(Or, Committing to the Good, the Bad, and the Ugly)
I have heard many arguments against accrediting TWU’s proposed law school: that it discriminates against LGBTQ law students and staff; that it will create barriers to accessing legal education for LGBTQ students; that increasing the number of law graduates in Canada will exacerbate the “articling crisis”. I am confident that my friends in this Law Matters publication will address many of these arguments. I will also note, in passing, that I think many of these arguments identify significant problems with TWU’s program (though I will refrain from commenting on whether those problems are sufficient to preclude TWU’s accreditation). However, rather than discussing these arguments against TWU’s program, many of which I agree with, I will focus on a different argument against accrediting TWU’s program which I adamantly oppose, namely, that TWU’s law school will result in the licensing of lawyers with “bad” social views. It is myopic to regulate against social views held by a minority of practicing lawyers in Canada. Indeed, entrenching majoritarian views in the legal profession will likely undermine the cause of social progress, which I and many opponents of TWU are committed to.
While part of me wants to support the diversity of a Christian law school in an otherwise secular (and, at times, anti-theistic) academic landscape, TWU’s effective exclusion of gay students makes this aim of diversity ring hollow. But some opponents of TWU, too, fail to recognize the importance of diversity. While TWU disregards the value of gay law students, some of its opponents question the value of Christian lawyers (see e.g. the Canadian Common Law Program Approval Committee’s Report on TWU’s Proposed School of Law Program, at para 26). As a consequence, diversity and adversarial discourse – the cornerstones of liberalism – are often disregarded by both sides of the TWU debate. Whether for or against TWU’s law school, some advocates are short-sighted enough to believe that their opinions are infallible and, even worse, that their opinions should be uniformly held by members of the legal profession – a profession which recognizes that adversarial discourse is a critical mechanism for uncovering truth. It is against this backdrop that I oppose the regulation of the social views held by lawyers.
If we are going to truly commit to diversity within the legal profession, that must necessarily include an acceptance of social views different from our own. In other words, committing to pluralism in the legal profession requires a corresponding acceptance of diverse views being held by lawyers: the good, the bad, and the ugly. Indeed, it is those views which we find most repugnant that truly test our commitment to diversity.
Optimal discourse and social progress follow from committing to pluralism within the legal profession. On that basis, I oppose the regulation of the social views held by lawyers.
First, what is pluralism? By pluralism, I mean the unconditional acceptance of differing social and political views – a staunch affirmation of diversity. In my opinion, the benefits flowing from affirming pluralism within Canadian society are ubiquitous, from making new Canadians feel that their cultural values are respected during citizenship ceremonies, to ensuring that LGBTQ students feel safe and supported in school. However, the focus here will be on the specific benefits of pluralism in the legal profession.
Lawyers are often at the frontier of social change. Movements relating to civil rights, gay rights, and women’s rights are but a few examples of important social causes that were advanced, in part, through the legal system. A diverse legal profession is more sensitive to social change on the horizon, which a homogenous legal profession may fail to detect.
Some may claim that TWU educated lawyers would not assist in positive movements like those discussed above because the “social change” TWU lawyers would advocate for is regressive. But such a claim incorrectly assumes an ability to delineate “good” social views worth protecting and “bad” social views that should be discouraged. Indeed, social views that are now almost universally considered “good” (such as women’s suffrage) faced significant opposition when they were first debated in the courts. Accordingly, opposing TWU because it will produce lawyers with “bad” social views fails to recognize that society’s assessment of social views is often deeply flawed.
Indeed, history has repeatedly shown how progressive social change often confronts majoritarian opposition. Expanding women’s rights was a minority view in the 1920s, expanding civil rights for Blacks was a minority view in the 1950s, and expanding gay rights is, to this day, a hotly contested issue. In consequence, regulating against minority social views could have a devastating impact on the important advocacy work done on behalf of these groups, which, with the benefit of hindsight, resulted in important and positive social change.
The negative consequence of undermining important social movements demands the inclusion of lawyers with diverse social views. The legal system is a critical mechanism for social change, and silencing potentially meritorious social movements because the gut reaction of a majority of the legal profession opposes such movements is a myopic model for the evolution of social values in Canada. Without a legal community that is sympathetic to a variety of social views, lawyers may be unwilling to take on many important cases relating to certain causes. This is especially true in the context of public interest litigation because such litigation is often done on behalf of marginalized communities on a pro bono basis, and accordingly, is only possible through the generosity of lawyers who, presumably, share the social views of the clients they represent. As the Supreme Court explained in Carter v Canada (Attorney General), 2015 SCC 5 at para 140, public interest litigation can result in pro bono counsel “bear[ing] the majority of the financial burden associated with pursuing the claim”; a burden few would accept unless their personal interests aligned with the interests of the clients they represent.
The potential for filtering out positive social movements is, however, not the only flaw of regulating against social views held by a minority of lawyers. Even if certain “bad” views never ultimately become “good” views in the eyes of the majority, the inclusion of those “bad” views in legal discourse is still beneficial.
First, passionate advocates advancing “bad” social views force those with “good” social views to justify their position and substantiate the merit of their social views. This process of justification is critical because it filters out strongly-held majoritarian views that cannot stand up to thoughtful scrutiny (the weak opposition to legalizing gay marriage being a prime example of this). Alternatively, if the majority really does hold a “good” social view, then justifying that view in the face of criticism helps create a more nuanced understanding of why that social view is good rather than simply relying on the social view being supported by a majority under the status quo.
Second, even if advocates with “bad” social views cannot convince the majority to fully agree with their views, they may convince the majority to qualify their “good” social views making them “great” social views. For example, the type of consensus required to reconcile religious freedoms with equality rights is greatly undermined when we regulate against lawyers who hold certain religious views. Indeed, it is precisely those religious lawyers that often contribute to the adversarial discourse necessary to navigate complex rights-conflicts such as issues relating to conscientious objection – “a task fraught with complexity” (see: “Conscientious Objection to Creating Same-Sex Unions: An International Analysis” at 154).
In sum, all social views should co-exist within the legal profession, even those we despise. While I doubt a lawyer who thinks a minority group should have no rights will conduct advocacy I would consider beneficial, I also doubt my own abilities (and the abilities of a majority of the legal profession) to precisely define, at this moment, which social views will result in beneficial advocacy in the future. Moreover, the interaction of “good” and “bad” social views today is critical to both uncovering which views will be deemed “good” in the future and to qualifying “good” social views so that they become “great”. In consequence, all views should be welcome and the social views of lawyers should not be regulated.
But, to be clear, accepting the presence of lawyers with diverse social views does not mean that such views should be immune from criticism. As I explained above, it is precisely the criticism of differing views that produces the best discourse on social issues, and in turn, the most nuanced and thoughtful perspective on those social issues. If TWU educates future accredited lawyers and some of those lawyers have regressive social views I would welcome (and likely participate in) the criticism of those views. But I would, by that same token, welcome criticism by TWU educated lawyers of progressive views they disagree with. I do not support the presence of lawyers with certain regressive views in the legal profession because I agree with them. To the contrary, I support their presence because I disagree with them, and because engaging with that disagreement is central to developing the most nuanced conception of social issues. Similarly, a discussion about whether TWU’s law school should be accredited would be incomplete without hearing from advocates on both sides. Indeed, the varying perspectives provided for in this edition of Law Matters is precisely the kind of adversarial discourse that enables the thoughtful discussion of controversial issues which I am advocating for.
Along similar lines, my acceptance of lawyers with diverse social views does not mean that the expression of such views will necessarily be without consequence. For example, I can simultaneously support a legal profession with diverse views while also supporting limits on hate speech. Without wading too far into the controversies of hate speech laws, I will simply note that opposing hate speech laws based on free speech, without any consideration of the consequences unique to hate speech, oversimplifies the issue. Regardless, I need not oppose hate speech laws to argue for a diverse legal profession. Rather, I demand a diverse legal profession so that issues like hate speech can be subject to the open and passionate debate they deserve.
There are many problems with TWU’s law school, but the licensing of lawyers with “bad” social views is not one of them. If you think that a lawyer’s social views are undesirable, defeat them with logic and argument, not exclusion. Further, the individual holding a “bad” social view should be able to defend it, and preferably, with the resource of a legal education to assist them. If a social view really is obviously “bad”, you should not need the unfair advantage of a legal education to beat it.
Canadian courtrooms benefit every day from the virtues of adversarial discourse in the pursuit of truth. The same applies to the makeup of the legal profession. Legal discourse is stifled when it consists of a progressive echo chamber. In contrast, legal discourse is at its best when lawyers with differing views can challenge one another, force each other to justify their positions, and hopefully, convince each other to critically reflect on their views no matter their political stripe. That critical reflection cannot truly happen unless a diversity of views are present, especially those views we disagree with most.