Author:Barry Rider
Position:Jesus College, Cambridge, UK
A careful path!
It is often argued by those who wish to extol the virtues of the common law and the
advantages that it offers in promoting trade and commercial activity, in terms of its
certainty it trumps all other systems of law. It is contended that those in the way of
business and especially for those that advise them, certainty in the legal obligations that
they have assented to or which might be imposedupon them, is an over-riding benet. They
know where they stand, and they can properly appreciatethe risks and take action, whether
by insurance or avoidance, to mitigate them. Indeed, this quality was invoked by many a
judge in the formative period of our commercial and, in particular, contract law with an
almost missionary zeal. More recentlya central plank believe it or not, of our relationship
with China, at least in the context of the prosperity initiative, is to persuade them of the
virtues practical and conceptual of the common law not just as a platform for better
trade, but also as the rule of law.
In the domain of criminal law, where the consequencesfor the individual of violating the
law might be dire, certainty hasbeen elevated to almost beyond a virtue it is a prerequisite
upon which notions of autonomy and free will can only appear convincing. Of course,
notwithstanding all this jurisprudence, there have been other agendas, perhaps not always
as well justied. For example, the simple rule that a contracteffected by post was complete
and binding as soon as the acceptance wentinto the mail box, irrespective of whether it ever
arrived in Calcutta or some other exoticreach of the Empire, it had the practical and perhaps
chauvinistic advantage, of establishing that the deal was governed by English law as
applied in the Strand! Indeed,in practice many areas of law, especially in its administration,
there has been built-in wiggle roomand, when things were all a little too clear-cut and,
thus, arguably inexible,there was at least for some, access to equity.
When considering whatis acceptable conduct in trade, the nancial marketsor simply in
personal dealings, perhaps what the law is takento say should only be a factor. Obviously
in the vast majority of cases, whatthe law provides, when clear, is non-negotiable, at least in
terms of consequence. However, it can and probably should in its coercive guise, only
provide a minimum indication of acceptability. In other words we should, in many contexts
aspire to a greater obligation, whetherit is to the market or to those with whom we deal. Of
course, such a generalisation is limited and in dealings with the once all powerful, but
perhaps increasingly suspect state, it has long been accepted that the law is nite and
determinative. Hence, the increasingly ambiguous divide between evading tax or simply
avoiding it albeit manifestly contraryto what was intended. There are a number of issues
related to integrity and especially its promotion, where there are graduations well beyond
and above the law. Indeed, good governance structures aspire to systemically and
procedurally promote conduct at alevel higher than the mundane law. Compliance, both in
its educative and normative roles,also facilitates higher standards albeit in practice rather
more as a tripwire. We have also incorporated into secondarybodies of law which
increasingly govern relationships in nance and business, standards and concepts which
smack of good practice rather than bright line obligations. There was a time, not too long
ago, when those operating in the City of London were almost entirely,as far as the law was
concerned, subjected only to the injunction of honesty. In fact, given the complexity of the
environment within which such issues might have to be determined in retrospect, this was
not even entrusted to common juries. The impact of standardswithin the civil law was also,
Journalof Financial Crime
Vol.25 No. 2, 2018
pp. 246-247
© Emerald Publishing Limited
DOI 10.1108/JFC-01-2018-0013

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