Irresponsibility -- whilst obeying rules and orders

Abuse of Faith in Governance: Mystery of the Unasked Question (Part #7)

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The "system" in question in each case is necessarily associated with some form of "rules", whether articulated as laws, rules, or orders of superiors. In the disastrous loss of faith in the cases cited above, the most frequent exculpatory claim has been that the individual was not infringing such rules. It is worth distinguishing such claims:

"Within the law": The argument in this case is that the action was not illegal and no evidence could be advanced that it was infringing any law. This has been a powerful argument in the case of the sale of toxic assets and in persuading buyers to engage in contracts where there was a significance risk of inability to pay. It has not been possible to demonstrate that this infringed any laws relating to fraudulent trading practices, mis-selling, or misleading advertising. In a further irony, those responsible for such actions have been rewarded richly according to the provisions of the obligations of the contracts signed with them (as legal documents)

"Within the rules": Where regulatory provisions had been established, whatever the degree or formality of their articulation, again it has not not been possible to demonstrate that any but isolated cases constituted infringement of such rules. Remarkably however, reference is now being made to infringement of the "spirit" of the rules, whatever the respect accorded to the "letter" of the rules. However, whilst this may now be held to justify opprobrium from those on higher moral ground, it is not a cause for any action against the individual.

"Obeying orders": Within the banking system, traders have claimed that they had received orders to engage in potentially rewarding high risk trades and were awarded bonuses according to their success. Interestingly this is held to be the justification for not prosecuting those who engaged in "enhanced interrogation" (aka torture) on behalf of the US intelligence services. There is no suggestion that those who ordered the traders to take such risks should be formally sanctioned in any way since they can argue that they were acting "within the law" or "within the rules". The question of whether those ordering the torture can be held criminally responsible is still under review but it is more than likely that "executive orders" will be interpreted to have justified such orders and to have ensured the impunity of both those giving them and those responsible for the executive orders. This is of course a highly sensitive area since "obeying orders" has been the principal plea of those accused of engaging in war crimes, most notably those prosecuted at the Nuremburg Trials, the Subsequent Nuremberg Trials, and in the trial of Adolf Eichmann thereafter. Presumably those accused at that time endeavoured to present documents indicating they were acting under orders according to the legal system in place at that time.

The possibility of appealing retrospectively to higher principles, giving greater weight to the "spirit" rather than what had been articulated in the "letter", raises the interesting hypothetical case of the application of "universal" legal principles of extraterrestrials to what they might see as abuses systematically perpetrated by humanity within an international treaty framework. Examples of such a case have been speculatively presented elsewhere (Interplanetary Security Council: Resolution on Earth, 2002).

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