Harmonization or Homogenization? the Globalization of Law and Legal Ethics - an Australian Viewpoint
Mark, Steven, Vanderbilt Journal of Transnational Law
This Article examines the pressures of globalization on the practice of law and legal ethics from an Australian perspective. The Article first examines the positive aspects of globalization and then turns to the potentially disruptive and homogenizing aspects of globalization upon indigenous and non-Western societies. Next, the Article considers how globalization threatens to disrupt tradition and culture in Western societies, specifically focusing on the tradition of the law and legal practice. Finally, the Author discusses the response of the Australian legal profession to the demands of globalization. The Author examines changes that have been implemented to the legal practice and the structure of the legal services market, particularly in the state of New South Wales. The Article concludes by predicting that globalization has the potential for undermining legal ethics.
As the twenty-first century surges ahead with its rapacious spread of English
language, English law, and the mighty U.S. dollar under the banner of globalization, one must remember there is an inextricable bond in society between ethics, culture, and identity. This Article will examine the pressures of globalization on the practice of law and legal ethics from an Australian perspective.
This Article begins with a general consideration of globalization, assessing its positive aspects. The Article then turns to the homogenizing effects globalization can have, particularly upon indigenous and non-Western societies, with its potential for causing social and economic disruption, and more importantly, the rupture of culture and identity.
The Article then considers how globalization, with its supremacy of market forces, also threatens to disrupt tradition and culture in western societies, focusing on the tradition of the law and legal practice. Will pressures to harmonize national and transnational legal and ethical systems and pressures to push legal practice from the realm of a profession into that of a business result in a homogenization of culture?
Finally, the Article turns to the Australian experience where the legal profession--like many of its counterparts worldwide--is grappling with how to respond to the demands of globalization. Here, major changes to the structure of the legal services market and legal practice have been implemented, particularly in the State of New South Wales (NSW). As a regulator of the legal profession, the Author foresees many potential problems, including the undermining of legal ethics, which shape the law as a profession and form the backbone of the rule of law.
A. The Impact of Globalization
Over the past twenty years or so, one economic philosophy has held predominance throughout the western world. This is, of course, the philosophy of economic rationalism, which holds that market forces above all else should shape our economic and political decision making. It is core to free market capitalism and the driving force behind globalization.
As globalization commentator Thomas Friedman explains, "(T)he more you let market forces rule ... the more efficient and flourishing your economy will be ... [G]lobalization ... has its own set of economic rules ... that revolve around opening, deregulating and privatizing your economy...." (1)
In Australia, this philosophy has been embraced with zeal. (2) As a result, the notion of living in a society with all its attendant cultural mores and habits is being supplanted by that of living in an economy. Everything--from healthcare to correctional services, to education and the arts, to the professions, including legal services--is being reconsidered in light of market forces in which profit appears to be the fundamental goal. (3)
As such, there is increasing pressure on lawyers in Australia to treat legal practice only as a business, perhaps heralding the erosion of its traditional paradigm as a profession. …