Barrel Strength

Conrad Black and Julius Caesar have something in common. Both live or lived in legally rough times. Justice in republican Rome was arbitrary, partial, prejudiced, and infected with political vengeance.

It was said that a Roman governor had three years to make a governorship profitable: one year to pay back the bribes that got him his office, another year to make the profit, and a third year to make enough to pay the lawyers to defend him through the inevitable trials which would accompany his return to Rome.

Conrad Black was sentenced to six and a half years on the basis of a law that was recently quashed by the US Supereme Court. The prosecution had alleged that revenues from a non-competition clause in his contract of sale of his shareholdings in his company, a clause which was approved by tax lawyers, accountants and his own board of directors, was a crime of failing to offer his shareholders his “honest services”. His conviction is an ongoing scandal. Unable to prove anything criminal by recourse to ordinary statute law, the prosecutors had to rely on a badly worded paragraph that allowed prosecutors to invent what can be called “common-law crimes”, which is a polite way of saying: making it up as you go along. 

The legal risks of doing business in the United States are enormous and not sufficiently appreciated by outsiders.

The United States has a culture of rough politics, and it is getting rougher. It bears comparison with the politics of the late Roman republic. Law has become an instrument of oppression of members of the “senatorial” as well as of the knightly and plebeian classes. Prosecutions follow no principle. The risk of being a member of the board of a corporation are so high that a great deal of money must be spent on litigation insurance.

The near obsession with legal considerations in the United States is not the sign of progress or enlightenment that Americans think it is. Rather, it is the sign that the powers of one privileged class of people, the lawyers, are becoming so great that normal human or business considerations are being subordinated to the purely legal issues of litigation and prosecution risk. The more the uncertainty, the greater their powers as a class.

It would not take a genius to reckon that the powers of priests in 17th century Spain were too great; that the whole society was becoming distorted by religious fanaticism. Likewise in the United States, and increasingly in Canada, the lawyerly class is exercising too much power. Social and business relations are being driven into a narrow legal focus, where the question becomes “what is legal”, rather than “what should we do?”.

A society built on laws is becoming lawless, and I would argue it is becoming lawless because it constantly turns to law for solutions that should come from social consensus, trust, and host of other personal and political virtues. Any partial truth held to be the whole truth becomes a lie.

Conrad Black’s contention is that about a quarter or more of the intelligent labour of the United States is unproductively employed in finance, law and accounting. The reduction of legal risk would liberate many of these people for more productive employment. For the first time in my life, just this past weekend, I started to wonder about the safety of the republic, and its future. The lesson from Julius Caesar is that when the politics get too rough, when the stakes both personal and financial get too high, then some man of talent will eventually say “enough!”, and neutralize the Senate.