse alternative views to challenge the dominant rule of law system. Thus, the individual global lawyer has an important part to play in considerately promoting and redefining the rule of law worldwide.
As the future of the legal profession becomes increasingly uncertain and globalisation necessitates adaptation, the above recommendations seek to lay the foundations for the development of competent global lawyers. The good news is that our globalised world has also created many opportunities for 21st century lawyers to progress and evolve if they so choose. Good luck!
References:
[1] Yuval Noah Harari, Yuval Noah Harari on what the year 2050 has in store for humankind, Wired, <https://www.wired.co.uk/article/yuval-noah-harari-extract-21-lessons-for-the-21st-century>.
[2] Flood, John A., Globalisation, Law, and Lawyers in a Time of Crisis: Introduction to The Global Lawyer by K Galloway, M Castan, and J Flood (LexisNexis, 2020) (October 16, 2019). The Global Lawyer by Kate Galloway, Melissa Castan, and John Flood (LexisNexis, 2019, Forthcoming) , U. of Westminster School of Law Research Paper, Available at SSRN: https://ssrn.com/abstract=3470568
[3] Hisashi Owada, ‘The Rule of Law in a Globalizing World - An Asian Perspective’ (2009) 8(2) Washington University Global Studies Law Review, 187-205.
[4] Edith Brown Weiss, The Rise of the Fall of International Law, (2000) 69 Fordham Law Review, 345-372.
[5] Lindsay Maizland and Eleanor Albert, ‘What is ASEAN?’, Council on Foreign Relations (online, 24 November 2020) <https://www.cfr.org/backgrounder/what-asean>.
[6] Andrew Clapham, ‘Globalisation and the Rule of law’ (1999) 61 International Commission of Jurists, 17-33; ‘The Paris Agreement’, United Nations Climate Change, <https://unfccc.int/process-and-meetings/the-paris-agreement/the-paris-agreement>.
[7] ‘The effect of ‘Brexit’ on lawyers’ (2015) Chambers Student, <https://www.chambersstudent.co.uk/where-to-start/newsletter/the-effect-of-brexit-on-lawyers>.
[8] Yu Ning, ‘Opinion: Is the US falling apart? Many Americans think so’, Global Times (online, 17 January 2021) <https://www.globaltimes.cn/page/202101/1213060.shtml>.
[9] Shira Ovide, ‘How social media has changed civil rights protests’, The New York Times, (online, 18 June 2020) <https://www.nytimes.com/2020/06/18/technology/social-media-protests.html>.
[10] Milton C. Regan Jr and Kath Hall, 'Lawyers in the Shadow of the Regulatory State: Transnational Governance on Business and Human Rights' (2016) 84(5) Fordham Law Review 2001.
[11] ‘What is R2P?’ The Global Centre for the Responsibility to Protect (online, retrieved 3 May 2021) <https://www.globalr2p.org/what-is-r2p/>.; Elle McLogan, ‘Social media’s role in the racial justice movement: ‘the conversation is moving so much more quickly, CBS New York (online, 10 July 2020), <https://newyork.cbslocal.com/2020/07/10/social-media-and-racial-justice/>.
[12] Regan Jr and Hall (n 10), 2005.
[13] O Kahn-Freund, 'On Uses and Misuses of Comparative Law' (1974) 37(1) Modern Law Review 1.
[14] Kate Galloway, Melissa Castan, and John Flood, The Global Lawyer, (LexisNexis Butterworths, 2019).
[15] National Culture, Hofstede Insights (online, retrieved 5 May 2021), <https://hi.hofstede-insights.com/national-culture>.
[16] Ellen Waldman and Charles Pou, Mediation Ethics:Cases and Commentaries, (Hoboken: John Wiley & Sons, Incorporated, 2011).
[17] Indian court rules groping child without removing clothes is not sexual assault, CNN (online, 28 January 2021) <https://www.9news.com.au/world/indian-court-rules-groping-child-without-removing-clothes-is-not-sexual-assault/5063d46f-a8d1-41f9-bc9a-2d2e45b64906>; s49D Sexual Assault of a child under 16, Dribbin & Brown Criminal Lawyers (online, retrieved 3 May 2021), <https://www.criminalsolicitorsmelbourne.com.au/?what_we_do=sexual-assault-child-16>.
[18] Ziba Mir-Hosseini, ‘Beyond ‘Islam’ vs. ‘Feminism’, (2011) 42(1) IDS Bulletin; Ziba Mir‐Hossein, ‘Muslim Women’s Quest for Equality: Between Islamic Law and Feminism.’ (2006) 32(4) Critical Inquiry, 629-45.
[19] Laurel S. Terry, ‘The legal world is flat: globalisation and its effect on lawyers practicing in non-global law firms’ (2008) 28(3) Northwestern Journal of International Law & Business, 527-59.
[20] Mark Cohen, ‘Law’s challenges are global. A broader perspective would help solve them’ Forbes (online, 20 November 2016).
Madeleine Constanti is currently completing her LLB (Hons), BA (International Relations/Criminology), and Diploma of Languages (French) at Monash University. Madeleine is particularly interested in multi-jurisdictional areas of the law and the effect of globalisation on legal systems and practice.