Legal Pluralist Law Reform
June 1, 2016
BY Sebastian Ennnis
BCLI has recently participated in a number of discussions about the measurement and evaluation of law reform impact. Thinking about impact raises questions about the very nature of law reform. What is law reform and what does it achieve? Where do you find it? What does it look like?
As part of that reflective process, our research assistant, Sebastian Ennis, came across an article by Dr. Roderick Macdonald, a prominent legal scholar and former President of the Law Commission of Canada. The article, entitled “Law Reform for Dummies (3rd Edition),” outlines the idea of “legal pluralist law reform.” Dr. Macdonald defines legal pluralist law reform as “the exercise of engaging citizens in dialogue through which they gain richer insight into their normative lives and learn how to manage their everyday interaction with each other.”
Dr. Macdonald’s overview of this concept provides a unique picture of law reform that may help us to better understand the nature of law reform work and its impact. Below is a brief summary of some of his key points.
First, Dr. Macdonald does not describe the law as something strictly formal, the sort of law often associated with legal institutions. He writes:
Law is not brute fact, but is a fragile human accomplishment, which is at once a powerful and dynamic human institution. It reflects, at the same time as it helps to shape, the character of society. Law is a powerful lens through which citizens are able to view and judge their society. Over time, it comes to express citizens’ beliefs and convictions as well as their prejudices and pathologies.
As a human expression, the law, according to Dr. Macdonald, is in as much flux as society itself and the lives of everyday people. “[T]he living law,” he writes, “is always in motion.”
In this light, how the law is expressed and experienced, how it is “lived”, is an important insight into law reform and the way law changes. For Dr. Macdonald, it means that “[c]itizens are always the most important law reformers, constantly changing the substance of official written law through their practices. . . . The unofficial practices by which this everyday law is constituted, debated, followed, and ignored are the real engines of official law reform.” The way that law changes “in the real world” (as opposed to the way it changes through government initiative, for instance) is at the heart of Dr. Macdonald’s idea of legal pluralist law reform.
What, though, would legal pluralist law reform actually look like? To begin to imagine this, Dr. Macdonald offers three ways in which society’s approach to law reform would need to shift:
- “it would be necessary to accept that law reform, like law itself, need not be institutionalized in a particular way”;
- “the methodologies and expected outputs of the law reform process would have to be broadened and pluralized”; and
- the idea that law reform is episodic and discontinuous would have to be challenged by the notion that “law reform might consist of an ongoing process of implicit legal change.”
In other words, under legal pluralism, we might expect law reform to take place in both formal and informal places, tackling official and unofficial law. These initiatives might look to achieve something other than legislative change. And legal change would likely be held to be the norm rather than the exception.
Dr. Macdonald’s full article can be found online.
