ken's corner

2010-03-28T10:41:00.000-07:00

My apologies for taking so long since the last post. I have been unwell. More comments and some other topics are on their way.

Ken

Post-Legalism – More First Steps
Having talked about how the legal profession and a misguided rule of law have hindered the development of a just society, it is now time to explore how it could facilitate the changes necessary to achieve a post-legalist society and a more just society.

The two key words here are “responsibility” and “accountability”. Not just a blanket application of the two principles they hold, but an application to the good of society as a whole. This is much broader than it is presently applied under the law.

“Responsibility” in this sense transcends the representative’s duty to a client, making it instead a duty to society as a whole How many time have guilty parties been able to evade justice (as opposed to mere punishment) though the use of lawyers who hide or distort the facts? Even if it is one, this is far too many as the example (and often) the precedent is set for others to follow. As the example or precedent is stretched to more circumstances ad the ethical basis if society is further eroded.

In how many of these cases have legal representatives hidden facts, or made the inadmissible knowing that their client is actually guilty of the offence? This is difficult to say. However, there are enough transcripts showing distortion or missing facts to suggest that the number is more than just a few. If this does actually occur, as I am suggesting, what is the motivation of the legal representative?

The Rule of Law is the first, of course, because it allows this to happen!

The second, I would suggest is arrogance. An arrogance that sets the Rule of Law, and hence those who practice it, beyond the responsibility of “ordinary” society.

The third, by inference, is that those who can pay those who have the ability to distort and hide pay well enough to assuage the moral qualms of the representatives.

Is this all legal representatives? No, indeed it is not. This is the group of legal representatives for whom winning (and by inference the fees they receive) are more important than the social good. They may very well be a small minority who consciously act this way, but by their victories (and the precedent that may be set) force less responsible actions upon their colleagues who may be representing client for whom victory is actually justice.

Yet with each victory, each precedent, the moral and ethical basis of society is eroded further.

So what abut Accountability?

Unless a legal representative can actually be shown to contravene the Rule of Law, no action is undertaken, or sanction imposed for immoral or unethical behaviour.

What, though, if an action (or inaction) debases ethical and moral standards? Nothing happens, of course, as the Rule of Law ignores this foundation of just society. This is too indefinite, and is left to the politicians who cannot define it in many cases; and cannot agree on a definition if they individually complete the first step.

There is, however, a central requirement to reforming this system: legal representatives must be held accountable when it can be shown that their actions undermined the moral and ethical foundations of society.

It is essential that all of the facts of every case be brought into a court to be aired. If inconvenient facts are suppressed or withheld knowingly by a legal representative, then that representative is as culpable as the client.

And must be sanctioned in the same way.

This is probably an uncomfortable assertion for many. So be it: society must be protected and this s one way in which this may be achieved. The majority of legal representatives may actually be relieved that those who distort by using the Rule of Law may no longer do so.

The major first step by the legal profession is to look at itself and decide how best to protect society, not just those who live be exploiting it through the Rule of Law.

2009-04-07T00:35:00.000-07:00

Post-Legalism – First Steps

One of the greatest impediments to the development of a Post-Legalist business culture is the legal profession. The profession systematically eliminates ethics and morality from the mainstream of business; and life in general. This is not some dark conspiracy, but a procedural bias for the Rule of Law that removes responsibility from its practitioners as long as the Rule (ie. Law) is applied in its narrowest moral context. Without any obvious intent on the part of the Law (but not necessarily on the part of its practitioners), the ethical and moral is ignored in favour of the rule, which is arguable more simply.

It is obvious that, despite their training, some lawyers do recognise what is missing from the Law, but can do little about it. The profession as a system, and the bodies that are set up to ensure probity, realise that any attempt to introduce elements of justice, morality and socially ethical behaviour will undermine the relative structural simplicity they presently enjoy. This simplicity can be used to thwart the development of social responsibility and accountability.

So where should we start with this post-Legalist society?

There are actually two ways in which this might be achieved. The first is to ensure that responsibility and accountability fall not just on the lawyer’s client, but also on the representative lawyer where this is appropriate.

Too often the outcome of a legal action is distorted because pertinent evidence is excluded, either through legal stratagem or through non-disclosure. The legal system must allow all pertinent material (or material that can be shown to be pertinent) to be presented. No longer must it allow the suppression of pertinent evidence through procedural means. If material is pertinent, morality demands that it be seen and heard.

If the material is obtained illegitimately or incorrectly, that should not alter its role in any legal proceedings. The person against whom the material is obtained should be judged in its light. The person who obtained the material incorrectly should then also be judged on the basis of actions or inaction.

While two wrongs do not make a right, neither do they eradicate a person’s culpability. In similar vein, the illegitimate obtaining of evidence or pertinent material does not make it disappear. Both parties must be judged properly on the basis of their actions.

Such a change would place the responsibility for hiding or camouflaging a client’s culpability or responsibility not only on that client, but also on the lawyer. Defending a client in a way that is socially unsound spreads the culpability to the representative. A client must not be defended in a way calculated to harm the wider interests of the society.

In my next entry I will expand on this idea and add the contention that, in any form of legal action or process, lawyers and their clients must demonstrate the moral and ethical basis for the case or proposal they are making.

2009-02-23T07:32:00.000-08:00

Capitalism is Necessary

Despite the problems being experienced by the world economy, these should not be seen as the death knell for Capitalism. Indeed, any objective look at history and the process of economic growth and develop over a number of centuries shows that Capitalism has been superior to any alternative means of production. Capitalism is the most efficient means of matching resources, means and desires for the greatest number of people. No command or other directed economy has come close to what Capitalism has achieved, and what it will continue to achieve.

So why does Capitalism appear to have failed so badly. Inherent problems; faulty direction, or some other cause?

The problem is not with capitalism, but within the social milieu within which it operates; the way in which the human participants behave, and are allowed to behave. The way in which society is prepared to accept or direct the actions of capitalists, and those who work for them.

It was easy to see Capitalism as a rapacious beast when only a few were really involved and shared the benefits of it. However, in the past decades there has grown a social acceptance – indeed envy of – accumulation beyond the ability of one person to spend or enjoy adequately. This is little different from the time of the “Robber Barons”, or of the worst excesses of the Industrial Revolution except that now many more share the acceptance of this type of behaviour. Those who, even in the 1960s and the 1970s would have criticised this accumulation have been co-opted as part of the social process that drives it.

They have become shareholders in a process where shareholders’ interests have become paramount; where the interests of workers and non-capitalists have joined those of capitalists in the rapid accumulation of wealth. Not only have these interests been joined, but there has grown up an acceptance and almost encouragement for doing whatever is needed to be done to achieve increasingly high returns.

What those who joined the process did not realise was that they would win as long as the markets were advancing, but would be the first to lose when they retreat. This is what has happened now. The problem has not been Capitalism, but the social acceptance of unbridled wealth accumulation without regard to the future. Society simply forgot that accumulation for the few means loss for the many when things go wrong.

Capitalism will survive, but society must demand more of it: that the accumulation of wealth must be not just by the few, but sustainable for the many.

The next phase of Capitalism must include social responsibility and ethical decision making for the benefit of society as a whole. It is easy to say the words, but much more difficult to put them into process, and hence practice.

The responsibility falls on business and the legal profession to bring this about internally before well-meaning but muddling politicians impose an onerous load of regulation that increases the number of loopholes and avenues for the unethical and the unscrupulous to again lay a foundation for bringing the world economy to its knees and harming vast numbers of innocent people in the process.

The form and methods of this responsibility will be explored in coming blogs.

2009-02-17T05:26:00.001-08:00

The First Steps to a New Society – Identifying the Problem

As we look at new ways of doing business, of finding a just as well as a legal society, we can see some virtues that have been undermined by legalism. By the overly-protective and malleable legalism that has brought the world economy to its present state: Responsibility and Accountability.

The system of Law in most countries is designed to assign responsibility for misdeed. However, the best it has been able to achieve is to set boundaries that are tested and stretched progressively in legal proceedings. As various parties attend court they are generally looking to prove:

1. They are not the offenders that the charges suggest they are.

In this, the law works on the evidence as and when it is presented. As I have commented previously, the evidence that is presented will have been filtered through the Legalist process and may preclude the ability of the courts to render a just decision.

2. The offence with which they have been charged is not actually an offence at all.

While the first point is most common in criminal cases, this second one tends to apply in a number of areas where courts may render a legal decision in a case where their competence is not complete; or even unjustified.

Many such cases occur in the medical and business fields where the outcome of action or inaction affects or harms more than one person. This has lately been the case in financial services where many people have been hurt, but prosecution seems a distant possibility.

The effect may be felt by a large number of people who have no obvious interest, or where cause and effect cannot be related to a single act by an individual, as would normally be the case in a criminal trial.

In this latter case, the court is often asked to decide on responsibility and accountability across a group of people; but the assign blame only to one or two people within that group. Such cases generally revolve around one of two issues:

1. There is no offence because the defendant took all possible steps to remain within the “letter” of the Law, and is not culpable because of a minor infringement of the “spirit”.

2. Although the defendant may have committed a technical offence, this is now general practice within the professional area. The Law has simply been left behind by reality.

In this second case, as would be argued by almost all of those bankers and financial experts responsible for the present economic problems, a “guilty” verdict will give rise to appeals at every level of the court system. The defence will persist as long as the3 client can pay, and will continue to push the case until it receives a favourable verdict.

The prosecution, on the other hand, will rarely be so persistent in its pursuit of the defendant, even when public support for their action is strong. The result is that the original offence can no longer be prosecuted through legal precedent; and a new standard of conduct or proof has been created. The next prosecution in this area begins the process again.

Each new legal definition further undermines the responsibility and accountability that was intended in the definition of the original offence.

Why does this happen? It happens because there is a profession whose objective is to attain its clients’ wants, regardless of the more general social good.

Here is the heart of legalism, and one of the places where the change process must begin.

2009-01-22T11:17:00.000-08:00

Law and Justice

Wordnet.princeton gives one of the definitions of Law as:

“….a rule or body of rules or conduct inherent in human nature and essential to the binding of human society….”

However, if we look more critically at the statement, we find some implicit assumptions that undermine its validity:

Why is such conduct “….inherent in human nature….”, and
What gives it the force to “….bind human society….”?

Indeed, if we look more generally at how Law is developed and used, a better definition would be:

“….a rule or body of rules of conduct….” chosen by a community or its leaders to meet contemporary or perceived need of that community.

Basically it is a code of behaviour that defines what the society sees as transgressions against it; and applies sanctions to those who are seen to break the agreed code. It is about misdeeds and sanctions that define areas where a community will not accept individual or group behaviour. Unlike the Princeton definition, it “binds” society (the community) by excluding and punishing specified misbehaviour.

This actually does the very opposite of bind, because it does not offer any reinforcement of positive behaviour, preferring instead only to highlight and punish the negative. Society has tried to move on from a more autocratic (and sometimes idiosyncratic) from of Law to one in which the identification of the negative are simple; but the offered punishment is wrapped in layers of prevarication and protection. This has largely decoupled that cause-effect of punishment for a misdeed.

As the Law has become progressively more codified and intricate, the emphasis falls less on a legal system and move on to a “justice” system. Indeed the more convoluted the administration of law, the more wiling its participants are to take the mantle of justice.

If the question is posed, “Is the law just (is it justice?), the answer becomes quite evidently, “no!”

Justice (“….the quality of being just or fair….”, wordnet.princeton) is becoming more alienated from law as time passes. As somebody (I do not remember who) once said, “…. the point of the practice of law is to convince a curt that your version of events is the more credible….” Justice requires that your accepted version properly portrays what happened, and thus provides the basis for correct punishment or restitution.

The needs of justice require that not only the limits to behaviour be specified, as the Law does, but that the patterns of correct and acceptable behaviour should be identified within those limits. Unfortunately, such patterns are absent from the code or practice of Law; and are rarely articulated from within society.

The further this continues, the less just that Law becomes. Indeed, the practice of Law erodes even more rapidly existing patterns of behaviour, and inhibits the formation of new patterns for an “orderly” society. Let us take some examples:

A policeman finds evidence of a crime within a car at the scene of an accident, and proceeds to arrest the driver. The charges against the driver are dismissed due to “lack of evidence” because of an “illegal search”.

Law – yes; justice – no.

A man is accused of a violent crime ad his lawyer suggests that the victim had previously engaged in “risky” behaviour (although not on this occasion). He is acquitted.

Law – yes; justice – how do we know as the accusation was not tested properly?

Law is not justice; although justice is good law.

The problem with many societies, especially many Western societies, is that Law has supplanted justice. With passing time, the “rule of law” has stretched the boundaries of misbehaviour; and has eliminated the societal patterns that breed justice.

In no area is this more evident than in the actions of individuals and companies that led to the present “financial crisis”. So many looked to the limits of legality to make money; and damaged the interests of society as a whole. Was it legal – yes; as it just – no, definitely not!

The time has come, and we have been given the opportunity, to create a more just society by reining in Law and creating the patterns of justice. The opportunity for this is short; or law will again dominate and distort society.

2009-01-11T04:47:00.000-08:00

Post-Capitalism? I think not!

The general enthusiasm for talking about the various government economic bail-outs as the advent of Post-Capitalism appears to have receded; and now it appears mainly in more specialised political, philosophic and ideological debate. While this is not unusual, nor is it undesirable, it is essential to keep looking at what happened in the immediate past, and at how such future events may be moderated or avoided.

For, without basic changes to the ways in which politics and business operate, these will be repeated, to the cost of those who can least afford it; and who are not responsible.

Capitalism needs a new basis. It needs a way to identify the moral and ethical aspects of business and its planning, and to withdraw from constantly seeking to push the envelope of law into behaviour that benefits only a few and damages the many.

Business needs a new way to look at plans and opportunities so that the societal and individual consequences are taken into consideration from the beginning. Then they must be included in all developments in proving that business operations are ethical and moral as part of the overall approval process.

Politics and the Law need to change to achieve this. The unaccountable need to be held accountable early in the process, not when things have gone badly wrong; as with the present financial crisis.

Watch this space as I develop my suggestions to achieve these objectives.

2008-12-22T07:24:00.000-08:00

Post-Capitalism or Post-Legalism?

There was an interesting discussion on the BBC the other evening about the possible shape of the post-Capitalist world once the present financial crisis is over. It was interesting not that it really offered any sense of a true difference but that it inadvertently brought in elements of a post-Legalist society rather than the post-Capitalist.

It pointed out that the substantial public ownership of private assets brought about by the credit crunch and subsequent bail-outs have put a new master in charge of these capitalist entities. Many banks and large industrial companies now owe their survival to the public purse, which offers a new impetus to social responsibility in business.

Very post-capitalist as it sounds, this should actually be the basis for a new paradigm in business: Post-Legalism.

While politicians across the globe are looking to new levels of regulation to ensure that situations such as the Sub-Prime melt-down are not allowed to happen, they are overlooking a major factor in this and almost all other bubble-and-burst situations since South Sea Bubble (1720). Everything that was done in these and other situations was legal as it was not specifically proscribed under law.

This made for an environment where, providing it was not illegal, the Law and the judiciary would protect the businessperson’s right to carry out their activities even when they were morally or ethically reprehensible. Indeed, tightening the law and regulations in response to any financial or business crisis really just changes the size and shape of the market where they apply. At no time do they truly reflect what is good, ethical, or moral business practice.

Regulation is simply a set of limits that the sharp operator can test in a court of law, and experience of the legal systems around the world, especially in the US, suggests that these limits become more porous with time. Why? Mainly because the law is set by precedent, which becomes the limit in each area; and many cases are mounted either to test the limit, or to prove that somebody has not transgressed the established limits. In either case, the law is very slow to act, and the regulations on which prosecutions are mounted make proving transgressions very difficult. There is little incentive for people to hold to both the letter and the spirit of the law in this instance.

So the law is ineffective in moderating the excesses in people’s behaviour; and in the business sense actually encourages, if not abets, those who would undermine it.

So the sense in which politicians are calling for new laws and new regulations actually misses the point as to what has happened so many times in the past, and what will continue to happen into the future if nothing changes. What is needed is not more law, but a greater weight for the ethical and moral considerations that allow a society to prosper.

So how do we achieve this?

Any starting point for this debate will seem either legally onerous, in which the defendant has to prove (beyond reasonable doubt) in a suitable forum that the actions undertaken were ethical and/or moral. Or indefensibly weak by specifying in regulations and laws their ethical and moral “spirit” and placing the responsibility on a court or similar authority to assess whether actions have met these standards.

Yet this debate must occur. Until civil society can find a way to ensure that decisions are made for the good of society (and all of its members) the legalist tradition will continue to throw up the unscrupulous and will perpetuate the string of failures that have long been with society, and which will continue to hurt the innocent and the powerless.

This is not revolution, in any sense, but a return of individual responsibility for actions and consequences that is so absent today.

Introduction

2008-12-22T02:29:00.000-08:00

This is my first blog. I intend to explore issues dealing with Economics, Ethics and Morality in business, and how to make a better and more sustainable society.

I will not be doing this alone, and I invite like-minded people to contribute to the debate.

I look forward to many, many discussions