Social Responsibility and Justice

Here is Mr. Samuel's note (07 August 2002) and The Law Journal's response.

From: "Samuel, Vin" in New Jersey, United States
To: <editorial@thelawjournal.co.uk>
Sent: Wednesday, August 07, 2002 12:09 PM
Subject: Social Responsibility and Justice

 Dear Mr. Risman:

 I smile as I read about your struggle with the assumed lack of social
 responsibility in certain judicial decisions. At least in our common law
 courts, jury decisions 'should' reflect the concerns of the society from
 which they are drawn. Was it accidental that you fail to recognize the
 role of juries in providing a solution to the problems of which you wrote?

 With reference to corporate fraud (the so-called capitalist greed),
 regulatory bodies already exist to control businesses in the public
 interest. And controlling corporate behaviour in the interest of the
 nation's citizenry is as much social responsibility as anyone can desire. But the
 so-called government 'bureaucracy' took a beating since Ronald Reagan and
 Margaret Thatcher and their disciples hoodwinked the public into thinking
 that big businesses were unduly constrained by government regulators, and
 that the invisible hand of the market would provide the ultimate economic
 regulator.. Consequently, over the last two decades, government regulators
 were given less resources and even less political support in their quest
 to administer programs for economic regulation of big business. Therefore,
 what you see as big problems requiring new solutions might not be so complex
 after all. Perhaps improved social responsibility in the judicial system
 and the corporate world could be achieved through the effective funding
 and administration of existing judicial and regulatory programs.

 Vin G. Samuel

 (Response from Brian Risman (09 August 2002)): Thank you for your interesting note. It raises interesting considerations in terms of the use of the jury system for social responsibility, as well as utilisation of existing regulatory bodies.

First, may I assure you that I did not deliberately ignore the jury system as a potential tool -- but you are correct in noting that omission. As I see it, the jury system does not ensure social responsibility. Witness the large number of high publicity, farcical trials in recent years such as the OJ Simpson debacle in the United States, and the recently collapsed Hells Angels murder trial in Canada (too many jury members didn't want to sit for a year or more). Juries are in many ways a relic of the past, and more of a comforting, political institution rather than an effective vehicle for ensuring justice. That is why the Judicial Reform package just released by our UK Home Secretary David Blunkett attempted to restrict trial by jury in certain circumstances.

Second, regulatory bodies are not a force for social responsibility. They are a tool for enforcement of rules. If well funded, and I understand your concern regarding the recent lack of funding of these institutions, these regulatory bodies may be in a better position to deal with these situations. However, they can only deal with the scandals after the fact. What I am addressing is a change in the corporate mindset before the fact. Regulatory approaches will aid in restoring public confidence, but the effect is the same as if a liquor board attempted to regulate Al Capone's operation in 1920s Chicago. Would you then trust Al Capone? I think not. What is needed is a reform of corporate practices and thinking. As I noted in my article, regulations created to evoke a Pavlovian response is not the answer.

Here is Mr. Mpanga's note (06 August 2002) and The Law Journal's response.

From: "David F.K Mpanga" in Uganda, Africa
To: <editorial@thelawjournal.co.uk>
Sent: Tuesday, August 06, 2002 5:26 AM
Subject: Social Responsibility and Justice


Dear sir,
 

I have just read your brilliant article and I have been moved to pen this quick message raising a few of points.

I agree with you that a justice system that fails to reflect the norms of the society over which it presides stands at risk of losing public confidence.  However my query is how do you get "social responsibility" injected into the judicial process?  Justice is administered by judges such as Lord Woolf .  I am sure that when they make decisions such as that to have the Bulger killers released they have weighed up arguments presented to them by both sides and they deliver a judgment which they honestly, but may be mistakenly, believe to be right according to the law passed by the representatives of society, i.e. Parliament.

How can the "social responsibility" factor be brought into a trial or an appeal?  Would you have amicus curiae in every case?  If so how would you guarantee that the social responsibility amicus is sufficiently clued up on the latest social trends?  Would it be compulsory for the social responsibility amicus to read The Sun, The Daily Mirror etc. which often seem to say that they are the arbiters of social responsibility?

There would also be some difficulty in injecting "social responsibility" into the more complex and dull commercial cases.  Already a case is being made for the end of jury trials in complex fraud cases.

I hope that you will be able to find some time to address my queries.

regards,

David Mpanga
David F.K. Mpanga
Mugerwa & Masembe, Advocates
3rd Floor Diamond Trust Building
17/19 Kampala Road
P.O. Box 7166
KAMPALA

Tel.: +256 41 343859/259920
       +256 78 260016

Fax.: +256 41 259992
         +256 78 260017

(Response from Brian Risman (07 August 2002)): Thank you for your excellent response. Your ideas are thought-provoking. I do not think that appointing an amicus curiae for all cases would be appropriate. As you note, the courts are already overburdened and overwhelmed. Also, most cases do not have a social responsibility component -- true, any case could be turned into a social issue, but there has to be a doctrine developed to prevent frivolous use of social responsibility.

My view, then, would be for an Ombudsman (or even the Home Secretary) to have powers of review on the grounds of social responsibility. The former approach of the Ombudsman would provide a less political slant to the application of social responsibility in exceptional cases. However, that Ombudsman would be subject to review by an all-party Parliamentary committee.

Please note that the article above did not attempt to provide a solution -- it was raising warning signals about the problem. Nonetheless, your points are excellent -- how do we turn a bleeding, burning issue into a viable solution? What do you think of my proposal? Did you have an alternative approach that could handle exceptional social responsibility issues with dispatch?

The other aspect of my article was less on the mechanics of prosecution and punishment, and more about incorporating social responsibility into an admitted bastion of self-interest, namely the corporate world.  Ethics seminars do not seem to help -- schools and corporations give these courses all the time, yet reality on the ground seems to differ. Do you -- or anyone else -- have thoughts on dealing with the problem up front, rather than after-the-fact? Finding a solution is something that I am grappling with given the recent scandals.

What are your thoughts on the above? This question is open to all, including Mr. Mpanga, who kindly raised these important considerations regarding potential solutions.