When people have points of reference that are humanizing, that demystifies difference. —Laverne Cox
The pandemic has intensified the daily battle of subsistence for hundreds of millions of our fellow humans. For the more fortunate, it has provided an opportunity to reflect, reboot, and rebalance their lives. What is our purpose? Where do we live and work? How do we achieve balance that fulfills life’s purpose?
The search for purpose has contributed to “The Great Resignation.” A record number of American workers have voluntarily left their jobs. There are many reasons, of course, and a lack of purpose—especially among Millennials and Gen Z’s—tops the list. The younger generations tend to view life more holistically and do not compartmentalize work/life/family the way their parents did. Purpose is not confined to a paycheck; it is also a voice, a team, an opportunity to collaborate, learn, grow, experiment, understand the why of work, and contribute to the common good. This is stakeholder capitalism applied to the individual.
The speed, scale, and effects of change are challenging the limits of human adaptability. The pandemic has accelerated and intensified an already perfect storm of socioeconomic factors that include: digital transformation, technological advances, big data, social/political fragmentation, and climate change. These and other convergent forces are transforming our lives, business, society, and the planet. Then came the pandemic.
Covid-19 has accelerated change and exposed the fragility of human networks— individual, social, business, supply chain, societal, and environmental. It has ravaged physical and emotional health, elevated uncertainty, upended routine, limited human contact, and elevated isolation. The pandemic has been a painful reminder that life is not a solitary pursuit and interpersonal contact is essential to feeling—and being— human.
The pandemic has also contributed to dramatic demographic shifts produced by technological advances that support remote working, especially in knowledge-based industries. People are moving to where they want to live, not where their job is. They are also moving across industries. Digital transformation has accelerated dramatically during Covid-19, further blurring demarcation lines that once separated industries. Skilled workers, especially those that possess agile minds, are learners-for-life, possess advanced “people skills” (EQ), and can “connect the dots” have more choices than ever before. Many have migrated to work that provides an elevated sense of purpose, not necessarily accompanied by a bigger paycheck. Purpose, balance, and understanding “the why” of work are elements of “individual stakeholder capitalism.”
It is no coincidence that stakeholder capitalism and the individual version of it are converging. Business sustainability—and profit—is promoted by a clearly-articulated, widely embraced statement of purpose and mission that commits to doing well by doing good. The key ingredients are: a humane approach not only to the workforce but also customers, communities, society, and the environment; providing value and an outstanding end-to-end customer experience; contributing to the communities business operates in and impacts; committing to diversity, equity, and inclusion (DEI) as well as environmental, social, and governance sustainability and ethical impact (ESG); and creating a culture that respects the individual and advances the collective good.
The 2019 Business Roundtable Statement, signed by 181 CEO’s of leading companies, is a blueprint for the “Modern Standard For Corporate Responsibility.” It taps into the vein of the common good, injecting purpose; diversity, equity and inclusion; sustainability; social responsibility; and common good governance into business. This prescription for corporate health positively impacts a wide group of stakeholders, enabling business to do well by doing good. It has proven to be a magnet for talent, customers, and investors—a corporate virtuous circle.
“We Have Forgotten What Law Is For”
How has the legal function responded to individual and societal needs during this time of change, crisis, and suffering? Ralph S. Tyler Jr., a Harvard constitutional law professor, gives it a failing grade in a recent New York Times Opinion piece. “Something has gone badly wrong: It is unclear, in America in 2022, what the point of law is, what higher ends it should strive to attain. We have forgotten what law is for.”
What’s missing from law today, Tyler argues, is an emphasis on the common good, a core precept of American legal tradition whose roots trace back to the nation’s founding. The “general welfare,” Tyler notes, appears in both the preamble to the Constitution and its text. He maintains the common good has been replaced by intractable, competing ideologies and factionalism. Even the Supreme Court, in his view, has succumbed to these social, political, ideological, and economic societal fissures.
There is ample evidence to support the contention that we have forgotten what law is for. Big Law may be celebrating its 2021 record profits, but the rule of law is on the precipice; a small fraction of the population can afford legal services even when they are desperately needed; and self-regulation has conflated legal practice with the business of delivering accessible, affordable, efficient, and fit-for purpose legal services, products and assistance.
These issues are not endemic to the US legal system. The challenges and solutions to law’s wider malaise share more in common than their jurisdictional practice differences. The digital legal function is a profession subsumed within a global industry and should be owned, operated, and regulated as such. Law should follow the lead of business by crafting and collectively pledging to adopt a “Modern Standard For Legal Responsibility.” The cornerstone of the document should be a commitment to forge a more humane legal function, one that is committed not only to insure the well-being of its workforce but also its clients/customers, society, and the environment.
What steps can be taken to humanize law—to make it more accessible, relatable, humane, and less arcane, remote, and forbidding? Here is a starter list.
1. Law is about human interaction—preserving social order and advancing cohesion. People are the essence of law’s purpose. A legal system that is accessible and affordable only to a small segment of the population cannot foster respect for the rule of law, nor can it promote a willingness to compromise, a key ingredient of the common good.
2. Modern societies rely upon law to resolve conflict, maintain order, protect and defend rights, and enforce responsibilities. Law is the societal cement that binds cracks and supports the common good. Law must itself be humane and set an example for humanity; its core purpose is to create a framework for orderly, peaceful human co-existence.
3. Law is a function, part of a larger societal whole. The legal function’s purpose is derived from and proscribed by that larger societal whole, not internally. Many in the legal industry have lost sight of that.
4. A humane, compassionate, equitable, and diverse legal function is essential to building public trust, compromise, and advancing the common good. Law must reclaim its humanity internally—within its ecosystem—and externally—in its interaction with customers/clients and society-at-large.
5. There are a legion of ways that the legal function can better align itself internally and with those for whom its purpose is to serve. Here is a representative sampling of ways that law can advance alignment and promote the common good. The crux is humanizing the legal function’s purpose and applying it to everyone and everything it impacts—and should touch.
o creating a culture and environment that is welcoming to a diverse workforce;
o creating a legal culture whose purpose is to serve people and to solve problems;
o building a legal function whose diversity more closely resembles the society it serves and the complexities of its challenges;
o stressing the importance of and honing people skills throughout one’s career;
o focusing on well-being, upskilling, learning for life, and other traits required to meet the needs of a digitally transforming society;
o jettisoning the antiquated “lawyers and ‘non-lawyers’” mindset and replacing it with a team approach to problem solving that does not relegate non-licensed attorneys or younger generations to a lesser status;
o using language that is clear, concise, and designed to “speak the language of individuals, business, and society”—not “legalese.” The goal of language is to communicate and create community. Legal language has the opposite effect.
o Reimagining legal education and training so that it is more affordable, flexible, people-oriented, accountable, outcome-driven, diverse (student body and faculty),and produces graduates that not only know the rudiments of doctrinal law and can “think like a lawyer” but also possess an understanding of the marketplace and the needs of the clients/customers and society they serve.
o Legal regulation must be humanized. Crispin Passmore, a legal regulatory authority and friend explains how: “If we are to humanize law, we need to make it accessible and relevant, ensuring that it evolves with the society and economy it serves. Only independent, genuinely public interest regulation can do that.”
o The legal function’s purpose must be clearly articulated and adopted throughout its ecosystem. It is a “legal mosaic” and must function as an integrated whole with a clear sense of purpose, clarity, cohesion, and compassion, .
o Courts must be humanized, because the judicial process is skewed against individuals. A 2020 Pew Charitable Trusts report highlighted the desperate need for reform. It found that at least four million Americans are sued over consumer debt each year. More than 90% lack counsel, and in excess of 70% of cases result in default judgments against the defendant. When individuals have a legal right to assert, they are, likewise, highly unlikely to retain counsel. This is not a humane, equitable, or sustainable legal system.
o The legal function can learn a great deal from the digital transformation of business; it need not reinvent the wheel. Law should focus less on “innovation” and more on alignment within its ecosystem and with society-at-large. Business has created a roadmap that can be adapted—and followed—by the legal function.
o Knowledge, skills, and judgment are core elements of the legal function. Technology, data, process, and other tools enable people to leverage and scale legal delivery—to make it more predictive, proactive, accessible, affordable, and fast. But without empathy, collaboration, and humanity, the legal function cannot earn the trust and respect of its workforce or those it serves. That’s why humanization is the lynchpin of law’s ability to restore public trust and a return to the common good.
The legal industry has been largely dismissive of “soft skills” and “humanizing law.” One of the paradoxes of our time is that the ascendency of automation, artificial intelligence, blockchain, Big Data, and other technological platforms has elevated, not diminished, the importance of humanity. It is not only what distinguishes us from machines but it also enables us to apply our humanity to machines. The legal function will play an important role in this process but must first take a hard look at itself.
Humanization in law is a critically important, overlooked, and timely issue. The Liquid Legal Institute (LLI), a German-based interdisciplinary platform promoting collaboration, simplification, and new ways to improve the legal industry, will soon be publishing, “Humanization & The Law,” a book devoted to this topic. It promises to be well worth the read and a jumping-off point for further attention and exploration.