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Law, ethics and culture: the if, the how and the what

 

In advance of our event at the Bank of England on 21 March 2017, we asked interested parties to write on the theme: Worthy of trust? Law, ethics and culture in banking…

Reflecting upon the relationship between law, ethics and culture, a first thought that intuitively occurs is in the form of a simple syllogism: law is concerned with what is ‘right’ and what is ‘wrong’, ethics is concerned with the ‘right’ behaviour; therefore law is concerned with ethics. But, in that simple reasoning there is no mention of the word culture. And this is where I would like to start. If we want to include ‘culture’ in our reflection we should link it to ‘ethics’ with the preposition: of. Culture may indicate any set of behaviour and it carries no positive meaning per se. Think at the expressions ‘a culture of greed’, or ‘a culture of impunity’ which we have read and heard countlessly recently. Therefore, it is (the creation of) a culture of ethics that we should be concerned with. So the question now becomes whether there is a relationship between law and a culture of ethics. And here is where our simple syllogism becomes slightly more complicated (and philosophers can finally forgive me!). To pierce that veil of simplicity implies asking whether law is in fact concerned with ethics in the first place. To answer this question we would need to define what ethics means. However, this is a Herculean task which I cannot endeavour to explore in full here. I will therefore only select those aspects that are relevant to my reasoning (..as lawyers typically do!)

Even though we may debate whether ethics differs from morality, we could all settle on the existence of a linkage between ethics and moral behaviour. Here a question arises whether law is concerned with moral behaviour and the answer is undoubtedly positive. Think of the role attributed to duress or good/bad faith in contract law. Or to intentions in criminal law. In fact, law is so versed into regulating subjective feelings that is able to attribute different degrees of culpability (think of aggravating and extenuating circumstances in criminal law). But ethics has also a strong public component and as such, law has an interest in ethical behaviour. Think of the consequences for society of collective unethical behaviour, as recently happened with banking organisations.

So, having recognised that law is and should be indeed thoroughly concerned with ethics, we can now investigate the relationship between law and a culture of ethics. We are also ready to finally refine our question and to ask whether the law has any role to play in the creation of a culture of ethics in companies. And here the answer is less clear than before in that the law has only a limited role to play. The law will provide regulators and regulatees with a set goal and often will identify the minimum set of organisational requirements that need to be put in place. The law will also give prosecutors powers to punish a breach. However, the law will not enter into the domain of business decisions, nor will give interested parties a detailed handbook. This role should be played by regulation, by self-regulation and by those private bodies that sit in between the public and the private domain. And in the banking sector, I believe this is the space that the BSB has the potential to fill.

Our very last question though relates to the how and the what. The BSB does not need to walk on a tightrope to avoid stepping on existing private and public bodies’ toes. It should work with them towards that common goal. In fact, this is in the interest of these bodies too. But it should also exploit its unique position to make sure that a culture of ethics is embedded in banks daily business activities, which is something other bodies may not be able to do. For instance, work can be done on banks corporate governance, in particular on the creation of governance mechanisms that would ensure ethical considerations are constantly taken into account. This would be of the utmost utility also considering the recent public policies on the matter that allow corporations some degrees of freedom. Freedom which a critical friend may be able to channel towards the achievement of that longed public good.

Costanza Russo, Senior Lecturer in International Banking Law and Business Ethics, Queen Mary University of London