Shysters be Gone, part III

February 21st, 2008 Posted in Business Law, Legal Explorations

In part II, I identified two types of antisocial behaviour which we attempt to prevent, restrain, correct, punish, etc., with law: “those which harm the integrity of society, potentially leading to its collapse; and those which alter the dynamic of society, potentially changing it into a different one perceived as undesirable according to present goals and values.”

In an effort to curb these, we develop public policy, from which flow laws.

Well, not exactly. In parallel with policy are imperatives, both ethical and moral, which provide the force behind the laws.

In other words, we identify our fears – undesirable impact on the integrity or dynamic of society – and then we get specific. We state our intentions, reasons, and accountability with policy, and proclaim our ethics – our rules, the “musts” – with imperatives. We wrap the imperatives in the policies and create law.

We do this for each area of social law (i.e. policy-driven as opposed to regulatory law)

We have a simple equation:

Policy + Imperative = Law.

In criminal law, our policy is not to destroy, not to disintegrate society. Within this, we envelope the classical moral imperatives, Thou shalt not kill, Thou shalt not steal, etc. From the imperatives checked against the policy we derive the nuanced laws which criminalize and seek to deter these behaviours. Without the policy wrapper of deterrence, we would have only the imperative and a legal system that resembled a police state.

In tort law, we similarly have both policy and imperative. The imperative is the old “Golden Rule,” as said by the sage Hillel, “What is hateful to you, do not do to your fellow.” We create laws dealing with intentional torts and with negligence. And the policy that is coupled with the imperative to produce the law? Look no further than the Charter’s section seven for its parallel in public law: Our society’s desirable dynamic is one in which personal security is assumed and guaranteed to some minimum standard.

Criminal law seeks to maintain the integrity of society. Tort law seeks to fill in the gaps there where criminal cannot, by deterring some destructive behaviour; but it largely works to deter behaviours that, while not directly destructive, are conducive to unwelcome tectonic shifts in the dynamics of society, such as the replacement of security with paranoia and fear.

From tort we derive a code of behaviour based upon an awareness of those with whom we build a community. Eventually, once we codify and normalize the behaviours that evolve within that community and that lead to its persistence, we propagate the community through code and develop a society. Tort law tells us to be aware of each other and to be good neighbours – it holds up a mirror to our collective and shows us the very fact that we are neighbours.

From our recognition of the most basic scarcities – food and land – we normalize property. We also normalize the imperative, Thou shalt not covet, turning it from a moral into an ethic. It becomes a standard, tautologically propagating itself through its normativity. Someone may have more than you, and while you are free to desire and pursue an equivalent – or even greater – parcel for yourself, you are not free to crave (to the point of antisocial covetousness, in the sense of specific antisocial behaviour) the specific parcel possessed by the former. But as there is grounding in the principle of scarcity, as primeval a principle as the survival and propagation principles underlying criminal and tort law, property law may be considered only slightly removed from those more-or-less natural laws.

It is when we derive a body of law not grounded in the relationship between neighbours and primitive principles such as scarcity, survival, and propagation, but instead grounded in an abstraction of the realization that we are in fact neighbours and relating to each other, independent of the primitive principles, that we get the more abstract rules of neighbourliness: family law, intellectual property law, contract law, etc. Each of these imposes a positive duty towards social behaviour.

Family law tells us to take care of each other in especial ways when we create emotional relationships that establish social sub-units within the community. “Take care of each other” is the imperative; the policy is based on the zeitgeist of society’s dynamic.

Intellectual property law tells us initially not to rob each other of non-scarce non-objects. Due to the lack of scarcity of these “objects”, and the inability to naturally define them, it is not theft in the pure sense that is being prohibited. Thus, in fact, intellectual property law tells us to give credit where credit is due, in whatever form that credit takes, from acknowledgment to royalty checks to licensing agreements. The imperative is to give credit; the policy is a hybrid of pro-innovation incentives and a sense of creators’ rights.

Contract law combines several other ideas together: Beginning with the basic social imperative of tort law, we recognize the intentional establishment of social relationships based on non-emotional factors, such as finance, business, service, trade, mercantilism, etc. These are established through contract. We infuse these relationships with tort law’s neighbourliness principle altered thus: The Golden Rule becomes Don’t be a Shyster, which is really the positive obligation to ensure a certain fairness in these relationships. The instruction not to take advantage – to an unethical level, anyway – of position or dominance or knowledge is in fact a positive obligation to ensure fairness.

We return now to our earlier equation:

Policy + Imperative = Law

We have the law. The Law of Contract is found in certain doctrines such as aggregatio mentium (the meeting of the minds), and the rules of offer and acceptance, among others. It is underlain by the policy that fair business dealing is advantageous to mercantile progress in markets and market behaviours that we consider beneficial.

What is the imperative then, the normalized behaviour, the ethic that powers this policy into law?

Don’t be a shyster!

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