Double standards
Whose fault are double standards in office?
The philosopher Plato defined democracy; and then dismissed it as unfeasible.
Corruption, corruption everywhere, and not a drop to stink?
Vertrauen ist gut; kontrollieren, besser. So say the Germans: trust is good; checking is better. It’s an oft-quoted maxim that is more often observed in the breach. A lot of trust is placed; not so much checking is done. And, when a check reveals an error, what gets done about it?
A lot can get done about errors revealed by checks, or audits. Boris Becker, former tennis star and TV personality, languishes in prison in England for having attempted to cheat his creditors. And there is talk that checks carried out on the conduct of US President Donald Trump may yet see him have to answer for himself before a court of law. We await with bated breath. Meanwhile, accusations of bundles of fivers having changed hands in dealings with no lesser a personage than the King of Britain, not to mention the King of Jordan, the Crown Prince of Saudi Arabia and the Emir of Qatar, lie murmuring beneath the surface. One gains the impression that corruption is everywhere. Is it?
There is an old story, perhaps apocryphal, of a boy hauled up before magistrates for thievery. He is attended by his father. The magistrate asks the father, “Have you any explanation for why your son might have stolen these pens from the stationery shop?” The father answers, “Sir, I cannot explain it one whit. The boy gets all the pens he desires from me, which I take from the office where I work.”
My Uncle Harry was among the kindest, most devoted, most honest men I knew. But somewhere in the house lurk pencils to this day marked something like “Department of Finance”, taken – I hesitate to use the word “purloined” – from his government workplace. While most of us will regard such thievery as benign – almost an employee perk – the fact remains that pencils and pens are bought by organisations in order to do the work those organisations do and not for scribbling and drawing by the sons and relations of those who work for them. And the fact that I hesitate to use the word “purloined” is indicative of the general leniency that people are prepared to exercise when the accusation of “purloining” is directed at someone whose conduct is otherwise known to be irreproachable: a relative, friend or, dare I say, oneself. One reason why corruption is, relatively speaking, so seldom actually followed up on is that the Bible’s maxim – Let him without sin cast the first stone – is, in that regard, taken fairly seriously.
I can hear some reading this already rail at how ludicrous it is to hold taking a pencil from the office as comparable to cash for access accusations against King Charles. The access that the king grants by accepting large sums of money, on which no tax is ever paid, does far more harm than “accidentally on purpose” allowing a few pencils to slip into a briefcase. There can be no question but that the enormity of the crime is much greater in the one case than in the other, and it would be a never-ending task to pursue each and every breach of standards of low magnitude, since the resources thus tied up in petty cases would be unavailable to pursue major cases. The resources are limited, so must be put to work where they can achieve the greatest effect. No matter how many resources are available, there will never be an end to crime.
The perception in today’s world, however, is that corruption is indeed ever-present and in all places. The petty criminal has a ready retort: get a life. Those observing pursuit of the petty criminal have one too: a necessary evil. But what retorts are at hand for the failure or otherwise to pursue “big fish”?
Plenty of big fish in the sea. Sand to Till.
Nearby to Gialos on the island of Crete, there is a well-loved beach called “The Blue Lagoon”. I’ve visited it and waded for the first time ever in a so-called “waddy”, a shallow part of the sea no deeper than the knees, by which one could cross from one part of the beach to the other without swimming. The sand is a glorious mix of gold, red and black and, so I’ve heard, is very valued among sand collectors, or arenophiles. There are numerous boards erected at the beach in a multiplicity of languages beseeching visitors to kindly not take away samples of sand when they leave the beach for, the signs advise, if they did, there would one day be no sand left at the beach. The sand is the product of erosion by the sea of the sedimentary rocks that lie beneath the waves. It is a product of nature, created by nature and enjoyed by mankind. But the beach at Gialos is not “nature”, it belongs to the local authority, which makes it available for use by all and sundry – there is no entrance charge, and even the car park is free. What harm can taking home a bucket of sand do?
Despite the fact that the sand is constantly being created (the point would be even stronger were that not the case), it probably isn’t being created at a rate that would allow every last visitor to take some with impunity, and not impinge on the amount remaining for others to enjoy. Indeed the sign is correct: if everyone took some, there would soon be none left. What’s more, the sand is not a saleable commodity that its owner is placing on the market as “for sale”: the problem lies in the fact that it is free to be used and enjoyed and it is also saleable in the hands of arenophiles. There exists a market on which sands of the world are exchanged or sold by enthusiasts of the mineral. The sign is intended to discourage arenophiles from taking the sand for personal use or sale. But there is nothing stopping arenophiles from taking as much as they please. It is an uncontrolled bond of trust.
What the sign therefore does is not prevent theft of sand but prick the consciences of those who, in general and on the whole, adhere to such rules as are laid down on their conduct. It raises awareness of the problem of sand theft, its possible consequences and, ultimately the simple mantra that “what’s not yours to take should not be taken”. On the devoted arenophile possessed of a criminal streak it has no effect whatsoever and the lack of controls suggests that the local authority is prepared to accept a certain loss of its sand provided that remains within the bounds of the irrepressibly criminal and doesn’t seep into the generally law-abiding. For as long as the criminal thieves of sand do not make a public display of their act, this “control mechanism” will normally be sufficient. The danger comes when the thieves make a display of their act, and are observed by the law-abiding, who then ask themselves, “Why am I so law-abiding? See the areonphile – he takes sand without compunction, and what’s more he suffers no penalty for his crime.” Both the criminal and the law-abiding bather will be aware that, should a police patrol pass by and see either of them hauling a bucket of sand up from the beach, they could have to face the consequences. At best, they’d be asked to return the sand to the beach. At worst they could be fined. That would lie in the discretion of the police officers who caught them. In fact, they could be allowed to go home with the sand, even if caught. What determines, then, the decision by the law-abiding to follow the criminal’s example? And what determines the punishment meted out, if any, by the police?
The sign is erected based on certain assumptions:
- Signs stating prohibitions are generally adhered to.
- Once made aware of a prohibition, most people will stick to it.
- Losses occasioned by those who ignore such signs are tolerable.
- The police will prosecute breaches of the law as the law directs.
But, at work here are other assumptions, which the sign ignores. There are road signs elsewhere on the island of Crete that are peppered with bullet holes. That is usually an indication of disagreement by the shooter with the message the sign wishes to convey. The sign is left in place, not removed by him who is in disagreement. Removing it takes longer than shooting at it and, while shooting is likely to raise more noise than removal, the chances of being heard, pursued and caught in a remote area of Crete are less than the chances of someone happening by and observing the sign’s removal. Moreover, shooting the sign is a subliminal indication that he who shoots at such signs would like as not shoot at the persons who erect such signs: they are warned off with a very ugly middle finger. For example, the signs that indicate sites associated with the murder of Emmott Till in the US are regularly vandalised in this manner. (Emmott Till was a black boy whose death kick-started the Civil Rights movement.) As far as I am aware, the signs at Gialos are not vandalised in this way: were they to be, it would indicate to me that sand-collecting is a habit indulged in not just by arenophiles but by criminal gangs of arenophiles. Meanwhile, elsewhere, there may be criminal gangs with a grudge against double bend signs and place-name signs, and this may be nothing more than youthful sporting prowess on display. Let’s say bullet holes in signs are nevertheless concerning.
But, do people really observe signs telling them what to do? In the metro trains of Washington DC there are notices posted. They’re standard on every train and, in the course of a ride through the metro’s tunnels, the passenger has ample opportunity to drink in what they say. They list the activities that could accompany their ride and which of them are prohibited. In fact, they only list prohibitions: skateboarding, roller-skating, playing loud music, and so on. The list is headed up by the ultimate of all admonitions: it’s the law. The notices are less a request for passengers to not act a certain way and more a foundation basis on which a fellow passenger might demand that someone cease acting a certain way, failing which they form the basis on which a prosecution might be raised, for breach of a law is what a prosecution is intended to remedy. If the notice didn’t say “it’s the law”, would that change anything? A simple request might be countered by a miscreant with “Who are you to tell me what to do?” Indeed, the fellow passenger would then no longer be just a fellow passenger but an agent of the law, enforcing by proxy the edict of the law, with the sign as his justification for doing so. And a defence by the miscreant that he did not know it was unlawful to do what he was doing would be futile: due notice had been given of that unlawfulness. I wonder how many breaches of the law occur in Washington DC’s metro trains that are prosecuted? There will likely be very few. One might say, if that is indeed so, that the notices snarl like a lion, but have no teeth with which to bite. They are flouted on occasion; they are likely observed on the whole, if for no other reason than that most Washington metro passengers don’t travel on skateboards or play loud music. They just “happen to observe the sign”.
But, if the sign is flouted sufficiently, and prosecutions remain rare, what that does is send a subliminal message to all passengers. To those who break the law, it tells them that they may break it with impunity. To other passengers, it tells them that, regardless of how often they may observe breaches of the law, there is little or nothing they can do about them. It tells everyone, in short, that the law is toothless. If you want to enforce laws, you first have to show the public that they have teeth. The teeth of the law are the police. Day-to-day policing is a matter that falls within the domain of the police, and in carrying it out, the police exercise a huge swathe of discretion: some criminals they let off with a warning, some are prosecuted and some of those are acquitted, for want of proof or irregularities in procedure. And some are never caught.
How many fall into each category for each offence (innocent, let off, prosecuted and acquitted, prosecuted and punished, prosecuted and case dismissed) will vary and cannot ever be entirely known. We cannot therefore divine the actual numbers; what we can divine is the perception of what these numbers will be. Whilst perceptions also differ from one individual to another, the perception itself is guided by observation of incidental matters, newspaper reports and personal knowledge of cases. I have perceptions, and I’d like to share them with you.
Stealing pencils from work is unlikely to be prosecuted. The loss to the office in terms of value is very small. Whilst carting off a fax machine would likely merit a reprimand, taking a pencil would be “given the wink”. My uncle’s honour is intact, at least as far as the pencils go. But into the category of fax machines also fall shady dealings at board room level. Crimes perpetrated against the company itself, or by the company against other companies, the government, creditors, suppliers, workers. These are vastly more heinous than purloining pencils. Yet they are somehow related to purloining pencils. Because the degree to which the theft of pencils is tolerated, accepted, put up with, is not only a measure of how far the law condones breach of the law but a marker of the boundary that demarcates a necessary evil from an offence worthy of prosecution. The tale of the boy up before the magistrates illustrates this. The father sees no harm in taking a pen from his office, which the boy takes as his example when he steals pens from the stationer’s. The view we take of theft from a stationer’s is far graver than the view we take of theft from the office, and yet they are both examples of exactly the same crime (theft), involving exactly the same booty (a pen), done exactly the same way (surreptitiously or, worse, blatantly and thereby daring the observer to take action against it: bravado). Should the penalties not therefore be exactly the same (whatever that should be)?
Jurisprudence is for everyone: the SEPP
All of this may seem like an exercise in jurisprudence. Questions for law students and their professors, for judges and prosecutors, for police and policy. So, does the citizen have no role to play in all the ebbs and flows along the beach of double standards, for double is what all of these are. Any act that is proscribed but tolerated indicates a double standard; and where that double standard is flouted to the degree that the act becomes tantamount to being prescribed, as opposed to proscribed, is what I have in the past dubbed “the Sepp Blatter moment”.
Now, I have no desire to enter into court proceedings with Mr Sepp Blatter, for he has been accused of corruption and acquitted of all charges by a Swiss court, and it would be disingenuous of me to posit that the Swiss court must therefore itself have been corrupt to do that, so let me revise that nomenclature and call it, instead, a “socially ethical pivot point”, or SEPP. I define a SEPP as being the point at which, having being previously worried at accepting bribes, but having nonetheless accepted them, the miscreant becomes so inured to the wrong thereby committed that this point, the SEPP, is reached where the miscreant’s mind is turned more to the view that receiving such bribes is not only acceptable but, upon an accusation of bribery being levelled at the miscreant, he would in all conscience reply that what he is doing is standard practice in the trade and lacks any reprehensibility, thus invoking a retort of “Why don’t you do it yourself?”, or, as I said before, “Get a life.” At that SEPP, the law-abiding citizen is no longer simply law-abiding; he is also a fool to be law-abiding, and the boot is firmly placed on the other foot: the fool is no longer the criminal, and has become the non-criminal. Frequently, commentators ask of such miscreants, “Have you no shame?” The answer is patent: no, they have no shame. It is the lack of any shame that induces continuation of the crime. The law’s task is to reprehend the miscreant before any such SEPP is reached. And it is commonly failing in doing so. The boundary at which the SEPP is located is being lowered, by increment and stealth and not always simply by acts of bravado.
The test of “what one can get away with” is fundamentally simply: you can get away with that which is legal. If we introduce “necessary evils”, the test becomes “you can get away with that which is generally accepted”. If the SEPP is exceeded, and acceptance remains within the bounds of the “necessary evil”, ordinary citizens have no ground to complain of the act complained of. They do in law, but rarely in practice. Since the SEPP is an ethical pivot point, it has no definition in law. And necessary evils are defined also according to ethical concepts, not legal ones. To bring criminal behaviour within the remit of the law, the notions of SEPP and necessary evil need to be codified, and that is an impossibility. What therefore needs to be modified is the citizens’ conception of the two. They must banish the SEPP from all existence: no criminal act may be viewed by the actor as conscionable. And evils that are necessary must be constrained to those that it is impractical or impossible or uneconomical to pursue. The latter should be kept within the bounds of what is acceptable, and only a judge can in fact do that, if punishment is to be meted out for any evil. How judges do that will depend on what they feel within society is or is not acceptable, which is a consideration tested against acceptability generally within society. That is a matter not for judges or lawmakers in these cases, but in fact for ordinary citizens. Insofar, it is not lawmakers that make law against corruption. It is fundamentally citizens themselves who form the precepts on which laws are perhaps not made but certainly that have an effect on the adherence that is given to laws against corruption and the vehemence and resources with which they are pursued and punished.
Citizens ultimately make their own laws, except in utterly autocratic states, where it is the whim and will of the autocrat that holds final sway. In democratic societies, this is not so much the case, but it does happen, to a degree. This is because, although in a theoretical democracy, every citizen is equal before the law, this precept exists along with another, which is all too easily contorted in favour of one section of society or another: freedom. Citizens are free to do all that which they wish to do, conditioned upon adherence to the law, before which all of them will be treated the same way. Yet I do not know of any democracy where that holds true.
What is a limited company?
Let us take the limited liability company. It is a creature of statute, and it is a legal person. The concept of a company allows it to function in much the same way as a private individual functions. It can own property. It can exercise rights and it can owe obligations. In so far, a company is no different to an individual. However, companies cannot marry; they cannot make wills; they cannot have children, even if a subsidiary is sometimes called a “daughter”. All these differences stem from the fact that a company, whilst a legal person, has no flesh and blood, other than that of its directors and workers and owners. Even some of those could well be themselves companies. But companies can do one thing above all others that individuals cannot do. They can limit their liability. And that can be problematic.
The one restraint that operates on private individuals more than any other is wherewithal. Charles Dickens summed it up thus in his novel David Copperfield: “Annual income twenty pounds, annual expenditure nineteen and six, result: happiness. Annual income twenty pounds, annual expenditure twenty pounds ought and six, result: misery.” The word “misery” is not inappropriate, because Dickens’s family spent a period in debtors’ jail in his youth, so he knew exactly what it was he was talking about. Indeed, it may well have been the prospect of misery that urged Boris Becker to conceal some of his assets from his liquidator. His misery is now complete as he sits in prison, bereft of the assets he had concealed. There are also company directors in prison for the crime of fraudulent bankruptcy. Credit is a dangerous ally at best, to both granter and grantee thereof. But, nevertheless, companies have far greater facility with which to engage it. And they view it as their duty to do so, in order to engender growth in their business. When the crunch comes and failure of the business stems, or is deemed to stem, from injudicious investment, or folly, and not a deliberate endeavour to salt funds away from the company and into another entity, the shame may be great, as may indeed the misery. But the financial burden of such folly is borne not by the company itself, and hence its owners, but by the creditors who granted the credit in the first place. Limitation of the liability of anyone, company or individual, affects what is known as their “risk appetite”. The risk appetite of individuals in terms of credit is tempered by the inevitable conclusion that, sooner or later, they’ll need to pay back that which is borrowed, whether out of their savings or their estate after death. The risk appetite of companies is less tempered in that regard because all they need to repay is the amount of their share capital, and sometimes even that is depleted to “ought”.
Because companies are viewed as a necessary adjunct to any economy, nations’ laws permit them. But, in so doing, nations create a difference in treatment between the idea that “one should pay one’s dues” as applied to companies, on the one hand, and individuals, on the other. The safeguards put in place to narrow this difference in treatment never truly align companies with individuals because of the “first hand” nature of an individual’s finances and the sometimes “offhand” nature of a company’s.
There are other examples enough, right down to the immunity of politicians for the acts they engage in whilst in office. When a law enacts a privatisation of an industry, there is very often a range of effects that get swept under the carpet: the vaunted aim of generalising share ownership among the people of the country ends up as a windfall profit for those with the means to invest, combined with a gift to large financial houses of assets previously under the government’s control, for which is substituted a regulator, which may or may not regulate the industry efficiently and in the public’s best interests. The fact that electricity is currently so expensive in some places is manifest evidence of the failure of regulators to protect the public interests properly.
Citizens must not demand democracy: they must create it
If it should be assumed that autocracy is therefore undesirable, since it is predicated on the whim of the autocrat, which cannot accurately be predicted or, if found wanting, checked and controlled, and also assumed that democracy is the only path that allows of such checks and controls, then it is incumbent on the institutions of democracy to adhere as near as possible to the precept of equivalence before the law and to restrict freedom to the extent that individuals are unable to pervert that principle of equivalence and to allow citizens to procure and ensure compliance by such institutions with such precepts. If, in many regards, the adherence by institutions and, by extension, by citizens to the standards that are incumbent upon them to ensure democracy remains democracy in substance and not just in name is lax, then SEPPs will pop up all across society, either generally or in a particular sector, and reveal the conclusion that society simply doesn’t have the means or doesn’t care about having the means to ensure its survival as democracy.
If nations are run by institutions and institutions are created by citizens for that purpose, citizens cannot thereby absolve themselves of responsibility for the manner in which institutions and, by extension, nations function. The onerous task by which institutions are created and the cogency of the laws under which they are created, all ultimately depend on the cogency of the society that creates them. Their creation is an onerous task. Their operation is an onerous task. And maintaining the standards under which they function is therefore also an onerous task, the ambit of which is incessant. When a society creates institutions that it then absolves itself of all responsibility for maintaining, and allows those institutions to act at will and at their whim and does nothing to prevent or staunch that, then the citizenry has no one to blame for the institutions’ failings other than themselves. And if their acceptance of breaches of the standards to which institutions work rises as the acceptance of malpractice rises along with the readiness to engage in such malpractice themselves, the citizenry must look to such laurels as they still have to remedy the faults they observe.
The reasons for not doing so may be manyfold: from apathy to a desire not to prosecute because one wishes oneself to indulge in such faulty behaviour. But letting people get away with daylight robbery simply encourages daylight robbery, to which the apathetic may one day themselves fall victim and which is, anyway, no way to run a democratic society: for to fail to oneself desist from corruption or to pursue corruption in others is to be accepting of the corruption of autocracy in all but its name under a manifestly false label that proclaims, but falls far short of, the true ideals of democracy in even its impurest form.