OPINION
Monday, August 31, 2015 9
Our Brave New Legal World, its Epistocrats
and its Discontents
michael motala › staff writer
“
W
e l i v e in rapidly changing times,”
writes Osgoode’s Associate Dean Trevor
Farrow. Ethical questions are “continuously changing as a result of global
trends.” The “complexity of today’s world is an issue
for all lawyers.” Needless to say, globalization has
been in vogue in the academy for more than a decade,
not just in professional circles. So why is there so
much talk and so little impact?
Why do tuition and licensing fees increase year
after year while the access to justice crisis worsens?
Why is there an ever-growing gap between the supply
of graduates and the availability of jobs? Why do students increasingly suffer from mental health issues
under internecine academic competition? Why is
there a law school in BC that actively discriminates
against LGBT? What accounts for the legal academy’s cultural and institutional inertia in the face of
our profession’s—and Canadian society’s—mounting
social and economic challenges?
Our profession’s history is intimately connected
with the forces of globalization, but not in the frame
of reference adopted by most scholars. The definition
of globalization is contested, to be sure. But there is
common ground in the idea that it entails the spatial
transformation of social and economic relationships,
increasing flows of activity, interaction, and power.
Canvassing the profession’s history in Ontario, and
the manner in which law as an institution has mediated social and economic relations, it is apparent our
gatekeepers and regulators have used the institution
as an instrument of oppression. The unspoken aim is
to perpetuate and insulate the legal institution’s social
and economic privilege from the rest of society.
Ontario’s legal and political model originates in the
United Kingdom’s imperial enterprise. Globalization
in this era entailed the demographic spread of ethnic
Europeans to other parts of the world. In addition to
physically displacing indigenous peoples, European
settlers used the law as an instrument to disempower
them. Courts never engaged with the basic question
of their own sovereignty in the context of European
conquest. Records indicate judges and lawyers were
overtly discriminatory to their subjects.
The notion that indigenous peoples were lawless
imposed a social reality that dehumanized the native
population. This experience has become so embedded
in the collective consciousness of racialized groups
that it continues to define the institutional features of
legal practice and society at large. Still today, less than
a handful of aboriginal candidates secure a spot in law
school despite the academy’s best efforts at outreach.
The Law Society of Upper Canada, founded in the
18th century, was modelled after the Inns of Court in
the UK. As the local Canadian industry moved from
Montréal to Toronto in the 19th century, Canada’s
robber barons installed an insular community of economic power, imitating the British model of aristocratic privilege. The law firm was the nexus of
finance and industry, then as now. In fact, William
Osgoode—Ontario’s first Chief Justice and the namesake of Ontario’s original law school—was a prominent member of the Family Compact. As Constance
Backhouse has argued, the wealthy protestant elite
who presided over the LSUC fashioned the legal profession in their own image.
Next came the period of globalization from confederation to the Second World War.
Inflows of immigrants enriched Canada’s ethnic
and cultural complexion. Therefore, the legal
profession’s gatekeepers made rules to entrench
racial and social hierarchies. With substantive law
such as the Chinese head tax, Japanese internment
during the war, and the Komogata Maru incident,
the professional
organization constituted itself as a
bastion of whiteness to reinforce
male Anglo-Saxon hegemony in Ontario.
The history of Ontario’s legal profession illustrates
how the flows of globalization have empowered a
predominantly white and insular legal and capitalist elite. Too little ink has been spilled on the perpetuation of socio-economic privilege in law today,
and what that implies for the economy and society at
large. In