Introductory Remarks, International Bar Association, Sydney, 14 October 2017. Presented by the Corporate and the Mergers and Acquisitions Law Committee
Your clients and colleagues have different approaches to business and deal making. They, like each of you, are affected by their comprehensive world views. For some, that view is at least partly religious; for others it is completely secular or humanistic. There are differences in religious perspective. Think only of the contrast amongst the Abrahamic faiths: Judaism, Christianity and Islam. Even within Christianity there are vastly different historic approaches to business. The so-called Protestant work ethic did not emanate from Rome. When opening up a consideration of these differences and the effect of diverse comprehensive world views, one can take a lowest common denominator, bland bird's eye view of all perspectives or one can share a little of the depths of one's own tradition, if only to provide a contrast and a point of difference to prompt thinking and discussion. I will do the latter.
I am a Catholic priest, a Jesuit and therefore a member of the same religious order as Pope Francis — the Argentinian Pope who rhetorically asked the European Parliament in 2014: 'What dignity can there be without a clear juridical framework which limits the rule of force and enables the rule of law to prevail over the power of tyranny?', and then answered, 'unless the rights of each individual are harmoniously ordered to the greater good, those rights will end up being considered limitless and consequently will become a source of conflicts and violence'. I am presently the CEO of Catholic Social Services Australia which is a church organisation dedicated to the delivery of welfare services to the poor and marginalised, advocating their interests and concerns to government in an age of 'Budget Repair'. Here I am on stage with five outstanding corporate lawyers with lifetime experience in mergers and acquisitions in a globalised world, operating across jurisdictions and across cultures. They work out of offices in Japan, Belgium, Canada, Ireland and India. It's a long time since the Catholic Church was involved even tangentially with mergers and acquisitions. I have been asked to give an overview of some of the philosophical challenges confronting you as corporate lawyers working in this space, acknowledging that you are working in a diversity of legal systems, with clients and colleagues from a vast range of religious backgrounds and none, with parties to disputes hailing from diverse cultures and world views, increasingly including indigenous peoples retrieving control both of their traditional lands and of their traditional belief systems. Any of you working in this space know that the laws of the state and the regulations of the market do not provide the complete template for your modus operandi. There is rarely a competent recognised authority, nor a tradition with high precedential value, nor a proposition of uncontested objective truth which can provide you with an unerring guide to right or best decision making. Or if there is, the case is not one which warrants your precious high paid time and application.
Preparing for this session, the panellists asked: How do differing world views (Indigenous, religious, cultural, secularist and technocratic and black letter legalism) inform, limit and confuse the prospects of deal making? Philosopher Alasdair MacIntyre who wrote classics like After Virtue has just published Ethics in the Conflicts of Modernity: An Essay on Desire, Practical Reasoning and Narrative. Macintyre says: 'Individuals…find themselves in situations in which practical questions are posed that are left unanswered by the ethics-of-the-state and the ethics-of the-market, questions that they can only pursue as individual agents, questions that the prescriptions of their social roles, whatever they may be, leave unanswered.' MacIntyre argues that Morality with a capital M is indispensable. He describes what this Morality with a capital M is able to do:
Morality will not instruct them as to which goals to pursue, and so it will leave open some key questions. What it will do is impose constraints both on their choice of goals and on the means that they may adopt in order to achieve their goals. It will do this by imposing constraints on the ways in which and the extent to which they may attempt to satisfy their desires and to further their interests. Morality is in this way indispensable for the functioning of the ethics-of-the-state and the ethics-of-the-market, since individuals can only function as modernity requires them to function, if their desires are expressed, contained, and ordered in certain ways.
The norms of the market and the law are insufficient for two reasons. First, 'there are too many areas of life for which the law leaves open too many possibilities for aggressively and competitively pursuing the satisfaction of our desires.' Second, 'even when and where the law is effective in civilising desire to some degree, it is so only if and because conformity to the law is sustained by a moral consensus of those subject to it, a consensus grounded in a set of moral norms which agents have generally internalised, so that the limits that they set to the expression of their desires derive primarily from internal assent rather than from external sanctions.' According to MacIntyre: 'To fail to feel bound to comply with the relevant injunctions, is to fail not qua citizen nor qua market participant, but qua human being.'
There is of course no international legal regime for the comprehensive governance and regulation of commercial activity. But increasingly nation states are negotiating free trade agreements and other trade treaties. In addition to membership of the World Trade Organisation, they are also committing themselves to a plethora of international dispute resolution procedures including conciliation and arbitration under the auspices of the Permanent Court of Arbitration.
Australia's last Solicitor General Justin Gleeson SC who had a range of experiences before these international fora recently postulated some interesting questions:
Every time we exercise sovereignty by assuming an international obligation, we have two further choices. One is to bind ourselves further to the international project by submitting to a binding dispute resolution mechanism, of the type which best suits the case. The other is to eschew the prospect of being able to be held to account for whether we have breached our international obligations. Do we turn the first way for trade obligations, in order to close the deal, but the second way for human rights obligations? Is that a principled way to proceed? What kind of future do we want for our country in our engagement with the international legal order?
International lawyers increasingly occupy that space between law, politics, the market and personal morality. Martii Koskenniemi says:
International law increasingly appears as that which resists being reduced to a technique of governance. When international lawyers are interviewed on the Iraqi war, or on torture, or on trade and environment, on poverty and disease in Africa — as they increasingly are — they are not expected to engage in hair-splitting technical analyses. Instead, they are called upon to soothe anxious souls, to give voice to frustration and outrage. Moral pathos and religion frequently fail as vocabularies of engagement, providers of 'empty signifiers' for expressing commitment and solidarity. Foreign policy may connote party rule. This is why international law may often appear as the only available surface over which managerial governance may be challenged, the sole vocabulary with a horizon of transcendence — even if, or perhaps precisely because, that horizon is not easily translated into another institutional project. I often think of international law as a kind of secular faith.
No matter what the economic, political and legal problems confronted by your clients and parties to disputes in which you are acting internationally, these problems can be better addressed and answered by a consideration of the profound truths and insights of all the religious traditions represented and by an application of the key principles and norms developed in the international law of trade and human rights, helping to enunciate the realm of law, regulation and political accountability, enhancing public scrutiny providing the right environment for doing business.
No matter how well developed the regulatory machinery, no matter how elaborate the constitutional separation of powers and the legislative provisions for accountability, there will always be a place for and a value-add from the national culture, corporate ethos and personal character. Thus the need to ensure that the national and ethnic cultures are sufficiently open to international influences, and sufficiently grounded in the goodness and the daily concerns of the ordinary citizen. There is a need to create the right corporate ethos and an appropriate business environment.
Alan Ryan who was long-time professor of politics at Princeton and Oxford published a two-volume work On Politics in 2012. He noted: 'To the astonishment of sociologists and political theorists, religion has resisted the forces that were expected to destroy it: industrialisation, affluence, democracy, and cultural pluralism. Secularisation has not taken place; or more guardedly, it has happened in most of Western Europe and not very widely elsewhere. Secularisation means several things; most broadly, that with the rise of science, traditional religious belief will lose its hold. Until recently, few writers would have suggested that religious passions, rather than the secular ideologies of nationalism, fascism or communism would threaten world peace.' Ryan postulates two versions of secularisation: 'the first holds that with the death of traditional belief, a surrogate will be needed, often thought of as a "religion of humanity"; the second, that no surrogate will be needed, that traditional belief will simply fade away.'
Not only has religion refused to fade away; there has been no surrogate, but a rise in fundamentalism and a renaissance in Indigenous belief systems. Thus the need for us to be able to critique religious beliefs and to harness those beliefs to inform and buttress the public Morality needed to cement the building blocks of the market and the public square: the ethics-of-the market, the ethics-of-the-state and the law. For lawyers, as for most sophisticated, educated moderns, these religious beliefs no longer hold sway as they did in previous centuries. But the quest for meaning continues. Writing about the 'unquiet frontiers of modernity' in his majestic tome A Secular Age, Canadian Philosopher Charles Taylor writes about 'the spectre of meaninglessness':
that as a result of the denial of transcendence, of heroism, of deep feeling, we are left with a view of human life which is empty, cannot inspire commitment, offers nothing really worthwhile, cannot answer the craving for goals we can dedicate ourselves to. Human happiness can only inspire us when we have to fight against the forces which are destroying it; but once realised, it will inspire nothing but ennui, a cosmic yawn.
Our age is very far from settling in to a comfortable unbelief. Although many individuals do so, and more still seem to on the outside, the unrest continues to surface ... People seem at a safe distance from religion; and yet they are moved to know that there are dedicated believers.
Being a Jesuit, dare I mention Pope Francis as an instance. In his 2015 encyclical Laudato Si' dealing with care for the environment, Francis observed that 'political efforts or the force of law' are often inadequate to achieve the desired policy outcome, and 'when the culture itself is corrupt and objective truth and universally valid principles are no longer upheld, then laws can only be seen as arbitrary impositions or obstacles to be avoided.' This is the challenging space for mergers and acquistions lawyers working internationally.
In May this year, 250 Aborigines and Torres Strait Islanders gathered at Uluru in the centre of Australia to consider how they might best be recognised in the Australian Constitution which does not even mention them nor the history of their ancestors. They issued a statement from the heart at Uluru telling us that their sovereignty is 'a spiritual notion'. They told us:
[The] ancestral tie between the land, or 'mother nature', and the Aboriginal and Torres Strait Islander peoples who were born therefrom, remain attached thereto, and must one day return thither to be united with our ancestors. This link is the basis of the ownership of the soil, or better, of sovereignty.
Not many 21st century Aboriginal Australians use terms like therefrom, thereto and thither. This statement is an adapted quote from the submission put by Mr Bayona-Ba-Meya, Senior President of the Supreme Court of Zaire, who appeared on behalf of the Republic of Zaire in the International Court of Justice in 1975 dismissing 'the materialistic concept of terra nullius' substituting 'a spiritual notion'. Judge Fouad Ammoun, the Lebanese Vice-President of the International Court, quoted the submission in his judgment in the Advisory Opinion on Western Sahara. This part of Judge Ammoun's opinion was then quoted by a couple of the judges in the Australian High Court's Mabo decision which recognised native title. How extraordinary that the inheritors of the longest living culture on earth would quote a Lebanese Muslim judge quoting a lawyer from Zaire to express the depths of their spiritual relationship with the land. This is a profound contemporary Australian lesson for corporate lawyers gathered from across the globe wondering how to harness the riches of diverse world views when working with different cultures and in different countries. We are able to share our diverse cultural and religious modes of expression to communicate the deepest yearnings of our hearts.
In the 16th century it was the Dominican friars like Vitoria, Las Casas and Montesino in Salamanca who confronted the state and challenged public opinion about the rights of the indigenous peoples in Spain's newly colonised lands. Not even the most nostalgic and forgiving Jesuit would opine that the modern practitioners of Morality with a capital M challenging the powers of the market and the state would be found in a modern monastery. Would we dare to look amongst our own at a meeting of the International Bar Association? Montesino, Vitoria and Las Casas helped shape a new international understanding of rights, duties and human dignity by being in touch with those most adversely affected by existing laws and policies, by being close to those who exercised power, and by being deeply schooled in their culture, religious beliefs and comprehensive world view. If we are to cut groundbreaking deals in the future, it will be because we have contributed to a renewed sense of what is fair and in the interests of all parties, taking into account their diverse world views, including the perspectives of newly re-empowered indigenous peoples whose lands and cultures are now re-recognised.
Let's now hear from the experts who can reflect with us from their own experience on how they complement the ethics-of-the-state and the ethics-of-the-market with their own Morality which is shaped by their own religious and world views, by the culture of their firms, by the expectations of their clients, and by the prospect of exposure by media who are happily critical of lawyers as a class of paid amoral agents regardless of their religion, culture or world view.
Frank Brennan SJ is the CEO of Catholic Social Services Australia.
Main image: Frank Brennan (centre) with co-panellists were Guy Harles (Belgium), Kate McGilvray (Canada), Takashi Toichi (Japan), Ashish Razdin (India) and Myra Garrett (Ireland)