Morality clause

Legal is not always fair

What is legal isn’t always fair. The role of morality in law may be too small. People have different views about what is right and what is wrong so the prevailing liberal view in many Western societies is that people should be free to do as they please unless their actions harm others. Even that view can justify a greater role of ethics in law as humanity is on suicidal path. If moral views converge in the future the role for ethics in law can grow.

For now we need to focus on what is most important as we could easily get trapped in issues of secondary importance. Moral issues can be contentious and people reason according to their beliefs and political views. The following arguments people with different political views use against each other illustrate that:

  • Leftists might be concerned with the rights of criminals in jail but not of the rights of unborn children who are innocent of any crime.
  • Conservatives might be concerned with the fate of unborn children but as soon as they are born in misery their compassion suddenly vanishes.

It is easy to simplify matters in this way. This is how issues are framed. And as soon as you are dragged into a dispute it is hard to stay moderate. Moral issues are often complicated. Euthanasia can be an act of compassion but it can be turned into a way of getting rid of undesired people. Perhaps criminals have had a poor life and never realised that they had a choice but making them suffer can give victims a sense of justice.

Leftists and conservatives have different moral views and can be passionate about them. This is difference of opinion rather than an absence of morals from one or both sides. Rational debates might help to clarify these matters and balance the laws on these issues.

In some areas ethics are needed urgently because the capitalist market economy is destroying our planet. So the primary focus should now be business and law. Research has shown that CEO is the job with the highest rate of psychopaths while lawyer comes in second,1 possibly because traders in financial markets were not included in the survey. Media came in third, possibly because it was a British research. Salespeople make a rather unsurprising fourth position.

Vulture capitalism

Rural areas in the United States are turning into an economic wasteland. Closed down factories and empty malls dominate the landscape. Communities are ravaged and drug abuse is on the rise. One reason for this to happen is that jobs are shipped overseas. Several factors contributed to this situation, but a major cause is CEOs not caring for people and communities. In many cases other solutions were possible.

Paul Singer is wealthy hedge fund owner. He made a fortune by buying up sovereign debt of countries in trouble such as Argentina and Peru at bargain prices and starting lawsuits and public relation campaigns against those countries to make a profit on these debts at the expense of the taxpayers of these countries.2

In the United States Singer bought up stakes of corporations in distress. He then fired workers so that the price of his shares rose. In the case of Delphi Automotive he and other hedge fund managers took out government bailouts, moved jobs overseas, and cut the retirement packages of employees so they could make a huge profit.2

Vulture capitalists prey on patients too. They buy patents on old drugs that are the standard treatment for rare life-threatening diseases, then raise the price because there is no alternative. Martin Shkreli was responsible for a 6,250% price hike for the anti-retroviral drug Daraprim. Many people died because of his actions.3 Perhaps he should be in jail for being a mass murderer but he is not because what he did is legal.

Profiteering at the expense of the public

In the years preceding the financial crisis of 2008 there was a widespread mortgage fraud going on in the United States. Few people have gone to jail because much of what happened was morally reprehensible but legal. Financial executives and quite a few academics share this view.4 And so nothing was done. Perhaps fraud can be proven some day but that may take years if it ever succeeds.

Healthcare is another domain for fraudsters and unscrupulous corporations. Patients are often not in a position to bargain. Perhaps that is why privatised healthcare performs poorly compared to government organised healthcare. In 2015 the Dutch government introduced the Social Support Act, making municipalities responsible for assisting people who are unable to arrange the care and support they need themselves.5

The municipalities were ill-prepared so fraudsters took advantage of the situation. Most businesses are legitimate but several private contractors enrich themselves at the expense of taxpayers and people in need. The Dutch prosecution is overwhelmed by fraud cases and it is not always possible to get a conviction because of loopholes in the law. Until these loopholes are fixed, several schemes remain legal.6

In the United States hospital bills are feared. A routine doctor visit for a sore throat can result in a $ 28,000 medical bill.7 And so many people in the US go without healthcare because they can’t afford it. Efforts to reform healthcare in the US haven’t succeeded, perhaps because those who send $ 28,000 bills for sore throats have plenty of money to bribe politicians into keeping the US healthcare system as it is.

Attributes of the law

First we have to recognise why it is so hard to prevent these things from happening. On the political front it is because once politicians are elected, they can do as they please until the next election. Lobbyists prey on them. Citizens have few means of correcting politicians, except in Switzerland. The Swiss have direct democracy. Swiss citizens can intervene in the political process when they see fit and fix laws if they think that is needed. Direct democracy might help to fix many of these issues.

Laws are often made with the best intentions but it is not possible to test them in a simulation to see how they will work out in practice. So once laws are enacted, unexpected problems pop up. The process of law-making is slow and it can take years before issues are fixed, at least if they are fixed at all because law-making is often political process, and that can make it rather complicated.

Even more importantly, the underlying principles of law benefit the savvy. The system of law is the way it is for good reasons. No-one should be above the law and people as well as businesses should not be subject to arbitrariness. The rule of law implies that every person is subject to the law, including lawmakers, law enforcement officials, and judges. It is agreed that the law must be prospective, well-known, general, treat everyone equal, and provide certainty. Only, in reality not everyone is treated equally.

Laws being prospective means that you can only be convicted for violation of laws in force at the time the act was committed. Legal certainty means that the law must provide you with the ability to behave properly. The law must be precise enough to allow you to foresee the possible consequences of an action. Businesses prefer laws to stable and clear. Corporations invest for longer periods of time. If laws change they may face losses. If laws are not clear, investments won’t be made, and a country may end up poorer.

With the rise of neo-liberalism came the era of shareholder capitalism. Making profits became a goal in itself. Greed was considered good. Wall Street traders and CEOs were seen as heroes even when they were just psychopaths outsourcing jobs for profit. There was little consideration for the planet, people and communities. Consumers preferred the best service at the lowest price so businesses were pressed into cutting costs and moving jobs to low-wage countries. Ethics in business were a marginal issue at best.

A bigger role for ethics

More and more people believe that ethics should play a bigger role in business. Activists pressure corporations. That may not be enough. Corporations must be competitive and can’t make real changes if that increases their costs. Levelling the playing field with regulations is an option but that may not be sufficient. The law needs a morality clause, making unethical behaviour unlawful, even though the action itself is not explicitly stated as forbidden in the law. That increases the cost of unethical behaviour.

A randomly selected jury of laypeople could make verdicts in these issues. Perhaps it is better that the legal profession stays out of these matters because it is not a legal matter in the first place. There are a few issues that come with a morality clause. Ethics in business can be a political issue. People may differ on what kind of behaviour is ethical and people may differ on what kind of unethical behaviour should be punished.

Introducing a morality clause to enforce ethical behaviour in business affects legal certainty. It will be harder for businesses to predict whether or not a specific action is legal. Business owners may incorrectly guess moral sentiment and believe they did nothing wrong. The uncertainty that comes from that might reduce the available investment capital for questionable activities. But that may not be so bad. And if immoral profits and bonuses from the past are to be confiscated, it affects the prospectiveness of the law.

International treaties like the Transatlantic Trade and Investment Partnership (TTIP) have been set up to accommodate the unethical practises of corporations and to protect those corporations from making those unethical practises unlawful. Because that is often what reducing the regulatory barriers to trade like food safety laws, environmental legislations and banking regulations often amounts to in practice.

In most cases it can be known on beforehand what actions are unethical. For instance, investors in corporations that extract fossil fuels should know that burning fossil fuels causes climate change. They are gambling with the future humanity. So if some countries decide to outlaw the use of fossil fuels then these investors should not be compensated.

Perhaps you have serious doubts about this proposal as it upsets the very foundations of the current system of law. And I can imagine that you think: “Where does this end?” But there is something very wrong with the current system of law. Business interests often take precedence. So do you want the law to protect the psychopaths who maximise their profits at the expense of people and the planet? And do you really think that the law can be made without failures so that corporations and savvy people can’t exploit them?

Featured image: Of course the laws are always functional. Loesje. Loesje.org.

1. The Wisdom of Psychopaths: What Saints, Spies, and Serial Killers Can Teach Us About Success. Kevin Dutton (2012).
2. The death of Sidney, Nebraska: How a hedge fund destroyed ‘a good American town’. Charles Couger, Alex Pfeiffer (3 December 2019). Fox News. [link]
3. Vulture capitalists prey on patients. The Sacramento Bee (22 September 2015). [link]
4. How Mortgage Fraud Made the Financial Crisis Worse. Binyamin Appelbaum (12 February 2015). New York Times. [link]
5. Social Support Act (Wmo 2015). Government of the Netherlands. [link]
6. Gemeenten starten onderzoek naar Albero Zorggroep. Eelke van Ark (31 October 2019). Follow The Money. [link]
7. How a routine doctor visit for a sore throat resulted in a $28,000 medical bill. CBS News (31 December 2019) [link]

Jokers on Files.

Joking jokers

After working for Cap Gemini I became a freelance IT specialist in 1997. In 2002 there weren’t any freelance jobs available so I started as a database administrator at a government agency near home. Most people in the Netherlands know about the agency because it processes traffic fines for the police. It didn’t take long before I was tested. Already on the second day one of the main systems crashed, leaving a corrupt database. After two days of research I didn’t find the exact cause but it probably was a bug in the Oracle software so I advised to upgrade the database software to see if it solved the issue.

Instead management turned the situation into a crisis and to set up a multi disciplinary task force to deal with it. They decided that the cause of the crash should be found. Every day at 10 AM there was a meeting to discuss the state of affairs. Every day I proposed to upgrade the database software. And every day the proposal was brushed aside. After two weeks the cause had yet to be found. Managers were getting desperate so finally they were willing to consider my suggestion. Upgrading the database software ended the crisis. This turned out to be a harbinger of things to come.

The situation provided an interesting learning opportunity. Solving a crisis is more important that finding its cause. In times of crisis you may be forced to try the best option even though you are not sure it will work.

It was not possible track what access rights were granted and to whom. At the time it was an urgent issue and nobody was taking action. In 2004 I built an account administration system named DBB that automated granting and revoking access rights for all the main systems based on job roles. Nobody ordered me to do this but there was a business need. Nevertheless DBB faced stiff opposition and red tape. In 2005 it was introduced in a sneaky way with the help of the people who were responsible for granting access rights.

The logo of DBB was a drawing made by my wife Ingrid. It features jokers grinning at a set of file folders symbolising bureaucracy. Bureaucrats considered it a rogue system. For more than ten years they were busy scheming and devising plans to replace DBB. Two projects were started to this aim. The first one was halted prematurely because the complexity of the matter had been underestimated. In 2016 a new project team realised that it was pointless to replace DBB as it was doing a good job and was costly to replace. After eleven years the main systems of 2005 had were of age and were expected tp be decommissioned within a few years, so that DBB could retired together with those systems. Indeed DBB made a joke out of bureaucracy so the logo had been apt.

But DBB was also joking me in a rather peculiar way. In June 2010 someone requested me to drop a user. This was an unusual request as normally DBB took care of that. In fact, this hadn’t happened for several years. The username I had to drop was ELVELVEN. If you read that aloud, you say eleven elevens in Dutch, a reference to the 11:11 time-prompt phenomenon. Usernames were made up of the first one or two characters of the employee’s first name followed by the last name in full. To me 11:11 signals a combination of two related unlikely events that are related. And indeed, the joke had a part two, and it was even more peculiar.

In 2014, when I was testing an improvement to DBB, a test signalled that an illegal account had sneaked into our systems. The username was the first character of the first name followed by the last name of the lady of the dormitory. If she had been employed with us, this would have been her username. And her name isn’t common like Jane Doe so this is peculiar, even more so because it was the only username that popped up. It turned out that a guy with the same last name as hers had been employed with us. He had the same first initial. The account wasn’t illegal. I had mixed data from two different dates for the test, which made it appear that way.

In 2005 my manager promised me a promotion. He believed there should be a senior rank for experienced database administrators. He noticed that I had managed to introduce the account administration system DBB. “You have vision and you make things happen despite the opposition,” he said and added that he believed I was the best database administrator. Only, he didn’t appear to take any action so I tried to make him put his promise into writing.

That became quite a challenge. I feared I would end up with nothing. I asked him a dozen times to put his promise into writing. Just before he left, after putting some pressure on him, he wrote down that I could only get a minor wage increase, not the promotion he promised earlier. A few weeks later when he had already left, I was summoned to the human resources department. A bureaucrat had come up with a technicality so I couldn’t even keep the minor wage increase. Having it in writing didn’t help. My manager had left and his temporary replacement didn’t care.

When I arrived at home that evening Ingrid told me that a freelance agency offered me a job. This was the first time in a long time. And I was angry. With the benefit of hindsight it was rather peculiar that the agency called exactly on this particular day. I had worked so hard to get the promise in writing because managers and the human resource department weren’t dependable, which the incident demonstrated once more. And so I made a rash decision and resigned. It didn’t take long before I started to have second thoughts. There weren’t many jobs for database administrators near home. There were issues with my son and my physical condition didn’t allow for long travels. There was a new manager and he accepted my change of mind. After a few years of bureaucratic wrangling, the senior rank was established and I was promoted.

Master of my own destiny?

Early 1993 I started to look for a job. My first application was for an IT traineeship at Cap Gemini. There were sixteen vacancies. Some 2,000 people applied and 200 of them were selected for a series of tests. At the tests other applicants were telling stories about assessments, tests and job interviews. The economy fared poorly so there weren’t a lot of jobs. Many graduates were already searching for a long time. It was discouraging to hear their stories so I expected to remain unemployed for quite a while.

That wasn’t meant to be. The tests went well and I was invited for an interview and some more psychological tests. In the train on my way to the interview I a guy who had lived with me in dormitory 389-second-floor came sitting on the seat in front of me . He asked me why I was wearing a suit. I told him about the interview. Then he started to laugh loudly. “Your tie is a mess,” he said. “Let me put in order for you.” He arranged the tie correctly for me.

If this event, which appeared mere chance at the time, hadn’t happened, I may not have been hired. The interview and the tests went well. The misfortune during my student years because of not fitting in groups had made me investigating culture and cultural differences. And so it wasn’t hard for me to translate the expectations of Cap Gemini with regard to its employees into test answers. The test results made it appear as if I fitted perfectly into the corporate culture of Cap Gemini. And so I was hired and sent to a junior programming class to prepare for my first assignment.

My self-confidence was low and I had manipulated the test results to make it appear that I fitted in. I was afraid to turn up and felt unfit for the job. But these feelings receded once the class had started. We learned about programming. I was often joking about a programme I was planning to write. It was named DoEverything as it was meant to do everything, which is a remarkable coincidence. Later I discovered that a programme like that may already exist and that we may live inside it.

My classmates were discussing what type of car they were going to drive once they were on the job. I was the only one planning to use public transport. I was not a model employee. One classmate named Ad, who was a cheerful guy coming from the Eindhoven area, expressed his amazement about me having passed all the tests.

The first assignment was a project at the Groningen office of Cap Gemini. For months we had nothing to do. I often went out late and did some additional training. Our project manager was ambitious. He organised project meetings and demanded progress reports tat he could present to senior management even though there was nothing to do. After a few months, the computers and the work came in, so the project manager was busy managing our work. He constantly demanded progress updates.

It soon became clear that we were going miss our deadline at the end of July. Before he went on a holiday, the project manager arranged a new deadline date at the end of August. Once he was gone, things suddenly went smoothly so we were able to meet the original deadline date in July with ease. When the project manager returned, all the programmes were installed. He was praised by his superiors for delivering a month ahead of schedule. Perhaps he was getting a bonus or a promotion too.

My next job was a database job at a telecommunications company. The company had difficulty tracking what their database administrator was doing. I was hired to reorganise one of their databases. This task was taken out of his hands and was given to me, a novice without experience. For that reason he didn’t like me from the start. To make matters worse, I wasn’t following his advice because he was a bungler. That was the reason I was hired in the first place.

There was a fuss because of my disturbed relationship with the database administrator. Cap Gemini sent me to a training called Professional Skills. I was not politically sensitive. It seemed better not to let political expedience stand in the way of doing what’s right or saying what needs to be said. But framing things positively can contribute to a better atmosphere. This is what political correctness is about. Cap Gemini also stressed that I was the master of my own destiny. It was one of their company slogans.

After moving to Sneek I stared to look for a job near home. There was a vacancy for a software designer at an insurer nearby in Leeuwarden. It later turned out that the job included being a project leader. The insurer had split up the IT department in smaller teams that worked on a group of systems for a specific business unit. Every few weeks or so we planned what we were going to do for the next few weeks. The business unit determined the priorities. It worked great because there were few political games like business units competing for resources. The people in the team knew what they had to do so I felt redundant. There is no point in managing something that goes well by itself.

The department was well organised, and unlike anything I had seen before. The atmosphere was friendly. Only I was accustomed to grim conditions so I felt awkward. Even though it may have taken some time I probably could get accustomed to a friendly atmosphere, but not to the job itself. All those documents, meetings, and priorities were boring. Designing and building information systems was much more fun. I had good qualifications for Oracle but the insurer didn’t use Oracle. And so I decided to try my luck as a freelance Oracle developer and database administrator. After all, I believed to be the master of my own destiny. But an ominous incident suggested that I was not.

Featured image: Cap Gemini logo