Trust and law. The optimal relationship between the two is an ethical conundrum at the heart of legal practice. How much can we trust each other? How much law do we need? Do unnecessary legal rules replace trust to the detriment of a truly civil society? Does increasing legalization — turning every problem, no matter what it is really about, into a legal issue — damage the fabric of our community?
When I practised law, I spent a lot of time drawing up contracts for my clients and reviewing draft agreements concocted by lawyers for the other side. There were endless meetings at which every word of lengthy documents was anxiously analyzed and fought over by hyper-caffeinated attorneys. Clients, eager to get on with drilling for oil or developing real estate, often lost patience with this process, and gave instructions to “speed it up” and “get on with the job.” You had to be tough with them, resolute, adamant, brook no nonsense, explain how important every word was, and how they had to be protected eight ways to Sunday from the unscrupulous folks across the table, and how this took time, effort, and skill (yours), damn the billable hours, full steam ahead.
Remember, you’d tell them, a well-drafted agreement is your best protection. Don’t forget, you can’t trust anyone.
Then, one sunny day, I retired from legal practice. After messing about for a bit, I decided to become an author. Why not? (Although, it’s easier said than done: as one literary friend said to me, “it’s hard to write even a bad book.”) In due course, a big publishing house presented me with a book contract. Without bothering to read it, I signed on the dotted line. I couldn’t be bothered to wade through a bunch of complicated provisions. They didn’t matter. I wanted to sell my book. And, I liked the person on the other side of the table. More than that: I trusted her. If there were any difficulties down the road (and occasionally there were), I was confident that good faith conversations would fix them (they did). I don’t remember if we shook hands, but we might as well have done. I relied on trust.
Ah hah, the reader of this column may be thinking, I get it! You believe that you’re better off signing a contract without reading it, particularly if you’re a little guy dealing with a big corporation which puts a “take it or leave it” standard form agreement on the table. You can always claim later you didn’t know what you were doing, you didn’t understand what was happening, the offensive provision in question can’t possibly be binding, you didn’t have a choice, you were being pushed around and you didn’t even realize it, inequality of bargaining power, etc., etc. That sort of argument might work for some people — I’m not sure if it would today, Lord Denning’s been dead a long time — but I don’t think it would apply to me, given how I earned my living for many years.
My change of attitude once I left legal practice got me thinking about the relationship between trust and law. It’s clearly inverse. The less we trust each other, the more we rely on rules. That’s true in private law, regulating dealings between people, and it’s true in public law, governing the relationship between citizens and the state. If I’m doing business with someone I don’t trust, I want a comprehensive, ironclad, enforceable contract. If the state is suspicious of its citizens, it will increase surveillance and limit freedom of expression. It will legislate An Act to enact the Security of Canada Information Sharing Act and the Secure Air Travel Act, to amend the Criminal Code, the Canadian Security Intelligence Service Act and the Immigration and Refugee Protection Act and to make related and consequential amendments to other acts (to give Bill C-51 its full, and frightening, name).
Obviously a complex society like Canada, containing people with diverse interests and ambitions, and different cultural backgrounds and aspirations, cannot run on trust alone. We must have a framework of private and public law to regulate and resolve inevitable conflict. And the relationship between trust and law is intricate. Fair rules, fairly applied, stimulate trust. Living in a law-abiding society, provided it has the right laws and there are not too many of them, is reassuring. Ronald Reagan was on to something when (in the context of strategic arms limitation negotiations), he said, “trust, but verify.”
The trick is to find the right balance between trust and verification, between trust and law. I think that society is better off erring on the trust side of the equation. The more it relies on trust, the healthier it is, and the healthier it will become. A handshake is better than a written agreement. Why do I say this? There is no set of neat arguments in favour of the proposition.
They should not be necessary. The proposition is self-evident. It is a mistake always to be filling in perceived, and perhaps imaginary, gaps in the social structure with complicated law. The more legalistic society becomes, the less cohesive it is. Eventually it will collapse, topple over, from its own legal weight.
For obvious reasons, many lawyers find this point of view hard to accept. Here is an ethical dilemma at the heart of the profession. A lawyer’s job is to lay on the law. His job is to reduce problems and disputes, some with deep and complex origins, to neat legal issues that can be resolved — maybe — by a ponderous and expensive legal mechanism available only to the rich and near rich. He works for an individual, a person or a corporation, in an adversary system. But, arguably, none of this benefits the broader community; indeed, it may be damaging. It’s a profoundly worrying thought for members of the legal profession. Or should be.
Philip Slayton’s latest book is Mayors Gone Bad.
