Shysters be Gone! part II

February 11th, 2008 Posted in Business Law, Legal Explorations

We ended the first post in this series with the question, “Whence comes the ethical imperative, ‘Don’t be a Shyster!’?”

Now we will get into it:

I would like to draw an ephemeral line between moral and ethical laws - just follow me for a minute (and I will try to be specific in how I draw a difference between “moral” and “ethical”, at least for the purposes of this enquiry) - and take a look at the social goal that is promulgated by mercantile law. The division I am going to attempt will be a very small part of this particular enquiry and if you were to accuse me of being philosophically expedient, aloof even, on such a fundamental issue, I would be the first to agree.

You see, I only want to make some moral versus ethical distinction to avoid the debate of whether mercantile laws are natural law or some other brand ostensibly the result of the artifice of man, such as positive law. Instead, I will start by telling you what I think the difference is between morals and ethics and how this might dichotomize law. Then, I plan to pretend that the ephemeral line I’ve drawn is a giant opaque wall, on one side of which I will make an attempt to show that mercantile law is founded upon some ethicist imperative of neighbourliness.

I would like now to set out some kind of framework that will locate the discussion. First, let’s do away with “red tape” bureaucratic law - the regulatory statutes that are more about standardizing paperwork than normalizing social behaviour. In doing away with them, including corporations law, securities law, laws dealing with land title registration, we are left with social laws founded upon ethical and moral imperatives. These are laws that govern our interactions with each other.

But, “Wait!” you say. Corporations, Securities, and Land Title laws create regulations in order to mandate notice and other features that protect investors (and other dealing parties), all of which is an ethical imperative.

True enough. In fact, the ethical imperative underlying the bureaucratic/regulatory laws, which in turn affect the business relationships between the parties concerned, is the same one to which I am leading in this discussion. Why? Because laws that have become, by reputation, regulatory miasmas of red tape, have at their hearts mercantile law as well.

(A notable exception to this is the patchwork real property schema in Canada, cobbled together from aristocratic entitlements and free enterprise acquisition rights. Fodder for another discussion perhaps? “What the Merchant inherits from the Monarch”? Any thoughts on the subject?)

We are trying, roughly, to separate moral law from ethical law, with the goal of discovering the imperative for mercantile law.

Let’s take a (very brief) look at criminal law, the most basic tenets espoused by which are the darlings of moralists, naturalists, and those who do not believe in the separation of church and state. These most fundamental of criminal laws are the ones against violence - the laws that are not concerned with the medium-sized pictures of societies and communities; but they read the biggest picture (the species itself) into the smallest (the individual).

Thou shalt not kill.

Murder is the most fundamentally destructive act we know. Its abstraction (and the degrees ascribed to that abstraction) fuels the rest of the anti-violence criminal laws, such as those against assault, rape, kidnapping, etc. These are the transgressions that destroy the human being or the basic capacity to perpetuate the species.

Beyond these core criminal laws are those which are actually the criminalisation of anti-social laws. These are laws that use the blunt and powerful hammer of the criminal justice system - the empowerment of the state to infringe the security of its citizens - to correct, restrain, and punish various types of antisocial behaviour.

Let’s identify two such types: those which harm the integrity of society, potentially leading to its collapse; and those which alter the dynamic of society, potentially changing into a different one perceived as undesirable according to present goals and values.

In the next entry, we’ll look at how the restraint of these two types of antisocial behaviour leads to different moral and ethical imperative, and we will try to derive the Law Merchant and Contract Law from the ethical imperative. I hope, in a fourth instalment, to compare this ostensibly ethical imperative to some kind of ground rule on ethics, and see if it passes muster or is laden will ulterior motivations.