When China – one of the world’s biggest economic powers – applied to join the World Trade Organisation (WTO), it had to promise it would carry through root-and-branch reforms of its laws and legal systems before it was considered eligible to join.

Like it or not, the WTO coalesces national sovereign and private mercantile interests, and it has unparalleled influence. What the WTO’s members say really counts.

The demand, made and accepted in 2001, was that China apply and administer in a uniform, impartial, and reasonable manner all its relevant laws, regulations, and governmental measures. Its requisite tribunals must be impartial and independent of concerned agencies of the executive or other parties. China would commit to systemic reforms that would promote transparency, predictability and fairness in business dealings.

The US Senate Finance and House Ways and Means Committees asked the US General Accounting Office (GAO) to monitor China’s implementation of its WTO commitments. A preliminary report was given by the GAO to the Congressional Executive Commission on China in mid-2002. The rule of law, and the new WTO member’s aspirations with regard to it, were the focus. US businesses considered it very important – especially as the actual characteristics of the current Chinese legal system included subordination of law to Communist Party policy and a lack of independence of the courts.

Also reported were the “challenges” – a synonym for difficulties and obstacles – conceded by some Chinese officials consulted by the GAO. This was alongside the detected considerable progress, “on paper”, in China’s efforts to render its legal system WTO compatible. But the progress was not just on paper. As a climax of its testimony to Congress, the GAO concluded what really showed China’s substantial shift toward a rule-of-law oriented society was the recent proliferation of law schools and legal training. There would be more lawyers, in the service of business, through a sound system of justice. “Lawyers and money” is not only a chapter heading of the most cutting part of a New Yorker-style book of jokes and cartoons.

The next early 21st-century occasion for reflection on lawyers and money flows from domestic US financial scandals. The spectacular rort at Enron was merely the example of a “supposed mischief” best known to the general public. “A supposed mischief?” It wasn’t the spectacle of big business using clever accounting and innovative so-called financial products or structures that spurred the United States Congress to action. No, it was the perception of crimes and frauds – telling lies when asked to show someone the money.

And at the heart of the Congress response to the excesses of capitalist greed was a special whistleblower role for the lawyers of possibly delinquent business clients – that is, clients reasonably suspected by their own lawyers of breaking legal standards concerning corporate securities. This is not an exotic foreign frolic – it clearly has influenced the various legislative suggestions afoot now in this country.

Just as the WTO demands on China as a new member show the country’s burgeoning attachment to an internationalised concern, so too the US Sarbanes-Oxley Act of mid-2002. Governments friendly to business, at least that of their own nationals, and willing to trade reciprocal standards with other governments, are clearly persuaded of the crucial part for lawyers in the serious matter of money and moneyed exchanges.

Under section 307 of the Sarbanes-Oxley Act, the US Securities and Exchange Commission (SEC) was required to issue rules for minimum standards of professional conduct for attorneys involved in matters of issued corporate securities, most obviously equity shares. Foreign lawyers were expressly in the frame. The only explicit requirement for these new rules was stipulated to be an obligation to report – “up the ladder” – dishonest corporate conduct.

The draft rules went on to permit reporting, or dobbing, externally, to the SEC, without lawyers breaching their duties of confidentiality. The touchstone is the involvement of the attorney in suspect behaviour, presumably unwittingly until he or she forms the reasonable suspicion in question. It can be seen how much further the Americans were prepared to consider going, compared with the current and understandable Australian professional worries about privilege and loyalty to clients.

By August 2003, consultations were over, and the final rule was promulgated. Commentators from the legal profession had uttered various dire warnings, some with much substance. The requisite record-keeping was viewed askance by some, as increasing a corporate client’s (or employer’s) vulnerability in litigation by forcing reports that would be a treasure trove of selectively damning evidence. A new and glittering prize for pre-trial discovery.

But the SEC pressed on, convinced that these new responsibilities for commercial lawyers would be an early remedy of illegal behaviour. This would, in turn, boost investor confidence – itself self-evidently good, however deluded some participants in irrationally exuberant booms have surely been.

How revealing that the most effective pressures for such radical change in professional obligations was the perceived need for honest capital raising. Congress’s charge to the SEC in section 307, after all, was put in the language of “the public interest and for the protection of investors”. If they know the business of America at all, it seems Congress members are – or at least a majority of them – persuaded of the critical, protective role of lawyers in the world of money.

Of course, it is not only big business, international trade, and the capital markets that display and need the good offices of decent lawyers. The myriad transactions and relationships of private and business dealings, large and small, have the same dependence.

Whatever else should be boasted or confessed about lawyers and money, it’s nonsense to suggest the legal profession is unproductive. Let wheat and beef growers, manufacturers of widgets and coal magnates, imagine the results of their efforts without laws of contract, punishment of theft, and enforcement of quarantine regulations. Then let them realise the essentials of government, and the integral component of government that is the part of lawyers. Even the most Luddite critic of the WTO, after all, shares its regard for the rule of law, differing only on the desirable extent of what may be called globalised jurisdiction.

The note of self-congratulation starts to falter at this point. The useful service of mercantile interests, in the public interest, poses conflicts and embarrassment for the legal profession. Traditional restraint and constraints are freshly needed, but may not be adequate in their existing forms. For example, while imitation of clients is universally rejected when lawyers represent criminals, it’s massively growing in the case of lawyers advising on and representing the interests of money.

Before elaborating on this, there is the perennial but less pressing matter of fees. Only about half of law-school graduates take up careers in private practice. The others practise law as government public servants, as corporate counsel, and in legal aid and other salaried non-profit sector positions. But public comment on lawyers and the money they get fairly focuses the emphasis on those lawyers who derive income from fees paid by clients.

Are those fees too high? Answers range from a hostile affirmative from those who regard lawyer jokes as sound sociological observations, to a righteous negative from the organised profession. Because the question is usually posed in a judgemental context, the wide range of answers can simply be noted, with a quiet rider that very similar questions could be asked about every other profession, trade and occupation – and often have been.

Regulators of the legal profession, it is interesting to learn, have not seen evidence of any major, let alone growing, incidence of genuine complaints about overcharging. Some reasons are, probably, that prior disclosure and agreement of legal fees are compelled, and that litigation fees are indirectly supervised by the courts especially through costs orders, and that commercial transaction fees increasingly are struck in competition against other advisers such as accountants and merchant bankers. And then there are, in fact, a lot of clients who observe how hard and well lawyers work to provide their services.

Sanity checks can and should be applied. If you want a New York salary, go there. If you are embarrassed by your large local fees, why not call them excessive and therefore reduce them? Should lawyers perhaps see their most expensive colleagues as, just maybe, not the best value for their clients?

But complacency, self-satisfaction and a kind of guild smugness await a legal profession content to leave issues about the level of legal fees in this neat package. Other tertiary-educated but less well-remunerated occupational groups are entitled to challenge lawyers on how much we’re paid. Lawyers can’t keep referring back to their years of study and early period of modestly paid apprenticeship. The former is not so long, and the latter is perhaps not long enough. Could HECS payments be the next form of this kind of self-justification? What multiples of annual earnings could one seriously claim on that account?

Increasingly, the pay of lawyers is justified by reference to the money offered in, say, London, New York, and Chicago. It suffices here to ask, how does the salary given for professional serfdom in those centres of commerce raise what should be paid in Sydney, Melbourne, and Perth? Sanity checks can and should be applied. If you want a New York salary, go there. If you are embarrassed by your large local fees, why not call them excessive and therefore reduce them? Should lawyers perhaps see their most expensive colleagues as, just maybe, not the best value for their clients?

Litigation currently displays aspects of a legal culture war. The Bar’s (and some solicitors’) time-honoured speculative (“spec”) briefs long ago won the High Court’s admiring approval. Almost as long ago, barristers recognised the possibilities for corruption posed by the spec representation of plaintiffs for whom the best, or only, prospect of a financial return might turn out to be a settlement – that is, a compromise less than the client wants, as compromises tend to be.

In hindsight, it is not surprising that the noble if flawed tradition of spec briefs – no win, no pay – has flowered, or exploded, into the frankly entrepreneurial industry of litigation funding, usually associated with what are dubbed “class actions”. No-one who has advised or appeared on either side of these models of modern litigation could be unaware of the fertile soil they present for conflicts of the most venal kind.

Who are the clients? Who is the master of the case? What does it mean, socially and professionally, for litigators to spur into action those whose claims were neither pressing nor large, but who belong to a formidably large group of similarly unenthusiastic pseudo-litigants? Apparently, it produces major litigation, enthused by the money it promises for funders and lawyers. But who is to say that this kind of money for lawyers does not, in reality, provide justice where formerly access to it was too expensive? The High Court will soon be looking at these questions.

As a former NSW Bar president I can’t depart the topic of legal fees without reliving shudders about lawyers and the flouting of their taxation obligations. Because it is lawyers, not just barristers, nor New South Wales.

Lawyers have no better immunity than anyone else from the requirements to render annual returns of income and to pay the tax due. If anything, the publicly funded system in which all lawyers – not just litigators – work makes it all the more intolerable that some lawyers resist meeting such reasonable obligations.

The statutorily deemed debt that is income tax is not, contrary to a stray dictum in the Court of Appeal, indistinguishable from debts incurred in private life. Welshing on the democratically set tariff for benefiting from organised society is, as the Court of Appeal has well and truly held, a special sign of unfitness for the office of lawyer.

This, hopefully temporary, embarrassment from a dysfunctional relation between lawyers and their money has undoubtedly added to the burdens of leaders of the profession when they lobby politically for the really very modest money demands of their most vulnerable clients – those who have suffered personal injury. Lawyers are now constantly met with strident protests that they are merely engaged in lining their own pockets.

It is, of course, true that restored or enhanced rights to compensation for the injured will end up providing work for the lawyers engaged in such disputes. The same truism applies to those who provide food, shelter and health care for those who need it – but that does not disqualify providers of those social goods from being politically active in promoting fair and general access to those goods. Actually, providers quite often know quite a lot about the weaknesses of current methods of provision. But for some time to come, lawyers will be handicapped by cynical responses as they try to advocate the claims of injured people for fair compensation payouts.

Meantime, over the last two decades the legal profession has been officially told to face up to being in business. Although there has been no official rhetoric to countenance backsliding on professional ethics, there has been any number of government enquiries and statutory overhauls to enshrine, proselytise, and – to a degree – compel the observance of competition principles. In this country, the regulatory politics have gone so far as to challenge, as anti-competitive, the Bar’s prohibition against the combination in business of advocates who would otherwise be each other’s competitors. Fortunately, that challenge has yet to succeed.

Thoroughgoing reviews of the legal profession in England and Wales and in Ireland concluded that most aspects of the institutional structures and practice regulation should conform to the laissez-faire model overtly driven by self-interest for money. In the lobbying clinches, time and time again, consultants to these enquiries made clear their political economy bent – the provision of legal services is not so different from that of any goods and services, many of which also require obvious quality and honesty regulation. Lawyers and money are thus treated as amounting to legal practice as entrepreneurial business, to be encouraged to act according to the profit motive.

None of the law reform reporters or attorney-generals responsible for the slightly muted competition march in Australia has intended any weakening of the legal profession’s ethical vigour. But their failure to slow, let alone halt, the slide into legal practice as a business brings about intolerable conflicts of interest and duty.

Of course, competition principles have inspired some salutary changes to the legal profession, not least an insistence that we justify in the public interest our grab-bag of rules and customs, some of which could sensibly be thrown out or dusted off.

Lawyers and money are thus treated as amounting to legal practice as entrepreneurial business, to be encouraged to act according to the profit motive.

In parallel, the last three decades of litigation and court reforms illustrate a continuing paradox of that project. As the court system improves in the direction of “just, quick, and cheap”, one of the aims is to reduce the volume of contested cases. This is to direct the public funding and the private expense of litigation to the tiny minority of cases where compromise is either not preferable or not possible.

But as success reduces delays in court lists, and speeds up hearings and streamlines costly procedures, so the calculus that determines which cases are better settled or fought shifts in favour of fighting. In this endless circle, the relation of lawyers and money displays in its most striking fashion our dependence on government and public funding.

How could lawyers discharge that social responsibility and honour that dependence if the standing of individual lawyers is measured by how much revenue they generate? What chance of litigation reform if the profession, metamorphosed into business for profit, explicitly disapproves of a lawyer devising the least costly option for the client? Imagine if medical practitioners took the approach that professional kudos should go most to the doctor who performs the most procedures for the largest fees on a particular patient?

It is not as if all competent and hard-working doctors and lawyers make inadequate incomes. Or has that observation lost its force, by the much closer proximity of commercial lawyers, in the service of big-business clients?

Lawyers are frequently parts of multi-disciplinary teams helping big business do business or government sell public assets. Other members of those teams are accountants. Accountants are well paid, too, and it may be that some are so well paid that they have encouraged commercial lawyers to feel their own value is under-appreciated by their common clients.

But perhaps the star turns are the merchant bankers. Scarcely merchants, although very mercantile. Usually not really bankers, but rolling in money – with pieces of the action, capitalist venturers, and people the lawyers briefly knew at university. No wonder the published aspirations of many big law firms have much more in common with large accounting combines and dazzling millionaires factories, than with their legal colleagues in small firms, in the country and in sole practice.

So too, it may appear, much of the work of commercial lawyers has a diminishing connection with justice, let alone an involvement in its administration. The wrong fork in the road was taken when the profession determined to specialise and sub-specialise its brightest graduates almost as soon as they had obtained their generalist law degree and practical legal training.

In many cases, the commercial lawyers are really part of the clients’ entourage, being served with the client by the litigators and counsel. Perhaps it is time for that division to be recognised formally. The lawyers closest to the big money of their business clients, having nothing really to do with the general corpus of law and no real interest in the administration of justice, might leave the legal profession and join with the management consultants, accountants, finance brokers and merchant bankers.

Much of the work of commercial lawyers has a diminishing connection with justice, let alone an involvement in its administration.

Excessive proximity to business clients, and their money, seems to have produced elements of imitation unlikely to enhance professionalism. The phenomenon of the big – and bigger and bigger – law firm should not simply be witnessed as if it were a force of nature. If we pinch ourselves, it will be remembered that not long ago the leading firms in this country, big by the standards of their times, had so few partners and staff that, by the standards of our time, they would not even be considered as mid-tier firms.

Yet were they able to conduct the largest and most complex litigation, minister to the most important property and commercial transactions, that their clients required? Could they carry out the legal research and inculcate the scholarship needed to advance the law and win the hardest cases in the highest courts? Were they good lawyers? Did they live in penury? The answers to those questions certainly do not support the truth of slogans such as “grow or die”. They do not substantiate the claim that only mega-firms have the capacity, whatever that means, to provide the services required by mega-cases.

One of those mega-cases being fought at the moment caused a press commentator to wonder whether, even for the magnates involved, it was so expensive that it might be the last hoorah for such major litigation. For some, this would be wishful thinking, for others an appalling downturn in their market. It is as unlikely as the death of the novel.

Yet very large pieces of litigation should not be deplored. Especially in commerce, very large forces do have disputes with each other, sometimes on a tectonic scale. Of course this jurisdiction and its lawyers are the best place and people to help resolve such disputes. Mega-cases are not really the problem. But thinking that the possibility of them occurring from time to time means that mega-firms need to exist constantly – that is a problem.

Competition theorists frequently talk up the promises of economies of scale. The idea is that a mass-produced motor car will be much cheaper and perhaps better than a custom-made one. Everyone wins (apart from the custom-builders). If that analogy held good for the provision of legal services in private practice, the biggest firms would have the lowest fees. But they don’t. If it held good, the biggest firms would provide legal services to the broadest range of willing clients. But they don’t.

Motor car manufacturers don’t incur fiduciary and other obligations like confidentiality which prevent them from selling their models to all comers. Lawyers do. The economy of scale is not a useful concept to justify more and more lawyers becoming less and less available to more and more clients – which is an inexorable effect of big firms, demanding business clients and reliable registers of conflicts.

The financial pages of serious newspapers have started to report and discuss the performance of big and aspiring middle-sized law firms in a sometimes fascinating mixture of sporting journalism, theatre reviews and gossip columns. Virtually the only yardstick of performance, equated to professional quality, is money. Very occasionally, the money won for the client, never the money saved by the client, nor the value bought by the clients’ money. Mostly just the money received by the firm, the revenue.

To rub it in, the figures are presented and re-presented to drive a message home. Whether it is the journalists or the firms who want the message sent is difficult to say – but one rarely reads of disclaimers or resistance by the firms with the glittering figures.

What is the message? That money defines the most desirable professional attainments in private practice. See the number of leveraged fee-earners per equity partner, or the revenue per head of professional staff. Marvel at the margins between revenue and costs, and especially the profit per partner. Business clients presumably put up with this perverse publicity on the part of their chosen lawyers, because imitation is understood to be the sincerest form of flattery.

It is doubtful whether the elaborate and intelligently managed businesses thast are the big law firms seriously claim they’re the only ones capable of doing what much smaller firms used to do – that is, deploy learning, integrity, imagination and loyalty in the fused service to clients in the administration of justice. What attribute necessary for that exercise may be found only in big firms? If really large teams are from time to time required, why not form ad hoc alliances?

It would be demeaning to justify big firms getting bigger so as to provide lots of IT, word processing, and photocopying. Those activities are no more professional than stationery is the business of a bank.

If all this misunderstands the way the world is, and vainly protests against progress, the path taken by lawyers imitating business clients has some interesting milestones coming up. Business outsources not only clerical drudgery but also highly skilled and relatively capital-intensive IT and document management – and outsources them to the ancient home of mathematics in India. Why shouldn’t massive mindless discovery be conducted in Mumbai. The requisite partner in charge could go there to supervise paralegals retained at much cheaper prices than permanent paralegals on staff in Sydney.

If money is the measure, who would dare to say that money for the lawyers is more important than money saved by the clients? Whenever functions or activities in the practice of law are no longer the essentially mental, personal and individual professional responsibility of lawyers, then the money spent on those other activities and functions surely should be spent as cheaply as possible in the clients’ interest.

The money necessary to keep a big firm going, to open the doors every morning (assuming they ever close during the 24 hours), is pretty scary. Decent human and social responsibilities to the many members of staff and their families mean that the partners and lawyers must generate very large sums of money by fees from clients, at a more or less constant level.

Perhaps it is time to ask if that business model presents, in the most obvious fashion imaginable, an intolerable conflict between the partners trying to do the right thing by their colleagues and staff at the firm, and doing the right thing by minimising their clients’ expenditure on legal services.

That conflict is presented in a form of dispute that very rarely reaches public attention. One of the less pleasant areas of advice work for some lawyers is partnership disputes – once upon a time dissolutions but now usually expulsions – among the partners of the larger law firms. There is good reason, from the point of view of public relations, for these disputes very, very rarely to go to court.

Increasingly over the the past 15 years, expulsions (and their precursors, downgrading of remuneration and support) have been decided on the basis of performance. What could possibly be wrong with that? Well, performance is invariably measured by money – and only money in the form of revenue.

The partnership deeds, the manuals and protocols all have commendable and sincere statements of professionalism, ethical service to clients and adherence to the requirements of law and justice. Those explicit standards of practice, not measured in money terms, only make clearer how important revenues have become. The non-mercenary standards are available to judge performance, but they are not used. Only revenue. Financial reasons are obvious and understandable. They include equally understandable grievances at partners who are not pulling their fair share of the heavy weight of paying to keep a big firm in business.

One expedient which may defer that intolerable conflict is for lawyers to join their business clients lock, stock and barrel. Not only the modest degree of corporatising already permitted, but out-and-out commercialising with publicly raised equity capital. Why should their own IPOs not become a new kind of professional achievement for lawyers?

When Teddy Roosevelt took on the Rockefellers and their ilk, Standard Oil must have appeared to be a natural growth of business conducted with appropriate self-interested vigour. There are probably still many who think anti-trust policy should never have made it into the statute books in the US or anywhere else. As you may have gathered by now, I’m not one of those. Industrialists and money need curbs and controls especially in relation to size and domination. So too, lawyers and money.

Ethics are an inescapable feature in commercial and professional landscapes that must be understood.

This chapter will advance and explore the following propositions:

• That the ethical dimension is an inescapable feature of commercial and professional relationships.
• That the ethical dimension necessarily extends beyond the boundaries of the law (at least as understood by legal positivists, whose position is rejected)
• That given the ‘inescapability’ and ‘scope’ of the ethical dimension, it is important for people working in business and the professions to develop a sound conceptual framework within which the relevant issues can be addressed. That is, ethics should not be treated as an ‘optional extra’.
• That there is a need to realise that there are no ‘technological’ solutions to the challenge presented by the ethical dimension. Rather, the most fruitful approach to ethics is that based on an understanding of the importance of relationships.

Having outlined the general points to be addressed, it needs to be recognised that it will only be possible to provide a general introduction to the range of distinctive concepts and issues arising in a discussion of the role of ethics in commercial and professional relationships.

Given the breadth of the topic, it will be necessary to offer very general comment. While this should present no difficulties in itself, such an approach does mean that the material will include some broad generalisations. It therefore needs to be recognised, at the outset, for every example cited there will be exceptions. It is not intended to offer a detailed description of the current situation so much as to draw the reader’s attention to salient features of a subject that invites critical examination and comment.

In some circumstances it will be necessary to make a point by drawing the reader’s attention to points of view that may seem either contrived or improbable. It should therefore be stated at the outset that the examples offered are real. They may at times represent a minority point of view, however, their mere presence in the practical discourse about commercial and professional ethics gives evidence of an approach that must be answered.

Finally, although a number of positions will be offered and explored in an attempt to highlight significant issues for debate, it will not be possible to engage in a rigorous exegesis of the arguments in support of each perspective. Given this limitation, it is important to note that some of the views examined are frequently held by people of good will who sincerely act in ways they think to be right. If certain tendencies are described and criticised, it is not the basis that they make good ‘straw men’ to be set up and then knocked down. Having said this, it will become evident that certain approaches to commercial and professional ethics are more solidly grounded than others.

The ‘ethical landscape’

Those bold or foolish enough to write on the topic of ethics must confront the fact that the mere mention of the word ‘ethics’ conjures up many disparate expectations and associations.

It is an old joke that Ethics is often confused for a county in the south of England. Despite being worn a little thin, the joke may have some point after all; for it indirectly points towards a way of conceptualising the field of ethics as a type of ‘landscape’. Indeed, the practice of referring to the ‘ethical landscape’ will be adopted as one of the metaphorical conceits of this chapter.

Is ethics the same as morality?

Another popular conception of ethics is that it is the same as morality. Those who hold this conviction variously contend that this means that ethics is a ‘private matter’, or that to discuss ethics is ‘futile’ because what a person thinks to be right has been irremediably determined by the influence of parents, peers, church and school during the formative years. As can be seen, there are a number of issues here that need to be addressed. However, the first of these must be the relationship between ethics and morality.

It is relatively easy to see how there can be confusion. Firstly, common usage fails to signal an appreciation of a distinction. Secondly, even dictionaries offer definitions such as:

… a system of moral principles, by which human actions and proposals may be judged good or bad or right or wrong …

Now, strictly speaking, it must be allowed that the definition in a dictionary is exactly that; namely, definitive. The difficulty is that the dictionaries generally fail to notice a subtle but important distinction between ‘ethics’ and ‘morality’.

One way to understand this distinction is to turn attention back to what is held (as part of philosophic folklore) to be the first question of ethics (at least in the Occidental tradition). This question was put by the ancient Greek philosopher Socrates of Athens. Rather than asking directly, “What is good? What is evil? What is right? What is wrong?”, Socrates asked an equally fundamental question that gives rise to the distinctive pursuit of ethical reflection. He asked:

“What ought one to do?”

It should be noted that this question is put in such a way as to focus attention on two important features:

• Ethics is about answering a practical question

An unintended and unfortunate by-product of the ‘linguistic turn’ taken by Anglo-American philosophy in the early part of this century has been that philosophers have, until fairly recently, tended to concentrate on issues arising in the area of meta-ethics; that is, in exploring the meaning and significance of ethical concepts. While this work is important, it has led to a popular misconception that ethics is all about theory and hence lacking in relevance to daily life. While it is incorrect to conclude that theory is irrelevant, the quality of the argument is not important to the point to be made here. Suffice to say that it comes as something of a surprise to people that ethics is about practical matters affecting the conduct of their daily lives.

In passing, it should be noted that although ‘relevance’ is not essential for engagement with philosophy (or any other practice) to be a worthwhile pursuit, there is something to be said in favour of philosophers dusting off their public persona so that they might contribute more fully to public debate about issues of importance. This would be to return to one of the traditional roles of the philosopher – a role not lost to the same extent in cultures other than those of the English-speaking world.

• The question of ethics is impossible to avoid

Socrates’ question is not bounded by reference to contexts such as role or situation. Rather he draws attention to the fact that every exercise of choice, that every decision, occurs in the ethical landscape. This is because, in all but one situation, a person is called upon to give some account of why a particular choice or decision was made.

Now it might be thought possible to evade Socrates’ question by answering a challenge for justification by saying, “Well that’s just the way we do things around here!” or “It seemed like a good idea at the time!”. But these replies fail because the persistent questioner can still ask for justification of living a life in a way that is based on uncritically following tradition or pursuing a hedonistic form of being. Surely enough, one can give an explanation based on tradition or hedonism. Yet in doing so, one has not escaped from Socrates’ question. Instead the door to the deeper issue of what constitutes a ‘good life’ has been prised open a little further.

If there is any way successfully to avoid Socrates’ question, then it may be by way of living a totally unreflective life, something akin to that of an automaton. Such a life would not necessarily be carefree, for example, one would still encounter circumstances requiring the exercise of ‘choice’.

However, in such circumstances the ‘choice’ would be literally meaningless to the person. Blind habit or instinct would take the reins. It’s difficult to believe that the extreme form of such a life is available to a person whose mental and physical capacities are fully developed. Who then would choose to live such a life? Indeed, in one of his aphorisms, Socrates summed up his position that “the unexamined life is not worth living”. An examination of what he might have meant is worthy of a volume in itself. However, his major point is clear in that he focuses attention on the need for each person to accept personal responsibility for his or her exercise of freedom.

The difference between ethics and morality

So how might Socrates’ question help one to understand the distinction between ethics and morality? It is hoped that the somewhat idiosyncratic analogy that follows will be illuminating.

The field of ethics can be likened to a conversation in which participants engage in an attempt to answer Socrates’ question. Over time, one begins to distinguish different voices articulating their distinctive answers. Rather than going through the tedious business of starting with first principles whenever a new and specific issue arises for determination, the ‘voices’ offer a variety of frameworks within which choices and decisions can be made. Some of these voices propound systems and approaches grounded in metaphysical positions.

More particularly, the great religions of the world offer the eager enquirer a host of alternative frameworks for answering the question of ethics. Hence, there is an Islamic voice, a Jewish voice, a Christian voice, a Buddhist voice, and so on. Each framework draws attention to holy scripture, or exemplary lives, or the teaching of its wisest members, or tradition as sources of advice when seeking to determine what one ought to do.

It is suggested that these voices are the ‘moralities’ on offer. Such ‘moralities’ are not confined to the voices of religion. Other ‘moralities’ have been established as the result of the philosophers. Although normally known as ‘ethical theories’, the frameworks devised by philosophers perform many of the functions of a morality. They come complete with a canon of authoritative texts, traditional formulations, a history of schism and reformation, high priests and acolytes. They also provide supposedly ‘knock-down’ answers to Socrates’ question. For example, a crude form of consequentialism would claim that if you want to know what one ought to do, then always look at the consequences of an action. And if you want to evaluate the consequences, always prefer those that maximise pleasure and minimise pain.

Such a simplistic form of Utilitarianism is now largely discredited because of its failure to secure just outcomes in significant cases. Nevertheless, a modality equivalent to morality is at work. While ethics is about answering Socrates’ question (especially its deeper soundings), moralities provide a framework for developing that answer and applying it to particular situations.

So, ethics is not the same as morality. Nor is it a matter of purely private conviction or the irremediable influence of one’s environment.

One may hold personal, confidential convictions, however, they are hardly ever private. While some feelings and insights may be so ineffable as to be beyond words (and therefore truly private) most others are susceptible to articulation. If communicated, then the public domain has been entered. At least this is so if one follows Wittgenstein in holding that there are no such things as private languages. But even more importantly, one’s convictions frequently interact with the forces of desire, motivation, reflex and intention in order to bring about action. Although complex in its dynamic, the interaction still leaves room for the conclusion that the relationship between ethical reflection and deeds is close enough to admit a public face to be in evidence.

This leads to the suggestion that a person’s upbringing sets an indelible seal on his or her ethical character. A moment’s reflection reveals such a contention to be false. One need only point to examples of religious conversions that take place late in a person’s life, or some other life-changing event, to see that people are not constrained to walk a narrow path through the ethical landscape.

Can one ‘tame’ the ethical landscape?

Various claims are made by moralities (including ethical theories) to provide an absolute answer to Socrates’ question. Some religious traditions proclaim that their answer is the only answer, some philosophical traditions claim that they have provided a ‘fool-proof’ method for determining the right course of action.

Yet, it must be acknowledged that every tradition has its critics who can point to a weak spot. In the case of the great religious traditions (which share much in common on the ethical front), it is their metaphysical underpinnings that are attacked. In the case of ethical theories, the attack is directed at their capacity to generate outcomes that are counter-intuitive in their effect. For example, one regular criticism of utilitarianism is its potential to justify the sacrifice of innocent individuals in order to maximise the happiness or preferences of the greatest number. Similar problems exist for Kantian formalism where the application of the categorical imperative makes one occasionally impervious to the unjust outcomes flowing from the application of a universalisable maxim.

This is not the place to go into any detailed examination of ethical theory. Suffice it to say that there are difficulties to be encountered in each theory or approach. Indeed, the Western (or should it be Modern) world has inherited an even more fundamental difficulty as a legacy of post enlightenment reflection on the nature of the relationship, if any, between fact and values.

It has been consistently argued, since Hume, that there is a radical distinction between the authority of statements about what is and statements about what ought to be. This has led people to conclude that there is no such thing as an objective framework for ethical reflection. Rather, it is posited that what people think to be right, wrong, good or evil is a construction of a particular time or culture.

Such a position has, in turn, given rise to a further set of suggestions that, for the sake of convenience, can be gathered together under the heading of ‘relativism’. In varying degrees, these theories share a basic position that holds that: there is no objective standard against which ethical positions can be measured and thus, adherents of each position are entitled to claim that theirs is as ‘correct’ as any other.

The relativists’ position is far more sophisticated than that portrayed here, however, the nub of the position is as stated. Some relativists go a step further and hold that different ethical positions are radically incommensurate and that there is no way to bridge the gaps that exist. In this they suggest that there is no ‘ethical landscape’ as such, but rather a series of discreet worlds. Others allow for the possibility of communication between adherents of different ‘worlds’ and that over time a common position might evolve – although it would still not be objectively better than any other possibility.

This is not the place to attempt a refutation of ethical relativism. Yet a few points should be noted:

• Relativists are in the paradoxical position of making an absolute claim that ethical relativism is true. At the very least, this raises questions about the consistency of the position.
• The fact that we do not have easy or uncontroversial access to an objective ethical state does not mean that such a state does not exist. Even science has to accept that a degree of uncertainty is built into the fabric of the universe. This they are certain about.
• There seems to be a universal ethical sense. That is, human beings are (except in extremely rare circumstances) aware of the ethical dimension and can be shown to share certain basic values (albeit expressed differently in different circumstances).
• If ethical relativism gives rise to an ethical landscape that is either a jungle or a place of fractured lands, we have seen that supporters of moralities based on religious tradition, natural law theorists, utilitarians, Kantian formalists and so on maintain that there are truths about the ethical dimension that can surely guide us in our deliberations and even give rise to obligations incumbent on every person to discharge. To varying degrees, they are absolutely certain about the position that they hold. Whether by faith, by reason (or both) they can give an account of what one ought to do?

For the sake of argument, let it be conceded that the latter group is correct. Having identified the true (or most true) position, would this then allow a person to traverse the ethical landscape with assurance? Unfortunately for those who seek certainty, even absolute mastery of a ‘true’ ethical system is still likely to leave areas of doubt. This is because the ethical landscape is more of a swamp than a parkland. Its boggy nature owes much to the incidence of the ethical dilemma, a feature which every person is bound to encounter from time to time.

It is an enduring feature of human beings that they seem to prefer certainty to uncertainty. This preference is maintained in the face of the experience of history where the only constant is change itself. As noted above, it is sometimes held that various moralities can provide certainty in an uncertain world. For example, the adherents of some religions believe that an unshakeable faith will provide recourse to answers in every situation. Unfortunately, the genuine ethical dilemma defeats even the greatest degree of optimism that certainty can be attained. For example, one might hold that it is proper to tell the truth and that it is improper to cause harm to other people. One might also be placed in a position where to tell the truth would be to cause a person harm. Neither calculation or application of basic precepts will lift you off the horns of the dilemma. One has to ‘muddle through’, sometimes choosing the least bad alternative.

Part of the task of understanding the ethical landscape involves accepting that the terrain is frequently of a somewhat boggy consistency painted in the tones of grey. People in business and the professions frequently encounter circumstances where values compete. There is little solace to be found in a wistful apprehension that things would be easier if one could be more certain. Rather, it is important that people come to accept that the human condition is such that certainty frequently evades us and that the exercise of freedom can be experienced as a heavy and shifting burden.

A place of zones?

For many people, the ethical landscape is partitioned into discreet boroughs, the borders of which are crossed whenever a person moves from role to role. From such a perspective it is held to be permissible (if not necessary) to discriminate between types of behaviour according to the role that is to be performed. Hence behaviour that would be inappropriate when acting in the role of a parent or neighbour might be perfectly acceptable when at work.

Those who hold this point of view could be making the relatively uncontroversial observation that different roles bring forth different circumstances. For example, a lawyer is unlikely to have to assist in the negotiation and preparation of written contracts when fulfilling her role as spouse or mother. The sorts of ethical issues that might arise in the preparation of contracts is rarely part of the ethical landscape of the spouse/mother qua spouse/mother.

However, the defenders of ‘zones’ may be wanting to make a somewhat stronger and more controversial claim; namely that in addition to circumstances altering with roles so do the relevant standards that ought to apply. To carry over the analogy from the last point, it would be argued that the rules for lawyers and spouse/mothers are necessarily different and bounded by the definition of each role. Any common elements would be nothing more than a contingent fact about the universe. This notion that there are special rules for special roles will be examined in more detail below, however, it should be noted at this point that such a perspective admits a kind of relativism that is open to criticism.

In practical terms, one often finds that members of the professions offer an account of ethics that is based on an implied endorsement of the ‘zones’ approach. For example, it has been the author’s consistent experience that when asked to say what ethics is ‘about’, professionals will point to a set of specific rules and regulations governing, to a greater or lesser degree, the manner by which they conduct their professional practice. These rules are generally of a fairly mixed character and can range from statements about duties owed to ‘stakeholders’ (usually the most important group being clients) to the requirements of what might be called ‘professional etiquette’ (including matters such as regulations and guidelines for advertising and so on).

Given such an orientation, it is not surprising when one encounters professionals who pronounce that they have ‘done’ ethics. By this they mean that they have completed a module of study in which the profession’s code has been taught, lightly examined and tested. Despite the fact that a number of professions insist that a candidate ‘pass’ ethics before being admitted as a member, it is not all that unusual to encounter people who boast that they ‘failed’ ethics the first time around! Where this sort of approach is prevalent, one can only conclude that there does not seem to be a deep-seated sense that the professional ethics modules impart matters of central importance to those who seek admission to the profession in question.

A similar manifestation of the ‘zones’ approach can be found in the world of business. In this milieu it is argued that there are special rules that apply to the conduct of business. In a particularly influential article, Albert Z Carr1 went so far as to argue that business is like a game of poker whose players understand that the normal rules of behaviour have been suspended.

Carr sought to examine the ethical status of bluffing in business. Is it the same as lying or does it have a fundamentally different character? In likening business to a game of poker, in which bluffing is an accepted convention, he made explicit the position that business plays by its own rules. What he failed to discern is that unlike a game of poker where all the players have voluntarily submitted to the rules of the game, business involves a number of ‘players’ who are drawn into the game without ever being given the chance to consent to the special rules and conventions. Business is touched by and touches virtually every aspect of society. With commerce being such a public practice, it is difficult to see how one could sustain an argument that private rules and conventions ought to apply.

While it will be difficult to argue that ‘public’ practices should be allowed ‘private’ rules, this still leaves the possibility that the ‘zones’ approach will be acceptable when private practices are involved. Thus, it could be argued that there are some grounds for conceding that the ethical dimension can be subdivided into role related units. While the possibility of this is really not at issue, its desirability must be open to question.

This is because such an approach presupposes that it is either necessary or beneficial for persons to live a kind of ‘ethical schizophrenia’ in which they put on and slough off value systems at will. Although there are people who can and do live such a life, one suspects that the division between zones is, for the most part, fairly superficial. Otherwise it would be necessary to forego the enjoyment of an integrated personality in which there was room for settled dispositions and convictions.

Having said this, it should be recalled that there is room still for a less controversial ‘zone’ theory which says that it is important to take account of the relevant differences arising in circumstances encountered when involved in particular roles. At this level it is possible to see how a person could be sensitive to her environment without having to endure a radical fragmentation of her ethical sense.

All of this presupposes that an integrated personality is better than a fractured personality. For the sake of proceeding with the argument in this chapter let it be stipulated that this is so. Anyone who has observed a person placed in a situation where the designated role requires behaviour that is completely at odds with his dispositions will know that a profound crisis of conscience can be as debilitating as other types of violent trauma.

Summarising ethics

• Ethics is about answering a practical question, “What ought one to do?”.
• For those who wish to live a worthwhile life, the ethical question is inescapable.
• Ethics is not the same as morality.
• Ethics is a ‘public’ matter
• Ethics touches on questions faced by a person as a whole, and not just when performing a discreet role.
• Ethical dilemmas abound, there are many occasions when it is impossible to discern the right course of action.

Are ethics an optional extra?

It will be evident from the preceding discussion that this question should be answered in the negative. Yet research has shown that for many people, the ethics of business (and, one suspects, those who advise them) are nothing more than ‘optional’. For example, the noted Australian social researcher, Hugh Mackay2 has found that:

“Australians find it difficult to make judgements about corporate morality, and part of the difficulty is that they see major differences between the behaviour of a corporation (where ‘profit’ is taken to be the driving force) and the behaviour of individuals (where motivations are far more varied and diffused). This line of thinking often leads people to such assertions as ‘business is there to make money’, and to question whether ethics really ‘comes into it’.

Many people would like the situation to be different, but there is an overwhelming sense that the very essence of business means that ethics will often function as an “optional extra’ rather than being fundamental to the character of business corporations.”

Mackay’s research draws attention to the high level of cynicism at work in the minds of the Australian public. This cynicism is not just directed towards people and the institutions of commerce. Research such as that conducted by Mackay adds to the evidence that there is mounting distrust of all manner of institutions: the law, schools, family, the professions, politicians, and so on.

The research goes beyond identifying public cynicism about corporate (and governmental) ethics. Mackay has found that members of the public ‘discount’ fine-sounding statements of principle as being the likely product of an exercise in public relations. This is not to say that such statements cannot serve a useful purpose. Rather, it is to draw attention to the fact that these devices are seldom effective when deployed by themselves.

Instead of being swayed by images dreamed up by advertising executives, or by glossy codes of conduct, people apply a simple two-part test when trying to assess the ethics of an organisation.

The first question to be asked is by a person is: How do members of this organisation treat me? Am I treated as if I really matter? Is trouble taken to assess my individual needs and preferences? Or, am I treated according to some sort of stereotype?

The second question to be asked by a person is: How do members of this organisation treat each other? Do they treat each other with courtesy? Is there an air of mutual respect? Do people seem to be happy in their place of work? Or, is there evidence of low morale, of strained relationships and so on?

In the final analysis, Mackay’s research shows that ethics is anything but an ‘optional extra’. Irrespective of what the community says about its expectations of business, people behave as if the ethical dimension is something to be tested on a regular basis.

When a gap exists between the professed standards of an organisation and its actual behaviour, then the organisation’s integrity is thrown open to question. This is not only bad because of the public’s perception of double standards, it is also a matter of concern because of what such a situation does to the internal fabric of an organisation.

At the heart of the problem is the risk of creating what has been called a ‘values gap’. This is not just a matter of consistency, it also touches on the larger question of whether or not the organisation is keeping values-questions before it, and under review. A ‘values gap’ can occur at the level of the individual manager or it can affect the whole organisation. Andrall E Pearson (1977)3  gives an account of the danger:

Managers need to ask the tough question: Do we have the right values for right now? And the place to begin is by honestly confronting the ‘values gap’ that has developed in most large companies, the pervasive difference between what the company says it stands for and what it actually delivers. The values gap is the largest source of cynicism and scepticism in the workplace today.

Bearing in mind Mackay’s findings about the second leg of the ‘reality-testing’ engaged in by members of the public, it should be evident that a failure to mount a serious campaign to address the ethical climate of an organisation will risk double jeopardy. Not only will employees become cynical with an attendant reduction in morale (and productivity), the public will also conclude that the ethical standing of the organisation is like the Emperor’s new clothes.

The arguments in favour of concluding that ethics are not an optional extra have been of two types. Firstly, it has been argued that the ethical landscape is a necessary feature of the human condition. There is no option to withdraw, one can only amend one’s response to the prevailing challenge of leading an ethical life. The second type of argument has been from prudence. It has been pointed out that a failure to take ethics seriously as a consistent element of one’s endeavours is to court cynicism (and ultimately censure) from two of an organisation’s most important stakeholders – the customers / clients and employees. It goes without saying that these comments apply equally to the fields of commerce and the professions.

There is a third reason for wanting to argue that ethics is not an optional extra. Instead of looking at the negative consequences of adopting such a stance, one might be inclined to make an authentic commitment to do that which is good or proper. That is, people working in commerce and the professions may seek to recognise the intrinsic benefits that flow from serious reflection about and commitment to traversing the ethical landscape in as virtuous manner as possible.

To choose such an option would be to trust that extrinsic benefits would flow in its wake. And this is not an unreasonable expectation when it is realised that a general erosion of an ethical sense leads to additional costs which, in the end, must be borne by individuals, organisations and society as a whole. This point will be expanded when dealing with the notion of trust.

Relationships are the key

When boiled down to its important basic constituents, Hugh Mackay’s research indicates that it is the quality of relationships that lies at the heart of perceptions about the ethics of organisations. Underlying these findings is a fundamental ethical principle that still seems to inform majority opinion. Although probably not expressed in the following terms, it would seem that Australians are still in tune with the notion of ‘respect for persons’.

The idea of ‘respect for persons’ is dense with meaning. It implies the existence of a fundamental equality between persons, it lends support to the notion that people should be recognised as ends in themselves and never treated simply as means to another end. The idea of respect for persons (including the self) underpins almost every practical requirement of ethics. To take but one example, people working in commerce and the professions will be familiar with the expectation that they will respect personal confidences. But why?

One explanation could be that there is an implied or explicit promise made by one person to another that the information taken in confidence will be protected. Breaking promises is generally thought to be a bad thing, so this could be reason enough. But why should one keep promises? It could be argued that the world would be an unmanageable place without the institution of promise making. Nothing and no-one could be relied upon. Language would be debased and the erosion of trust would begin to undermine the foundation for society itself.

It may therefore be argued that promise keeping is convenient for maintaining a community. However, if the reason for keeping promises is entirely selfish, why not work for a situation where everyone else tells the truth while you practice the arts of the accomplished liar? Why be bound by the ethics of the common person when you can transcend the boundary of the herd?

Such a question flows directly from the nihilism of Nietzsche and is unanswerable from the atomistic individual’s point of view. A robust ethical system can only be maintained in conditions where there is a general recognition of the need to set each person’s individuality within a context of community; where each person is seen to be intrinsically valuable. The alternative is a potentially ruthless jungle in which only the fittest and wiliest might survive. The problem here is that in the land of tooth and claw the strongest eventually grow weak and succumb so that all risk being reduced to the status of blind and bloodied beasts.

A commitment to respect all persons can avoid this outcome. It also provides a simple solution to the earlier question of why personal confidences should be preserved. Instead of seeking an answer in an examination of the status of institutions such as that of promising, the alternative is to acknowledge that confidential information belongs to the person who divulges it to another, and that as an object of respect such a person is owed the right to control that information.

The idea that persons are owed respect and that a robust ethical framework depends on a recognition of the importance of individuals in community reinforces the point that the ethical landscape is defined by sets of relationships in which people recognise and mediate the obligations that each owes to the other. While arguing that the ethical landscape is best treated as a whole and that respect is owed to all persons, it has been conceded that different situations call for different responses.

The worlds of commerce and the professions give rise to their own distinctive patterns of relationship. It is to some of the key features of these relationships that are now examined.

Commerce

The impression is sometimes given that people in business think of themselves as operating within an isolated zone of human activity which is defined by very few relationships of importance. Indeed, the very notion of a relationship is sometimes set aside in favour of a view in which all types of human conduct are reduced to the status of transactions.

This may seem a strange comment to make – especially given an increasing awareness of the importance of matters such as the need to achieve high levels of customer service and to recognise and balance competing (and complementary) duties to stakeholders. Indeed, both positions can be combined once it is realised that employees, suppliers, financiers can all be defined as customers of one kind or another.

The trouble with the ‘customer service’ approach is that it often proceeds from a point which recognises only the instrumental value of servicing customers. That is customer service is not seen as being important in itself, so much as being a means to the end of securing increased sales or some other business end. The same difficulty arises when the ‘customer service’ ethos is applied to relationships with other stakeholders. There is a tendency to think of stakeholders (employees, suppliers, competitors, regulators, the general community and so on) as being means to an end. As such the quality of the relationships must be marked low – even if the actual level of service afforded to each group is remarkably improved.

Those in business who hold to the fiction that theirs is an isolated enterprise conducted solely in order to increase wealth for the owners are likely to see that fiction progressively eroded as the community begins to insist on fair value in return for its investment. Prudent business-folk will acknowledge that their capacity to perform depends on the existence of an infrastructure developed by the community at large. This infrastructure includes essential elements such as the law, dispute resolution mechanisms, a system of education, a properly regulated network of markets, transport and communication facilities and so on.

It is assumed by society that in return for providing this infrastructure as an investment, business will generate wealth for the benefit of all – and not just the immediate investors. This is not to suggest that the community expects profits to be distributed equally amongst citizens. There is general acceptance in Western market economies that investors are due a higher return in recognition of the risk that they have taken with their capital. However, there is an (increasing) expectation that, in the pursuit of profits, the world of commerce will seek to avoid harm (as a minimal condition).

Bearing this in mind, a greater stress on environmental concerns, occupational safety and health, safety of products, corporate probity and so on is being placed by people qua citizens, qua investors and qua consumers. That is, people are increasingly prepared to shape or break relationships as and when they fell it to be appropriate.

This return to relationships (one even hears the term ‘relationship banking’ in use) is to be expected. In a time when the pace of change continues to accelerate and when the sense of belonging to a community has been eroded by the technologies of the city, it is only to be expected that people will look wherever they can for that added extra that comes from personal interaction with others.

One can speculate that the quality of relationships on offer will become one of the most important marks of distinction in a market where quality and price discrimination has been rendered superfluous. When products are of more or less equivalent quality and price, the basis for ensuring the loyalty of an existing customer base (and for benefiting by word of mouth recommendation) is likely to be an assessment of the relationship that has been developed. The same is likely to hold good when it comes to retaining the services of valuable employees and colleagues.

The argument so far might seem to be lending support to the claim that “good ethics is good business”. While this may be true, it should be clearly understood that the fact that good ethics is good for business is an insufficient reason for choosing to be ethical. A moment’s reflection will indicate that adherence to such a position would give rise to a very tenuous commitment to ethical behaviour. As soon as it became more profitable to be unethical the reason for continuing within the bounds of the virtuous circle would be dispelled. Instead one would concentrate on learning how to fake virtue while living the vicious lie.

Although the “good ethics is good business” line cannot be supported as providing an adequate basis for engaging in ethical behaviour, it does not mean that the statement ought to be ignored. As will be examined below, there are good reasons for thinking that good ethics is good for business. The trick is to understand and accept that there are collateral benefits flowing from ethical behaviour that is pursued for its own sake. That is, the development of relationships based on an authentic respect for persons is likely to lead to an improvement in the bottom line. Providing only that this improvement is not the primary reason for seeking to develop sound relationships, then there is nothing to regret about other material benefits that might consequently arise. It is possible to see how an ethical approach might secure collateral benefits by exploring its effect on a range of stakeholders.

Employees

It used to be that many people in employment believed that providing only that good service was given to an employer then a job was secure. Following the significant period of retrenchments that followed the recession of the 1980s, it seems unlikely that any but the most talented employees will feel secure. Even those who are most valued by a company are unlikely to feel a great deal of affection for an organisation that has broken the nexus between service and employment.

One by-product of this has been what The Economist has called “The Death of Corporate Loyalty”, a phenomenon which is likely to increase the costs of retaining people with vital skills. Changes in the level of corporate loyalty are also liable to raise the bar for corporations wishing to maintain the morale of all employees. This is because employers can no longer assume that employees will suspend their judgement or give the employer the benefit of the doubt when it comes to matters of policy and practice.

While security of tenure can allow for a climate of unfettered criticism and activism, it can also generate a kind of apathy in which normal concerns about the work environment are set aside as being relatively unimportant. When circumstances change, there is a real possibility that people will become more sensitive to the actions of an employer. Although the prospect of dismissal or retrenchment may silence outright opposition to measures thought to be appropriate, a collapse in morale and/or an erosion in commitment may flow accompany a perception that the employer is abusing the relationship. A reduction in morale is hardly to be welcomed when the drive to improve productivity is taken into account.

Suppliers

It is something of a truism that a good bargain is negotiated when all parties secure a result in which each achieves an acceptable result. The alternative is for the stronger party to apply maximum pressure in order squeeze as many concessions as possible from the other side. It could be argued that this is an acceptable approach to adopt when negotiating a single contract which has no chance of being renewed or repeated.

Against this, it should be observed that, in a world of easy communication, one’s reputation will be widely known. However, in cases where an ongoing relationship is thought to be of mutual benefit, it is hardly likely to be the case that harsh and unreasonable terms imposed by one party is likely to lead to a feeling of commitment from another. Even in those rare cases of a truly symbiotic relationship, there is a risk that a disenchanted party will bring down both as a way of ‘getting even’.

In less extreme examples where a strategic alliance is formed, it will obviously be of benefit to both if the relationship is robust enough to sustain the normal buffeting that is part of commerce. Where the relationship amounts to nothing more than one making use of the other, the connections are likely to be brittle and therefore vulnerable to shocks.

Customers

Reference has already been made to Hugh Mackay’s research and its implications for business. The obvious point has already been made that the quality of relationships may come to be seen as the most important basis for differentiating between possible suppliers. It is therefore important that businesses seek to develop a climate of customer service in which employees are trained to look beyond stereotypical images. This means developing a capacity to see beyond the generic ‘customer’ and through to the individual person whose needs are to be served.

The community

As noted above, the community provides considerable infrastructure to business. In a democratic society there is real potential for the community to assist or harm business interests through its attitude to matters such as the regulatory or tax environment in which commerce will be conducted. It is fairly obvious that there are collateral benefits for business in general when it conducts its affairs in an ethically responsible manner.

Stockholders

It is sometimes thought that stockholders are only interested in one thing – an increase in the value of their investment. While it is invariably true that this is so, it should be realised that stockholders are ultimately made up of human beings with an ethical sense. Stockholders want businesses to generate profits, but it is unlikely that they wish to see these profits secured at any cost. It would be interesting to investigate stockholder sentiment to see if people would be prepared to sacrifice, say one cent in the dollar by way of dividend, in order to ensure that a company could afford socially responsible policies in areas such as protection of the environment.

Should such policies be adopted by a company committed to ethical practice, then there is evidence to show that there will be a collateral benefit in the form of above average returns for investors. It has been reported in Fortune Magazine that:

“In tough times it’s all the more important to remember that ethics pay off in the end, and on the bottom line. Ten years ago James Burke, chief executive of Johnson & Johnson, put together a list of major companies that paid a lot of attention to ethical standards. The market value of the group, which included J&J, Coca-Cola, Gerber, IBM, Deere, Kodak, 3M, Xerox, J.C. Penney, and Pitney Bowes, grew at 11.3% annually from 1950 to 1990. The growth rate for Dow Jones industrials as a whole was 6.2% a year over the same period.”

Achieving a balance

It has been argued that an ethical approach to business is best adopted because of an organisation’s commitment to the principles and values that it espouses. At the same time, it has been argued that there are legitimate collateral benefits that flow to those who have adopted sound ethical practices. Some choose to see such arguments as the product of a recent change in business philosophy. Others still worry that a concern for all stakeholders is likely to be at the expense of stockholders. One can only address such concerns by pointing out that best practice has always acknowledged the intimate connection between sound ethical practice and the long-term interests of the organisation.

The late Sir John Dunlop5 expressed views that many would regard as having been ahead of their time. Speaking in 1964, he observed:

“I put it to you that the directors are responsible to the shareholders for profit in perpetuity; and that this general expression of a principle permits, indeed requires, directors to pay full regard to their employees, to labour relations generally, to the community, to the country, in all their decisions for and on behalf of shareholders.”

Sir John Dunlop saw that the interests of shareholders could only be properly protected if directors saw their role as that of trustee. But such a recognition comes at a price. It is a relatively simple matter to decide what one ought to do if one’s obligations are seen to be exhausted in service of the interests of current shareholders. However, when there is a diversity of immediate interests – some of which may compete, then there is a need to provide a framework in which decisions can be made. That is, there is a need to develop a set of guiding principles founded on established values.

There is evidence to indicate that a concern with the broader issue of business ethics is starting to register in the boardrooms of Australian companies. Korn/Ferry International’s twelfth annual study of Boards of Directors in Australia6 was published in 1993. In the previous year the study indicated that business ethics was the third most important issue in the boardrooms of Australian companies. The 1993 study saw a slight inversion of that result with the importance of business ethics dropping by one place to be supplanted by a concern for customer relations.

Having said this, the priority given to business ethics remained largely unchanged while there was an increase in the level of concern about customer and shareholder relations. While it would have been pleasing to see an increase in the priority given to business ethics, greater concern about customer and shareholder relations must be seen as a positive sign.

It is against such a background that one should welcome greater attention to shareholder relations. But if this is to be a proactive rather than reactive policy, it will need to be based on principled commitments. And this leads back to the underlying question of business ethics and management’s response!

A matter of trust

The world of commerce is best fashioned in an environment of trust. There are at least two reasons for this. The first is that it is only when people are allowed some scope to exercise independent judgement that they can also be seen to develop and maintain a sense of personal responsibility for that which they say and do.

An environment of close regulation tends to stifle this sense of responsibility as people defer to the supposedly higher responsibility. Released from the obligation to judge and act according to a well-informed conscience, there is a tendency to follow any course of action that is not proscribed. No amount of black-letter law or regulation can cover every eventuality. Yet in order to stamp out specific instances of unwanted behaviour (set within the compass of loop-holes) a plethora of legislation is enacted, thus further eroding any residual sense of personal responsibility.

In addition to the cost of reducing the ethical sense of individuals, there is also the financial burden to be borne by a society that can no longer rely on the inexpensive conventions of a hand-shake and a promise. As Davis7 (1989) has observed:

“… in some sense we are contrasting a world in which the notion of ‘my word is my bond’, a world of high trust, with a world which is purely caveat emptor, which implies very low trustworthy organisations. And the thing that I think economists teach us which bears on our morality is that the first is likely to be a much more productive society in any economic sense, because the entire deadweight loss of inspection, of protection, of insurance and of contracting is held to a minimum.”

Trust also lies as a foundation on which the relationship between professionals and their clients is based and it is to these that the discussion now turns.

Associations, occupational groups, and professions

The professions do not have a right to exist. They are not the product of a law of nature. Nor is their existence a curious metaphysical fact that one must necessarily take into account when contemplating the cosmos. Rather, the professions are a social artefact.

There could be thousands of people with a superb knowledge and understanding of the relevant disciplines and still be no professions as such. Individual practitioners might attract clients willing to recognise and pay for their learning and skill, but this would not make for a profession. Indeed, for there to be a profession at all it would first be necessary for people to come together in order to form some sort of voluntary association. The trouble is that not all associations are allowed to survive, let alone flourish. For longevity, one or more of the following conditions need to apply (the list is indicative and not exhaustive):

Internal conditions:

• there continues to be a raison d’etre for maintaining the association,
• the membership of the association remains committed to its preservation,
• there is a decision-making process capable of resolving and managing internal disagreements, of charting new directions and so on.

External conditions:

• the new association is relatively insignificant and therefore escapes attention,
• the new association is conceived by society as an expression of itself,
• the new association is perceived to offer no threat to society,
• the new association is believed to offer positive benefits to society,
• the new association is under the protection of some power sufficient to shield it from attack,
• the new association is sufficiently powerful to ward off any attempt to curb it.

As noted before, the conditions outlined above are not mutually exclusive. Indeed, it is quite possible that a fledgling association will pass through a number of phases in which its status changes. One imagines that a history of the professions would reveal just such a progression. But this is beside the point. The chief fact to bear in mind is that the existence of an association is a contingency and not a necessity. A sufficiently powerful force can obliterate it at any time. Alternatively, it can destroy itself through implosion, collapsing when internal supports have decayed. The facade may stand awhile, but it too will eventually fall.

Of the external conditions, except in the application of conditions five and six, the association will depend on the goodwill (or indifference) of the host society. One can imagine societies in which a powerful protector might be minded to guard the interests of an association. And it is possible to think of groups having sufficient power to protect themselves. However, all of this is quite academic when it comes to understanding the place of associations in a modern democracy such as we find in Australia today.

Given the sovereignty of the people, the community has the power to dissolve associations as and when it may desire. Constitutions and Bills of Rights offer only limited protection as they may be amended according to the popular will. Of course, it could be argued that the selective abolition of certain associations would be ‘undemocratic’. This may be true. However, it is a curious feature of democracies that they enjoy the capacity to act undemocratically. The only penalty they might suffer is the sting of criticism from those who are concerned to promote authentic democratic consistency. The charge of bad-faith might stick. But short of some external power imposing sanctions, there would be little to prevent such a course of action being followed.

The social ‘compact’

While a society might be expected to tolerate all manner of associations as a proper expression of a commitment to the principles of liberty, it is a little more difficult to see why it should allow any group, defined by a common occupation, to enjoy privileges not available to other occupational groups. A moment’s reflection will lead one to conclude that a society founded on the idea of the formal equality of all can accept only two reasons for positively discriminating in favour of one group over another. The first is to redress some acknowledged wrong, the second (which it might be argued entails the first) is to promote the interests of the community as a whole.

For example, it is accepted by most people that the community would suffer if I had the right to perform open-heart surgery on my kitchen table. Instead, the right to perform such operations is restricted to those properly qualified and registered as medical practitioners. Similarly, it has been concluded that society would suffer if each individual was permitted to take the law into his or her own hands. Civil peace is thought to be enhanced if a properly accountable State is able to exercise a monopoly in the administration of force. Thus, powers of arrest are limited. An impartial cadre of judges supervises the trial of alleged offenders and the State (on behalf of the community) punishes the guilty.

None of this is controversial. At the heart of the position described above is the idea of a social compact made between society and particular occupational groups and associations. Certain privileges are accorded in return for the provision of social goods that would not otherwise be available. It is within this general scheme of arrangement that an understanding of the role of the professions in Australia must be located.

The idea of a profession

There is, however, another dimension to the discussion of professions. Rather than flowing from a consideration of the external environment in which the professions are sustained, this other dimension relates to what have been held to be the internal standards of a profession per se. One can observe that all manner of occupational groups can make bargains with society in return for privileges or other social goods and yet still not be considered to be professions. For example, parking meter officers have special powers not normally conferred on ordinary citizens. Yet, to be a parking meter officer is not to be a member of a profession. So where does the distinction lie?

One particularly influential definition of a profession was offered by Roscoe Pound. It goes as follows8:

“The term refers to a group … pursuing a learned art as a common calling in the spirit of public service – no less a public service because it may incidentally be a means to livelihood. Pursuit of the learned art in the spirit of public service is the primary purpose.”

The point should be made that to act “in the spirit of public service” at least implies that one will seek to promote or preserve the public interest. A person who claimed to move in a spirit of public service while harming the public interest could be open to the charge of insincerity or of failing to comprehend what his or her professional commitments really amounted to in practice.

In August of 1993, the Australian Council of Professions issued a discussion paper, Professional Services, Responsibility and Competition Policy9. Significantly, a press release about this paper was issued under the title, In The Public Interest. Both the paper and the release sought to distinguish a profession from “more commercially minded occupational associations”. As opposed to others, professional practitioners:

“… must at all times place the responsibility for the welfare, health and safety of the community before their responsibility to the profession, to sectional or private interests, or to other members of the profession.”

If the idea of a profession is to have any significance, then it must hinge on this notion that professionals make a bargain with society in which they promise conscientiously to serve the public interest – even if to do so may, at times, be at their own expense. In return, society allocates certain privileges. These might include one or more of the following:

• the right to engage in self regulation
• the exclusive right to perform particular functions
• special status

At all times it should be remembered that what society gives, it can take away. It only accords privileges on the condition that members of the profession work to improve the common good. Having said this, there should be no doubt that all citizens are served by the existence of independent professions that are free to interpret the common good as being something other than that which a government of the day decrees. Once again, it should be noted that a capacity for a profession to fulfil this role depends on the extent to which the broader community trusts its judgement and motives.

Deciding to take up the full and proper responsibilities of a professional career is akin to the old idea of finding a vocation. In most cases, the actual rewards on offer hardly seem to cancel out the sacrifice that is made when the narrower pursuit of self-interest (common in the market) is eschewed in favour of the public interest. Instead of relying on the operation of the ‘invisible hand’, the professional must choose – and choose well! The burden of choice is sometimes felt to be intolerable. This may explain why it is that one now hears members of the profession stressing that their primary orientation is towards ‘running a business’.

Perhaps the idea of ‘vocation’ has become foreign to most of those who make up the contemporary professions. Perhaps the belief in intrinsic goods has faded. But even if one is motivated by a spirit of public service, how is one to determine what may be in the public interest? One answer, from as far back as the ancient Greeks, is to try to identify certain core goods. Some of these immediately come to mind. For example, a good society is likely to be one in which people are treated with justice, in which good health is commonplace, in which the environment is rich, rewarding and safe.

The introduction to Ethics & the Legal Profession, edited by Michael Davis and Frederick Elliston10 builds on this idea:

“One of the tasks of the professional is to seek the social good. It follows from this that one cannot be a professional unless one has some sense of what the social good is. Accordingly, one’s very status as a professional requires that one possess this moral truth. But it requires more, for each profession seeks the social good in a different form, according to its particular expertise: doctors seek it in the form of health; engineers in the form of safe efficient buildings; and lawyers seek it in the form of justice. Each profession must seek its own form of the social good. Without such knowledge professionals cannot perform their social roles.”

As noted above, an old idea is at work here. It suggests that professionals might need to develop a particular appreciation and understanding of some defining end, such as justice. It is as much for this and the disinterested pursuit of these ends that the community looks to the professions for assistance.

Conflicts of duty

Most professions place the duty to the client at or near the top of the list of obligations owed to others. At the same time there is a general acknowledgment (again by most) that most professions owe a duty to the community. This gives rise to a potential for conflict, especially where a client seeks to accomplish some end that, while strictly legal, is considered by the professional to be unconscionable.

As noted above, the Australian Council of Professions (and a number of individual professions have made unequivocal statements in support of the proposition that the community’s interests be considered as of primary importance. But in practice, members of the professions encounter significant pressure to put the client’s interests before all others. This pressure is not evenly applied and in the context of this chapter, most of the arguments in the following section are based on an appreciation of the problems arising for lawyers and accountants. How then does one seek to balance these conflicts?

Two conceptions of liberty and the ‘thin’ conception of duty to the community

Those in favour of serving the clients’ interests above all others (what I will call the ‘thin’ view of professional duty) seek to reconcile the apparent conflict of duties by arguing that the common good is best served if and only if each and every person can be assured of faithful service from a qualified and competent professional. Part of the force of this argument flows from its proponents’ proper concern to ensure that the liberty of individual citizens is maximised under the law. Liberty is here conceived as freedom from constraint. Under this conception, a person is free to do all things except those proscribed (some lawyers argue that only illegal acts be proscribed).

Most people are bound to support the idea that liberty be protected. And to the extent that the professions play a role in either the defence, maintenance or exercise of liberty, so they deserve to be congratulated. Yet, perhaps one should be mindful of the fact that many believe that there may be too narrow a concept of liberty at work in the strict ‘argument-from-liberty’ that has been outlined above. Rather than liberty being seen as freedom from restraint it may be further articulated as freedom to pursue one’s projects in life, providing only that this is done without causing harm to others. This alternative conception may suggest that a commitment to the principle of liberty entails a further commitment to assist others or, at least remove obstacles from their path, as they go about the business of their lives.

Once again it can be argued that looking to secure the client’s interests through the provision of independent advice may be consistent with the demands of liberty. If a person is going to be free to do as he or she pleases (within the strict constraints of the law) then professional advice may be indispensable.

Thus, it is argued that one must conclude that both conceptions of liberty tend to support the contention that, with one exception, the professional’s duty to the client is superior to that owed to the community. The one exception is the professional’s own duty to uphold the law where this duty is understood to be an expression of the community’s will. Accordingly it is argued that to discharge one’s duty to the law is completely to discharge one’s professional duty to the community. That is, there is no residual duty to be considered.

Thus, supporters of this view of liberty suggest that its maintenance is enhanced by the existence of independent professions capable of ensuring that the use of power (by individuals, organisations and governments) is limited by the principled application of their skills under a framework of law. Similarly, given that citizens are entitled to know their actual obligations under the law (and any other applicable rules, such as accounting rules and so on), it is argued that professionals should be able to advise as to what is specifically required.

Finally, it is argued that the principle of liberty requires that there be a recognised right of citizens to test the law both in action and, ultimately, in the courts. This may, at times, require people to act in ways that others would regard as bordering on the illegal (and therefore proscribed). But it is argued that because there is room for legitimate and reasonable interpretation of the law, there must also be a concomitant degree of tolerance.

Given that, for the most part, our law is drafted to proscribe certain specified deeds, this leaves a considerable range of activities that are legal but which may, nonetheless, be harmful to individuals and/or the community. Professionals are therefore left to decide whether or not they have a professional obligation to attempt to prevent any of the avoidable (but legal) harms that their clients might visit upon innocent others.

The ‘thick’ conception of duty

Those who claim that the professional owes a duty to the community that goes beyond that owed to the courts and the law might be said to hold a ‘thick’ conception of the professional duty to the community. Such people argue that it is wrong (although possibly legal) for professionals to assist clients to perform acts that can reasonably be foreseen to involve harm to others.

What is to be said in support of this ‘thick’ conception of duty? The argument from this side might begin by suggesting that although liberty is an important value, it is not the only value. Indeed, the principle of liberty needs to be weighed in the balance with others such as justice and benevolence. But beyond this point, it is argued that a commitment to liberty (in either conception) requires that one recognise that there are internal limits to its application in the case of particular individuals.

The obvious point can be made that liberty for all entails that each individual is constrained to respect the liberty of others. To act in ways that restrict the liberty of others is not just to do harm, it is also to act in a way that is not consistent with a proper understanding of the principle to which one has notionally given allegiance. Of course a misanthrope could claim that he does not recognise the rights of others to enjoy liberty.

But then why should others respect such a person’s claims? In practice, the pursuit of liberty by an individual depends on his recognising that others have a reciprocal right to enjoy their liberty and that he has a corresponding duty to refrain from acting in ways that impose arbitrary limits on others. The law is one expression of social agreement about the limits of liberty that individuals may exercise in their dealings with other members of the community. But is the law the only limit?

At is at this point that the distinction between law and ethics becomes crucial. Most people have an intuitive feel for the distinction. However, it can be pointed up by an example. A person may be driving by the scene of an accident. Her passenger is a doctor who asks to be let down so that she can render assistance. There is a vacant space by the pavement where the injured person lies. But this part of the street is clearly marked by signs saying “NO STOPPING”. In short, to stop and let the passenger down would be to break the law. But to not stop would be wrong!

The dictates of ethics and the law can overlap, but the fact that they do is a matter of contingency rather than necessity. Thus, the proponents of a ‘thick’ conception of professional duty argue that to the extent a profession argues in favour of its members being able to support harmful activity, so it gives evidence of a failure to appreciate what it means, in practice, to act in a spirit of public service.

The ‘thin’ retort to such a charge is that it is important to weigh such matters in the balance. Although some individuals may be harmed by the actions of the clients of professionals, the aggregate of this harm is less than would otherwise exist if professionals failed diligently to serve the interests of their clients. In other words, the good of the few is to be sacrificed for the good of the majority (or the good of all).

Some of the arguments explored

Here one encounters the need to recognise that just as different conceptions of liberty may be at work, so there may be different conceptions of justice. Indeed, one may contrast the view of those who see justice as involving a fair process with those that think justice involves a fair outcome. Those offering particular allegiance to the client may tend to favour the former option, with their opponents favouring the latter. The crux of the matter lies at the point where one is required to take a position on the question of whether or not it is ever just (as opposed to necessary) to sacrifice an innocent person for the sake of a group, system or idea. For example, should the fortunes of creditors be destroyed because of the capacity of a debtor to evade responsibility through the manipulation of the various bankruptcy laws?

As we have seen, some professionals would argue that they have a duty to the client to carry out his or her instructions to the full extent allowed by the law. If the law allows for Part X meetings to be held in obscure locations after being advertised in obscure publications, then so be it. It’s not for the professional to substitute his or her judgement for that of the client. Furthermore, if legislation allows for this possibility, then it is up to the legislature to remedy the defect.

There are two principal objections to this ‘thin’ position. Firstly, it seems to suggest that the professional is really nothing more than the proverbial ‘gun for hire’. Providing only that it is legal, the professional will do anything that the client wants. Accountants and the legal profession tend to have received the brunt of community criticism on this count. The criticism is not new with Macaulay11 making a wry observation that a lawyer would:

“… with a wig on his head and a band around his neck do for a guinea what, without those appendages, he would think it wicked to do for an empire.”

This is close to the heart of community concern; namely, that for a sufficient fee the many professionals will ‘justify’ and facilitate unethical behaviour. The professional is seen to be reduced to the role of a mere cipher, albeit a brilliant creative cipher, who has surrendered all claims to exercise professional judgement on matters affecting the client’s interests. In such circumstances, professionals are liable to conflate the client’s ‘wants’ with the client’s ‘interests’. And this, it is argued, is ultimately to fail to serve the client’s interests at all.

Wants and needs

The point may be made by way of an analogy drawn from medicine. A diabetic patient may tell the doctor that she wants a large block of chocolate without the doctor having any doubt that the interests of the patient preclude her request being met. In such a circumstance a responsible doctor would not hesitate to advise against eating the chocolate. What is more, the doctor would probably be considered negligent if she helped the patient to satisfy her want. As will be seen below, this distinction is of fundamental importance when resolving the debate between supporters of the ‘thin’ and ‘thick’ conceptions of the duty to the community.

Professionals may need to become better acquainted with the distinction between wants and interests. For example, there may be legal options that a client may wish to pursue, although the professionals’ best advice is that to do so would not be in the interests of the client, as construed in all good conscience. How then do professionals justify pursuing a course of action that they reasonably believe to be harmful to the client? Some say that it is up to the client to decide and that every person is entitled to professional advice, representation and/or assistance. But it is important to notice that there are two propositions here. The first asserts that people must be free to judge matters for themselves. Even if one accepts this principle (as I am inclined to do), it does not follow that every person is entitled to the service of a professional in the pursuit of a goal that is legal but foreseeably harmful. Such a principle needs to be established independently.

Can ‘thin’ claims about self-regulation be taken seriously?

The second objection to the ‘thin’ claim that professionals should suspend their judgement about the ethical dimension of the behaviour of clients is that it undermines any serious claim that they ought to enjoy the privilege of self-regulation. If it is the law that establishes the absolute limit of conceptions of right and wrong, then it is parliament and the courts that ultimately determine the range of behaviour to be considered ‘ethical’ professional behaviour.

Of course the legislature may delegate some of its functions to other bodies such as the various professional associations. But what then of the vaunted independence of the professions? If it is true that professionals should not make an assessment of the ethics of client behaviour, how can they then exercise judgement in the case of colleagues (who deserve to exercise liberty to the full extent allowed by the law)? Application of the ‘thin’ conception to the judgement of professional peers would have us conclude that, providing the behaviour of professionals is not illegal, then it is not wrong – no matter how ‘sharp’ it may happen to be.

To summarise, professionals who suspend their judgement and just follow the law, leave all matters of conscience to the parliament. But then they are nothing more than a clever puppet. Clients pull the strings and the government writes the lines. Such a situation makes a mockery of the notion of self-regulation. But worse than this it throws open to question whether or those professionals who hold to the ‘thin’ line can seriously claim to have a practical and authentic relationship to justice or any other of the defining ends of their professional practice.

Why the ‘thin’ argument fails

But it is the point about the clear distinction between the scope of ‘ethics’ and of ‘law’ that there forms an argument of greatest damage to the case mounted by those who would support the ‘thin’ conception of professional responsibility to the community. It is clearly in the public interest that the incidence of ethically significant harms and wrongs be reduced to the greatest extent possible.

Indeed, one could argue that an essential part of what it means to promote the public interest is to achieve such a reduction. However, we have seen that it is only a contingent (rather than necessary) fact that the law will be such that what it either proscribes or prescribes is coincidental with the public interest. That is, the law can be unambiguously unjust – as in the case of the legal foundations for slavery.

This means that professionals who are seriously committed to the idea of being members of a profession (rather than, say, just an industry) do not have available to them the ‘thin’ conception. This is because allegiance to such a conception may commit practitioners to acting in ways that will harm the public interest. And to act in ways that might be reasonably foreseen to be against the public interest is, as we have seen, inconsistent with the defining characteristic of a profession.

Some further distinctions

But there is, perhaps, a further distinction that needs to be borne in mind. One can distinguish between that part of a professional’s work which relates to the provision of advice about the possibility of a course of action open to a client, and that which sees the professional actively assisting a client to secure his or her wants. Everybody may be entitled to have a clear understanding of that which is strictly possible without it being the case that the professions should facilitate everything that is strictly legal. This returns us to the nub of the matter. At first glance the arguments presented so far may seem to imply that some persons be denied professional services and/or representation. Once again, there is a need to explore the matter with the aid of further distinctions.

This is clearly a complex area, especially when one notes that professional advice/representation can make the literal difference between freedom and imprisonment, between solvency and bankruptcy, between life and death. This discussion has not been intended as a definitive answer to the genuinely perplexing question of how a professional should decide when a conflict occurs. In many respects such a conflict represents the archetypal ethical dilemma. Rather, the point of the discussion has been to argue that the professional should not abrogate responsibility by automatically acting according to a client’s instructions. Instead, the professional has a responsibility to act according to a well-informed conscience. Some will reject this, not least because it is to surrender certainty in favour of personal responsibility.

The need for a ‘level playing field’

All of this may sound quite naive. Surely, it will be argued, the pressures of the professional services market will be such that a client seeking assistance in the facilitation of a project that is legal (but against the public interest) will ‘shop around’ until a professional is found to do the job. In a similar vein, it might be argued that when engaged in a project it is essential that the professional be able to fight fire with fire. It could be argued convincingly that there’s very little point in following polite conventions and fair procedures if this means that the client’s interests will be harmed.

The points are well made. However, an immediate response comes to mind. Surely it is the role of the profession to ensure that the means by which its discipline is practiced should be subject to ethical standards applied across the board. This may mean that the profession will have to set standards of ‘fair play’ that go beyond what the law requires in terms of due process.

Some general principles

To what conclusions do the arguments outlined above lead? The following principles seem to have emerged:

• Every person is entitled to independent advice from a qualified professional
• Professionals ought not to suspend their judgement about the ethical status of their client’s proposals,
• Professionals should be prepared to offer independent, professional advice based on a proper discernment of the potential difference between a client’s wants and needs or interests
• While respecting a client’s right to choose how to proceed, no professional is to assist a client to pursue a course of action which, in all conscience, he or she believes to be against the public interest. In this regard, illegal acts are prima facie against the public interest.
• In the conduct of every matter, a professional is to proceed according to the profession’s accepted principles of fair dealing
• The profession, as a whole, is to ensure that self regulation ensures that only those who deal fairly continue to practise

Conclusions

This chapter commenced with the claims that the ethical landscape is an inescapable dimension of the human condition and that the landscape, itself, is constituted by sets of relationships. It has further been argued that these relationships are expanding and although tenuous and bounded by cynicism, seem likely to grow in importance as people struggle to come to terms with a process of continuous change in which the sense of community is constantly put at risk.

The argument then went on to suggest that the ethical landscape could not be ‘tamed’, that even if an objectively true set morality could be known, people would still be faced by the radical uncertainty inherent in the ethical dilemma. All of this may seem, therefore, to be somewhat depressing. However, this need only be so for as long as people remain wedded to the notion that absolute certainty in such matters is necessary in order to live a ‘good’ life. Instead, it might be suggested that a life can be ‘good’ if and only if one accepts that uncertainty in the field of ethics is part of what it means to be a person.

I have written elsewhere12 (QUT) on the distinctively ‘modern’ phenomenon of trying to apply ‘technical’ solutions to problems arising in areas such as ethics and aesthetics. The point made there is repeated here; namely, that it is not possible to calculate one’s way through an ethical dilemma or towards an appreciation of beauty.

This is not to say that those who engage in ethical reflection are doomed to failure and/or frustration. As an alternative to seeking a systemic approach to ethical reflection, it is possible to advocate a return to an older tradition based on the cultivation and exercise of the virtues.

Stemming from the insights of Aristotle (and as mediated by Aquinas and others), this approach focuses attention on the practical aspect of ethical reflection. The aim is to become the phronimos, the person of practical wisdom (phronesis). Such a person becomes the type of individual who can see a situation in its particularity and who has a feeling for the right course of action. This does not mean that the ethical dilemma is more easily resolved.

However, it does allow for the possibility that a person will be embedded in a tradition that recognises and accepts its inevitability. Being part of such a tradition will provide comfort in the form of acceptance that people do not fail qua people just because they struggle with their conscience. The other benefit of this approach is that it depends on the transmission of virtues by the example of the wise. That is, virtue is not taught solely in the form of propositional knowledge. It is demonstrated and explored in life, with a person of wisdom guiding others until such time as they are capable of making the relevant dispositions their own.

It could be argued that this idea of basing ethical behaviour on the exercise of the virtues is unrealistic because it depends on the development of traditions in which virtuous behaviour is exemplified and given meaning. After all, how does one know what moral courage requires unless there is some ongoing sense of its place in a well-lived life. Here, the problem is not with the idea of virtue so much as the possibility of maintaining traditions. This is a problem of modernity where all systems of value seem to fracture under the gaze of critical reason.

Yet, is the recreation of local tradition so difficult to envisage? After all, the world of commerce and the professions provide numerous examples of how an abiding ethos can be fostered and preserved over time. One need only think of companies like BHP (particularly in its subsidiaries) or the professions to see how distinctive ways of being have been preserved in the face of scrutiny. There is an important point to be made here. While the unexamined life may not be worth living, examination of one’s life need not be the precursor to inevitable reconstruction and change. One can look and after honest reflection, conclude that this life is quite acceptable in its general form.

It is therefore argued that a virtues based approach to ethics may offer real benefit to those who seek to traverse the ethical landscape. If this approach is followed then it will require the exercise of commitments that go well beyond the usual ‘quick fix’ solution of developing new rules for behaviour. While codes of ethics and codes of conduct (very different things) can be very valuable, they become next to useless when substituted for a conscious programme to develop an ethical organisation. This is not the place to outline such a programme. However, its essential features include the need to ensure that:

• it is based on an objective assessment of the existing ethos,
• all those affected are able to feel involved in the process of defining the emerging ethos,
• a ‘values gap’ (as discussed above) is not allowed to form.

If a virtues approach to ethics is to be developed then an indispensable requirement is that there be a core group of people who can exemplify the qualities of practical wisdom. In terms of managing this process, this will mean that those in management positions must come to understand that their role involves an indispensable requirement that they be able to lead. Leadership and management are not necessarily the same thing. Without wanting to outline a comprehensive list of qualities possessed by a leader, it may be suggested that such a list would include an ability and preparedness to persuade others to accept a shared perspective on what is desirable in terms of outcomes and behaviour.

This ability to draw people together in a common understanding and purpose may involve the application of skills and qualities that are different to those thought most desirable in earlier decades. Strangely enough, it may be that improved technology will make it less important that senior managers have special skills in areas of technical competence. ‘People related’ skills will become correspondingly more important and in line with Ferguson’s approach, the days of the generalist or, even better, the Renaissance figure may be back.

The other approach that will need to be considered by managers is one which involves a much more profound change in approach. In particular, managers find themselves with no other alternative than to question and then abandon an instrumental rationale for addressing issues of corporate character. A failure to make this radical reassessment may lead to a loss of the shared practices on which, for example, trust is based.

It may seem to be a somewhat fanciful suggestion; however, it is argued that managers should be guided by the combination of reason and intuition when addressing the ethical dimension of their practice. That is, conscience should be allowed to have its say.

As indicated above, one needs to sustain an ethos in which virtues make sense by ensuring that they evolve in the form of shared practices that give meaning to the terms of ethical discourse. As Professor John Langan13 has observed:

… we need to understand judgements of conscience not as solitary deliverances from a soul suspended on a rocky precipice in Tartary but as conclusions reached within a social setting. Accordingly, the character of this social setting becomes a matter of pressing concern both for the moralist and for the business person aiming at moral integrity and excellence. It is vitally important that the sources of understanding and judgement not be corrupted, that there be sources of enlightenment and encouragement in the business world. Otherwise, it will indeed turn into a wasteland in which individuals will find themselves unable to sustain common standards. (Langan, 1992, p. 12)

It is no longer feasible for business to ignore value questions which so persistently inform the human dimension of any enterprise. The fact that such questions have been set aside in the past is unfortunate, that this should continue would betray a blindness to the realities of the present and the possibilities of the future. The same can be said of the professions where there is a real danger that any sense of vocation will be lost and, instead, there will be guilds that specialise in the provision of ‘professional services’. Such a change may seem to be cosmetic, yet it will in fact herald a movement away from ‘society’ towards that of the ‘enterprise association’.

Society vs the ‘enterprise association’

In the current social environment there are many who would argue that a genuine commitment to ethics is an unrealisable ideal. Many think that sound ethical principles are fine in theory but that they can’t really be applied in practice. To try to do so is to be nostalgic. They say that to promote virtue is to be old fashioned, to hark back to ideas only useful in a different era. They ask us to be ‘realistic’ and to embrace the ‘modern’ way of doing things.

This plea is often nothing more than an ill disguised plea to allow for the survival of the fittest. Perhaps such people are right. Perhaps a dog-eat-dog world will be the most efficient. And perhaps efficiency is the only value that we need to embrace in the search for a worthwhile life. Or perhaps efficiency is only one of a number of important values that we must learn to juggle across an unpredictable landscape.

Those who are serious about the need to make ethical considerations an explicit concern in their daily lives must face up to this challenge. After all, what if their critics in the marketplace are right? What if the prime (and exclusive) aim in life really is to maximise our satisfaction of wants (and not just needs)? What if the liberty of the individual (important as it is) transcends all other considerations? What if it is through competition alone that we find the ultimate expression of our humanity?

One can only reply that an authentic commitment to leading an ethical life may require us to live in a way that makes only partial sense in a world dominated by an orientation to the principles of laissez faire. In a recent article re-published in the Ethics Centre’s quarterly newsletter City Ethics [now Living Ethics], Hugh Mackay4 argues that a commitment to ethics may only make full sense when viewed against a background of community. That is, the possibility of leading an ethical life probably depends on the prior existence of a society and not just an enterprise association.

Most people have a fairly good feel for what it means to live in a ‘society’. But what about an ‘enterprise association’? John Casey14 has tried to describe the latter:

We might imagine a city founded purely as a trading post. The laws of the city will reflect its original purpose, and have to be understood in relation to this purpose. Contracts will be vigorously enforced however unreasonable or unjust, because it is of the highest importance to retain the confidence of those with whom the city trades. Indeed, the notion of a contract being ‘unjust’ will have no meaning. All education will be subordinated to the need to produce an ‘enterprise culture’, and no subject will be studied as an end in itself. The rulers of the city will regard themselves essentially as the managers of the enterprise. Their tasks will be to maximise wealth and promote trade.

Is this so very far away from what people now experience? Some may say that this is an accurate and even attractive picture of the type of world in which we live. But does such a view of relationships miss something of vital importance? For example, do people exist simply to “facilitate the exchange of commodities” or is there something more? Is there, for example, a need to value friendships, to realise that other people can make a claim on us? Is living in a society only possible when we recognise that each person is bound to others within a network of formal and informal relationships?