Providing moral guidance

I’ve often written about the relationship between ethical principles, the law and the practice of law. When it comes to the law, I’ve criticized it for sometimes being morally tone deaf. What about bankruptcy rules, for example, that prefer dubious company creditors to retirees relying on a company pension? I’ve criticized lawyers for not following community ethical standards in their work. What about corporate and tax lawyers who don’t care about the effects on distributive justice of what they do? (Much of their work just helps the rich get richer.) Or what about business lawyers who blithely help investment bankers develop schemes that lead to foreseeable economic catastrophes such as the 2008 market collapse?

I know a lot of lawyers don’t agree with my point of view. That’s been made abundantly clear. Emails of outrage have been flooding my inbox for years.

But let’s all take comfort from this: The relationship between community ethical standards and the law is a two-way street. Community standards should inform the law and legal practice, but the reverse is also true. There are things the law and lawyers can teach non-lawyers. The law and legal practice offer a cornucopia of ethical standards. You just have to look for them.

The Globe and Mail newspaper touched on this possibility in an interesting editorial on New Year’s Eve 2018. The editorial referred to the legal concept of “the reasonable person,” someone who thinks clearly and, most of the time, is honest and sensible. The reasonable person does not easily give in to bad impulses such as anger, resentment, pettiness and knee-jerk dismissal of different points of view. This legal idea — the concept of a “reasonable person” — offers a touchstone for general conduct. And, indeed, in its editorial, the Globe urged politicians to use the reasonable person idea as a guide for their behaviour in these troubled times.

More precise legal concepts might be even more helpful to policy-makers and politicians. Here’s an example. Like many Canadians, I’ve been fretting over Canada’s 2014 contract with Saudi Arabia to supply that country with $15 billion worth of light armoured vehicles. The Canadian government has described the contract as “highly confidential” and the public has never been told its terms. Many think that we should not be doing business with the Saudis, and particularly not by selling military vehicles that could be used against that country’s civilian population by a repressive government. Prime Minister Justin Trudeau seems to have taken the position that, like it or not, Canada cannot get out of the Saudi contract without, at the very least, paying a huge and damaging penalty. He says he’s troubled by the arrangement — let’s take him at his word — but maintains that, as a matter of law, we are stuck with it. Pacta sunt servanda, as lawyers like to say. Agreements must be kept.

But take another look, Trudeau. Maybe the law can help you do the right thing. We don’t know what law governs the Saudi contract’s interpretation and application because we haven’t seen its terms. But there’s a basic principle in our legal system, and in many others, that says if the fundamental circumstances underlying a contract — particularly a long-term or “relational” contract — change in an unforeseen way, the contract can be terminated. The binding force of a promise can be trumped by principles of justice, good faith and equity. Many related doctrines buttress this rule — mistake, impossibility, force majeure, fundamental breach, frustration, excessive onerousness, etc.

So, the prime minister can decide, with good reason, that things are not as they were when the contract was signed in 2014. Since then the Saudis have intervened militarily in Yemen, helping create a humanitarian disaster of gigantic proportions that has appalled the world. Since then, journalist Jamal Kashoggi has been brutally murdered for speaking out against the Saudi regime. Since then, relations between Canada and Saudi Arabia have deteriorated significantly, with Canada’s Minister of Foreign Affairs Chrystia Freeland publicly criticizing the Saudi human rights record. The prime minister might easily conclude that things have changed substantially since 2014. The basic premises underlying the original contract have been undermined, if not destroyed. It is reasonable, a defensible legal conclusion, to say that the contract is over.

How much can legal principles guide politicians and policy-makers? Some law is not helpful in this way, particularly modern and precise statutory law that addresses a very particular situation in unambiguous terms. But much law is not like this. The common law is fluid, constantly being reinterpreted and developed as the world mutates, new problems arise and thinking about issues becomes more sophisticated or changes. For example, the meaning of “agreement” is much more conditional, subtle and open to debate than it once was. Vague equitable principles are more powerful than ever. In some important cases, statutory law is not clear; its meaning is fought over and changes over time. Constitutional law concepts — “fundamental freedoms,” for example — can be vague and commodious and offer a battlefield for ideas.

You might say that the sheer volume and messiness of the law precludes its use as a general ethical guide. There just isn’t enough clarity. But a better way of looking at it is that the law is a rich toolbox, a varied collection of ideas and techniques with a strong ethical basis, developed over a long period of time, that can be used to analyze, understand and solve dilemmas that we face. The law embodies centuries of collective wisdom and offers flexible principles that can help with modern problems.

As the law and lawyers should take cognizance of community ethical standards, so the community should look to the ethical storehouse of the law. The law and lawyers do not have to be the villains of the piece. They can be wise polestars for our time.

Philip Slayton was the dean of law at the University of Western Ontario, a Bay Street lawyer and is now a best-selling author.