Angry in the Great White North

We need rules. As social creatures, rules define the boundaries of acceptable behaviour.

Not so long ago, we had "common law" to define most of our rules. Common law depends on precedent, and not on statute (laws written up in great detail by legislators). In other words, common law is not codified on paper, but depends on the consistent application of commonly understood principles rooted in long-standing tradition.

The downside of common law is that to understand the laws, you need to be versed in those traditions and precedents. On the other hand, statutory law is defined in one place, in the legal code, and one needs only to crack open the law text and read the statute. There won't be any understanding of where the law comes from, but then none is required, because presumably the statute covers all the eventualities. It can be applied like a recipe to the appropriate situation.

Needless to say, our tradition is a mix of both common law and statutory law. The trick is to apply statutory law where it is required, and only there. That is because once a law is written up as a statute, the boundaries become fixed, and potential criminals can learn to skirt the law, perhaps exploiting oversights in the law when it was first fashioned. Though common sense might say that the person is behaving in a criminal fashion, the statute says otherwise, and the person avoids punishment, usually to the frustration of those around him. Common law has the benefit of more flexibility.

I bring this up because I wonder why we even need an ethics code. Ethics is one of those concepts that you either get or you do not. Most of us act in an ethical manner, and most of us can recognize unethical behaviour easily enough. For subtleties, we can debate and consider and come to a consensus. But as soon as you begin to codify ethics, you create opportunities for people to define ethics not as a common sense understanding of right and wrong, but as whatever is covered by the statute. If the statute does not define a particular action as unethical, it must be ethical, regardless of what common sense will tell you.

Not long ago, our politicians behaved in an ethical manner without the benefit of someone telling them what constituted ethical behaviour. Indeed, politicians were seen to be the model of ethical behaviour. They were supposed to be the best our society could offer, selected by the collective will of the people who themselves could be trusted to recognize those among them who were capable of making the right choice in a given situation.

Now our trust in politicians is so low that we think it's perfectly normal to write up rules for them to define what is right and wrong. We can't trust them to know right from wrong for themselves, and yet we trust them to spend our money and set our laws.

See why this makes no sense?

The whole notion of an ethics code and an Ethics Commissioner is in itself a surrender of our faith in ourselves to govern ourselves in an honest fashion. That is not to say governments are a priori trustworthy. That would be foolish. But then we have elections, a process by which every government knows that they will submit to the judgment of the people. That knowledge should keep them honest, and if they fail to stay honest, the people have the opportunity to elect a new government. But an ethics code and a permanent commissioner on hand to enforce it seems to me to suggest that we don't trust our elected officials to go more than a day or two, maybe less, without suffering a major ethical lapse, assuming they were acting ethically at all.

Trust engenders good behaviour. If you show trust in a person, that person will recognize that and try to behave in a manner that makes him or her worthy of that trust. If on the other hand you treat a person with suspicion on the outset, and make it clear that you expect them to fail you, that person will assume that failure is inevitable, and begin to act to protect his or her self interests, guaranteeing ethical problems.

Any manager or parent will tell you this is true. And yet we treat our politicians like they are cheats and are surprised when they do cheat.

The existence of an Ethics Commissioner did nothing to prevent the Income Trust Scandal, Adscam, or Shawinigate. The existence of an Ethics Commissioner almost certainly made it so that most people in government simply ignored unethical behaviour in their midst, assuming it was the Commissioner's problem, and worried about making sure they would not be caught should the problem be revealed.

Maybe we need to go back to first principles. Let the politicians know we trust them, that we selected them because, collectively, we decided they were fundamentally good people, whatever their political persuasion. Let them know we will judge their behavior at election time. Let them know that it is in their best interests to ensure that their fellow politicians are acting ethically.

And let them know that ethical behaviour is not subject to a number of statutory tests. There is no skirting the edges, because there are no edges, just a broad continuum of behaviour, with a scary grey area in the middle. If that doesn't keep a politician firmly planted in the white zone far from the grey area, I don't know what will.