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Bar Journal - Winter 2005

Beyond the Rule of Law

By:

"We are firmly convinced . . . that with nations as with individuals our interests soundly calculated will ever be found inseparable from our moral duties . . .."

Thomas Jefferson,
Second Inaugural Address (1805)

INTRODUCTION

Self-reflection can be a reward for having to explain yourself to others. For the past several years, I have worked with Russian judges and administrators in the New Hampshire Supreme Court's Rule of Law partnership with the Russian oblast of Vologda, part of the Russian-American Rule of Law Consortium, a volunteer association of legal communities in several American states and Russian regions. As a lawyer, I am expected to talk about formal laws openly adopted in a democratic process and uniformly applied. These ideas are important. Formal law expresses our expectations about rights and responsibilities and provides a mechanism for protecting individual liberties and resolving conflict. But I have become convinced of the preeminent importance of a concern that many might think is beyond the bounds of what I am expected to discuss as a legal "expert": the importance of virtue.

The innumerable social and business interactions in which we engage depend on norms of behavior that enable us to trust each other to keep our word and to act in good faith. These norms must flourish along with well-reasoned formal laws and legal procedures, not just as a moral imperative, but as an essential component of the free, just, and prosperous society that a rule of law is intended to achieve. The following explains my conclusion, first by considering the meaning of the "rule of law" and its limits; then by briefly examining the essential nature of extralegal norms that govern behavior; and finally by looking at what these norms mean for the prospects of achieving the goals of a rule of law.

THE "RULE OF LAW" AND ITS LIMITS

According to Chief Justice John Marshall's notorious phrase, "The government of the United States has been emphatically termed a government of laws, and not of men."1 The United States Supreme Court continues to refer to the United States as "a society devoted to the rule of law."2 Citizens contribute valuable time and effort to "rule of law" programs, sometimes at risk to themselves and those involved in other countries. What do we mean by this notion of a "rule of law" to which so much is devoted?

This is how economist Frederick Hayek described what the "rule of law" means to individuals living within it: "Stripped of all technicalities, this means that government in all its actions is bound by rules fixed and announced beforehand-rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one's individual affairs on the basis of this knowledge."3 Predictability of constraint is essential to liberty; yet, more than predictability is implicit in a "rule of law." Other powerful concepts embedded within the notion of a government "of laws" include a conviction that the law, to be legitimate, must be adopted through an open and democratic process, and it must be interpreted by an independent judiciary. The United States Agency for International Development, which sponsors the Russian American Rule of Law Consortium, expresses some of these broader concepts when it says that "[t]he term 'rule of law' embodies the basic principles of equal treatment of all people before the law, fairness, and both constitutional and actual guarantees of basic human rights. A predictable legal system with fair, transparent, and effective judicial institutions is essential to the protection of citizens against the arbitrary use of state authority and lawless acts of both organizations and individuals."4

Just laws and effective judicial institutions are necessary, but liberty and prosperity depend on more. Institutions can use formal laws to suppress. In 1933, Hitler used the "The Law for Removing the Distress of People and Reich" to give himself the unfettered power he needed for fascist rule.5 The Soviets, who also presided over a brutally repressive regime, were expert at adopting formal rules. Their constitution cynically proclaimed that "[c]itizens of the USSR have the right to protection by the courts against encroachments on their honor and reputation, life and health, and personal freedom and property."6 Yet encroachment upon life, liberty, and property occurred at the pleasure of those who controlled the state and party apparatus.7

We know that lofty constitutional principles and comprehensive legislative schemes cannot by themselves guarantee rights and freedom. Formal law does not constrain harmful tendencies or protect individual liberties unless it coexists with mutual respect for individual rights within society. Thomas Jefferson warned about confusing observance of formal law with liberty. He said that "rightful liberty is unobstructed action according to our will within the limits drawn around us by the equal rights of others. I do not add 'within the limits of the law' because law is often but the tyrant's will, and always so when it violates the rights of an individual."8 Jefferson thereby reminded us that law can be something worse than an empty or cynical exercise, and time has proved him right. To cite just one example from history, economist Frederic Bastiat, while reflecting on eighteenth century counter-libertarian movements, observed that "the law has been applied to annihilating the justice that it was supposed to maintain; to limiting and destroying rights which its real purpose was to respect. The law has placed the collective force at the disposal of the unscrupulous who wish, without risk, to exploit the person, liberty, and property of others. It has converted plunder into a right, in order to protect plunder."9

Jefferson and Bastiat, philosophers of liberty, knew that formal rules can oppress as well as liberate. This is true not only because law can be a tool for the tyrant, but also because legal rules lose their essential predictive function when they become too distant or unwieldy. A rational concept of "rule of law" cannot mean governance of all behaviors by fixed legal pronouncement. The power of formal law and legal process cannot possibly reach all aspects of interactions among members of a society. As Frederick Hayek said, "rule of law" "means, not that everything is regulated by law, but, on the contrary, that the coercive power of the state can be used only in cases defined in advance by the law and in such a way that it can be foreseen how it will be used."10 The lawyers' Rules of Professional Conduct acknowledge the limitations of rule formalization in the opening comments, which observe that "no worthwhile human activity can be completely defined by legal rules."11 Those who fail to appreciate this limitation do so at great risk. History is full of futile attempts to build a utopia by government design, including by the communist regime in Russia.12

Although many look to formal law for solutions, in practice we understand the limitations of formal law and legal process. Most exchanges necessarily occur without any government involvement and depend on cooperation and mutual trust.13 As social law scholar Stewart Macaulay observed, contrary to what some may want to believe, "we must remember that the public is somewhat informed, often cynically aware of the true nature of law in action."14 People can be realistic-often skeptical-about the courts' limited capacity to police behavior.15 The legal process often is seen as too inefficient and unpredictable to be the guidepost for decisions.16

Ironically, the limitations of formal law and legal process in some ways encourage individuals to abide by their commitments, but not because of confidence that courts will enforce commitments. As legal theorist Eric Posner observed, agreements are a "commitment device" because individuals fear the costs and uncertainty of a dispute resolution process and the possibility that business prospects will be diminished by harm to reputation.17 Participants in a market economy rely on others' willingness to do business with them, a willingness that can be affected negatively by a reputation for bad behavior.18

The limitations of formal law and procedure-in their reach and function-cause us to rely to a great extent on other constraints to govern our actions in our relationships. As Nobel Prize-winning economist Amartya Sen has explained, "Successful operation of an exchange economy depends on mutual trust and the use of norms-explicit and implicit. When these behavioral modes are plentiful, it is easy to overlook their role."19 But, as he also said, "A basic code of good business behavior is a bit like oxygen: we take an interest in its presence only when it is absent."20 We depend on behavioral norms to facilitate our interactions and constrain harmful tendencies, and these norms deserve attention as much when they are present as when they are absent.

NORMS ARE INESCAPABLE

Formal law sometimes defers to values and norms. For example, unfair trade practices acts prohibit deception and authorize multiple damage awards and attorneys' fees compensation.21 Courts interpret this as providing a sanction against "rascality," conduct that "'would raise an eyebrow of someone inured to the rough and tumble of the world of commerce.'"22 Businesses have been struck with substantial verdicts based on perceptions of rascality.23

The law governing common sales also adopts boundaries of good faith. The Uniform Commercial Code declares that "[e]very contract or duty [governed by the Code] imposes an obligation of good faith in its performance or enforcement,"24 which means "honesty in fact in the conduct or transaction concerned."25 The UCC also authorizes courts not to enforce a contract that is "unconscionable,"26 which courts have used to invalidate contractual agreements based on perceived unreasonableness.27

Even in the criminal context, our legal system acknowledges that the formal laws must sometimes defer to behavioral norms. This can be seen with "jury nullification," by which a jury decides a case based on the jury's sense of what is right without regard to the court's instructions. As one court put it, "The pages of history shine on instances of the jury's exercise of its prerogative to disregard uncontradicted evidence and instructions of the judge."28 Judge Learned Hand described the jury as "introduc[ing] a slack into the enforcement of law, tempering its rigor by the mollifying influence of current ethical conventions."29

Despite the inseparability of law and moral standards in such core legal building blocks as commercial contracts and juries, the dominant school of legal thought strives to isolate morality from formal law analysis. Oliver Wendell Holmes, Jr., was the pathfinder in this movement. In his 1897 article The Path of the Law,30 he launched a quest for "legal realism" based on what has been called "moral skepticism." Although acknowledging that a community would resist laws that violated basic moral senses, Holmes said that confusing legal and moral ideas will render the law useless in its essential role of providing predictable rules. He argued that the law should be seen scientifically as "the prediction of the incidence of the public force through the instrumentality of the courts."31

Whatever the merits of social realism in the development and application of coherent formal rules, it necessarily falls short of providing a complete picture of how a society is governed. Once it is analytically distinguished from formal law, morality becomes isolated and is left unexamined. 32 Such an exercise also causes us to fail to appreciate the extent to which morality legitimates law and governs our extralegal behavior.

THE NATURE OF THE NORMS

Norms and moral codes that guide behavior have spiritual, philosophical, and social origins, and many bright minds and devout souls have searched for clarity about what is right. For our purposes, Aristotle's philosophy is a solid enough foundation for the discussion, for several reasons. It is consistent with predominant moral concepts. It profoundly influences the development of democratic government. It also puts virtue in the context of relationships, which is the sense in which morality results in essential extralegal constraints.

Importantly, Aristotle saw moral virtues as habits that moderate between extremes. He said virtues are not instinctive, but must be learned and practiced within a culture.33 As Polish philosopher Leszek Kolakowski explains, virtues should be defined "as moral skills essential for life in a human community, [that] in one important respect resemble other, non-moral skills. . . . We learn virtues by being brought up in a community where they are practised, in the same way as we learn to swim, or to use a knife and fork."34 Those who achieve these virtues aim their actions, in Aristotle's terms, "to the right person, to the right extent, at the right time, with the right motive, and in the right way."35

Of the virtues identified by Aristotle, two in particular are at the heart of shared concepts of social norms of interactive behavior: truthfulness and justice.36 The person who loves truth, Aristotle said, will be "truthful where nothing is at stake, will still more be truthful where something is at stake; he will avoid falsehood as something base, seeing that he avoided it even for its own sake."37 Justice is a closely related concept, which requires, among other things, keeping faith in one's agreements.38 Honesty and justice coexist in someone who acts in good faith.

Fundamentally, these virtues put our behavioral choices in the context of our relationships with others. Even those who have never considered philosophical definitions tend to share this conviction, as expressed in the "Golden Rule," by which we know it is right to treat others as we would want to be treated ourselves, a profound imperative on which the world's cultures generally have agreed.39 We cannot follow this imperative without also being honest about ourselves-to use Shakespeare's brilliant phrase, "This above all,-to thine ownself be true; And it must follow, as the night the day, thou canst not then be false to any man."40 Or, as Kolakowski puts it, "we should always be on guard against self-deception and self-satisfaction, and scrupulous in examining the true motives of our actions."41 We must do so to avoid delusion about what is honest and just.

LAW AND THE UNSCRUPULOUS

The pursuit of virtue, therefore, includes a commitment to truth and justice as a behavioral norm. Obviously, the existence of these norms varies across and within societies and over time. Yet dominant norms are apparent and they are important to the prospects for the human condition.

We know that the norms in the United States are complex and often conflicting. Some people succeed based on honest, hard work; we also know that unscrupulous behavior occurs and is sometimes rewarded with money or power. An American studies text used in Russia gives the following realistic view of this mainstream perspective: "There has always been a belief that only fair competition based on hard work and a high level of competence ensures success; and vice versa, if a competitor does not play fair and takes unfair advantage of his customers, he will lose out in the long run. . . . [T]hough the majority of Americans believe that the ideals of free competition, equality of opportunity, hard work, and individual freedom are all exemplified throughout business, there are many who understand that very often American business does not live up to these principles."42

The existence of unfairness and dishonesty in the United States is a serious problem, but many other legal regimes have more reason for concern. In Russia, unscrupulous behavior is widespread in official and commercial affairs. The Transparency International "corruption index," which is based on surveys about perceptions held by residents and expatriates in business and academia, ranks Russia's index at 2.7 of 10, indicating a "high level of corruption," compared to 7.5 for the United States.43 Russia also has one of the highest scores for perceptions of bribery within business firms.44 As one analyst said, "Russian organized crime . . . continues to strangle legitimate business practices, and more than half the Russian commercial and banking sectors remain under its sway. . . . The Russian Federation is now dominated by a stifling blend of corrupt government officials, shady businessmen, and criminals."45

The impediments to reform in Russia are readily apparent in the privatization of real property. Despite the enactment of sweeping federal legislation, only a very small part of real property has been transferred, and most of it has been to groups who were in favor as privatization began. Ordinary citizens, especially outside the major cities, have seen little improvement in their living conditions. They still reside in the same type of dilapidated apartments that they were allocated by the communist bureaucrats. A more recent trend has been victimization of ordinary citizens. Thousands have been lured or threatened into conveying their apartment rights to gangsters, some being transported to the countryside where they are abandoned or murdered.46

Corruption pervades other aspects of Russians' lives. Commerce conspicuously operates through a system of organized crime protection. Disputes are often resolved violently. Even among Russian authorities who seem honest, at least to an outsider's eyes, there are ominous signs of corruption. Government officials with meager salaries enjoy residences and vacation dachas that are strikingly comfortable compared to the small and crumbling apartments in which most others live.

Russians are cynical about their own official and business cultures. While they regard business success highly, few would believe that success is possible through honest competition. Deceit is seen as an essential survival skill. As an astute observer put it, "There is a saying in Russia: 'Nothing is permitted, but everything is possible.' This more or less sums up the Russians' attitude to rules and regulations of all kinds: they are to be bent, broken, evaded or ignored. For example, it irritates Russians profoundly if their passenger fastens his seatbelt."47 As the same observer also said, "The fact is that there is virtually no reliably-interpreted system of law in Russia at present. Basically, the thing to remember with Russians is that everything is negotiable and can usually be resolved, if necessary by resorting to the time-honored device of the offer of a bribe."48

Honest, hard-working Russians continually run into corrupt authorities. In cities, police routinely detain drivers for no cause except payment of the expected bribe. In villages, diligent farmers are pillaged by others who callously reply to objections with this familiar refrain: "You have more than you need, so don't complain." Complaints to the authorities are dismissed with mockery of the farmers' naivete.

Norms of corrupt and unscrupulous behavior stunt the development of a market economy. Economist Armatya Sen, who stresses the need for virtues in the development of capitalist economies, notes that the behavioral norms in post-Soviet Russia have been an impediment to improvement of conditions, leading to the "emergence of Mafia-style operations."49 Each instance of corruption dilutes the capacity for individuals to engage in the innumerable interactions that must be based on trust, and encourages others to engage in similarly destructive behavior to avoid being disadvantaged in a system that promises to reward guile and force more than industry and creativity.

The absence of norms of honesty and justice within official life prevents the development of essential rules of law. The protection of intellectual property through trade secretsillustrates this problem. A "trade secret" is economically valuable information, such as a formula, program, or technique that is not generally known to others or readily ascertainable by others by proper means and that is the subject of confidentiality by its owner.50 Unlike patents, copyrights, and trademarks, no registration occurs with a trade secret-the law reinforces private commitments to hold information in confidence. As with many formal rules, the law of trade secrets may constrain those who wish to avoid the costs and uncertainty of litigation and harm to their reputation. However, legal proceedings rarely can protect secrets; a lawsuit is likely to occur only after the secret has already been stolen or divulged. The value of trade secrets ultimately depends on the willingness of those involved to honor their promises.

No surprise, then, that much of Russian business culture has no working concept of legally protected trade secrets. Without assurances of confidentiality, employers cannot trust their employees with secrets, and employees in turn do not trust their employers enough to share their ideas with them. We have seen this first-hand in Russia. Russians have approached us eager to share their ideas, having more trust in us to keep their information confidential than in their own associates.

Tax evasion is another example of the problems caused by dishonesty. Those in Russia who honestly report and pay taxes are generally regarded as fools. During our discussions about property taxes, our colleagues, including senior government authorities responsible for property management, were incredulous at the thought that citizens would honestly self-report payments made in a real estate transaction when a tax was based on that amount, as with the New Hampshire transfer tax.

Honesty in official life is not easily embraced by a society that has experienced so much deceit and in which no one could trust anyone else in official matters. There are notorious examples. The Soviet government published photographs of cosmonaut teams in which individuals were erased by airbrush as they were eliminated from the program, an illustration of official contempt for public trustfulness.51 As another example, the government compelled its citizens, at the risk of deportation to the Gulag, to demonstrate devotion to a cult of personality in which Stalin was to be worshiped as the greatest genius in world history.52 Those in power in any system tend to distort facts to suit their desired ends, but these are examples of how the Soviet leadership engaged in a form of dishonesty as hideous as the "Newspeak" of George Orwell's 1984. This legacy is not easily shed.

CONCLUSION

Those working on rule of law reforms face a difficult battle. Honing formal laws and refining the legal process will not cause individuals to be able to rely on each other to deal honestly and in good faith. Collaborative programs on sentencing procedures, jury trials, and court process convey useful information to those who are implementing reforms, but can do little to change social norms.

On the other hand, a program agenda explicitly focusing on the importance of virtue would be presumptuous about the speakers' qualifications and it would be unlikely to be well received. Neither does talking about virtuous behavior persuade others of its existence or its importance. The most persuasive argument is by example. Toward this end, for instance, the American judges with whom our Russian colleagues interact show in many ways how they are sincerely committed to honesty and justice. Our Russian colleagues have spent time with American professionals and business leaders who are industrious, honest, and compassionate, as well as successful. This type of interaction may be the most valuable contribution.

I began this article with a comment about the opportunities for self-reflection that result from working with others. My conclusions about the importance of extralegal constraints have caused me to consider not only the existence of such constraints in my experience, but also the extent to which they are changing. The poet Oliver Wendell Holmes once said that "[t]he great thing in this world is not so much where you stand, as in what direction you are moving." I am troubled that when I speak with Americans about the importance of honesty and good faith in business transactions, I must first convince them that I am not kidding. Some skepticism is deserved-the lure of money and influence lead many to cross the line between aggressive competition and unscrupulous opportunism. Yet there must be abundant honesty and good faith, even in this highly competitive society, for the system to have been able to survive. But are we too complacent about the importance of virtue to our future?

Abraham Lincoln gave wise advice, as he so often did, when he said to a new lawyer: "Strive to be an honest lawyer. If you can't be an honest lawyer, be honest." This advice points out the importance of being vigilant about honesty and fair dealing as something more than a desirable professional constraint. The Rules of Professional Conduct prohibit a lawyer from "engag[ing] in conduct involving dishonesty, fraud, deceit or misrepresentation,"53 but the Rules set limits on a lawyer's "professional role" and are not intended to supplant all moral and ethical considerations.54

Lawyers have opportunities to exemplify virtuous behavior and demonstrate their commitment to it. By this I do not mean conspicuous public service or charity-whether done out of a generous spirit or self-promotion-but acts of virtue no one will applaud. As a side benefit, morality considerations can guide wise decisions in contentious circumstances. As psychologist James F. Welles said, "An explicit discussion of the morality of a contemplated act might also prevent stupid behavior. . . . Morality is an underlying, defining factor in any controversial endeavor, and anyone who ignores it may well wish he had not."55

No one can be confident about reversing the course once corruption, deceit, and disrespect for others have become epidemic. The presence of dishonesty, meanness, and corruption within our culture should not numb us to the virtue that exists or to the importance of the struggle. Judges and lawyers in particular have the education, and should have the insight, to know the importance of contributing to the pursuit of a rule of law and virtue.

Endnotes

  1. Marbury v. Madison, 5 U.S. 137, 163 (1803).
  2. Dretke v. Haley, 124 S. Ct. 1847, 1856 (2004) (Kennedy, J., dissenting).
  3. Frederick A. Hayek, The Road to Serfdom 72 (1944).
  4. USAID, Strengthening the Rule of Law & Respect for Human Rights (available at http://www.usaid.gov/our_work/democracy_and_governance/technical_areas/rule_of_law {last visited Sept. 16, 2004}).
  5. See William L. Shirer, The Rise and Fall of the Third Reich 198 (1960).
  6. Constitution of the Soviet Union, art. 57(1) (1977) (available at http://en.wikipedia.org/wiki/Constitution_of_the_Soviet_Union {last visited Sept. 16, 2004}).
  7. The Soviet Constitution also contained the condition that "[e]njoyment by citizens of their rights and freedoms must not be to the detriment of the interests of society or the state, or infringe the rights of other citizens." Id. art, 39(2) (1918 and 1977). This is a trump card that could be played for brutal oppression by those claiming the authority of society or "the state."
  8. Letter from Thomas Jefferson to Isaac H. Tiffany (April 4, 1819) (available at http://lcweb2.loc.gov/ammem/mtjhtml/mtjhome.html, at Series 1 General Correspondence October 27, 1818 to May 16, 1820, image 462 {last visited Sept. 16, 2004}).
  9. Frederic Bastiat, The Law 9 (1848).
  10. Hayek, supra note 3, at 83-84.
  11. N.H. Rules of Professional Conduct, Scope.
  12. See generally Ludwig von Mises, Bureaucracy (1962) (discussing why bureaucratism necessarily fails).
  13. See, e.g., Bill Anderson, The Virtues of the Free Economy, in The Morality of Capitalism 74, 82 (Mark Hendrickson, ed. 1992) ("the prosperity of the free market order has developed not as the result of theft, but rather by the forces of mutual cooperation and trust between individuals").
  14. Stewart Macaulay, An Empirical View of Contract, 1985 Wis. L. Rev. 465, 481 (1985).
  15. Eric A. Posner, Law and Social Norms 152-53 (2000) ("[C]ourts have trouble understanding the simplest of business relationships. This is not surprising. Judges must be generalists, but usually they have narrow backgrounds in a particular field of the law, and they often owe their positions to political connections rather than merit.. . . [P]arties could be forgiven for believing that the chance of winning a breach of contract suit is pretty much random.") Whether or not Posner's observations are fair is not as important to this discussion as the fact that many share his views.
  16. See, e.g., Macaulay, supra note 14, at 470-71 ("Even when contract law might offer a remedy, the legal system in operation promotes giving up or settling rather than adjudicating to vindicate rights.").
  17. See, e.g., Posner, supra note 15, at 161 ("People do not cheat because they fear being subject to huge losses; they do not settle because they fear being thought to be cowards.").
  18. See, e.g., Peter J. Hill, Markets and Morality, in The Morality of Capitalism, supra note 13, at 57, 59 ("participants in a market economy-buyers and sellers-continually look for areas of agreement where they can get along, rather than concentrating unproductively on the areas of disagreement").
  19. Amartya Sen, Development As Freedom 263 (1999).
  20. Id. at 264.
  21. N.H. Rev. Stat. Ann. 358-A (1994).
  22. Barrows v. Boles, 141 N.H. 382, 390, 687 A.2d 979, 986 (1996) (quoting Levings v. Forbes & Wallace, Inc., 396 N.E.2d 149, 153 (Mass. App. Ct. 1979)).
  23. E.g., In re Globe Distributors, Inc., 129 B.R. 304 (Bankr. D.N.H. 1991); Anthony's Pier Four, Inc. v. HBC Associates, 583 N.E.2d 806 (Mass. 1991).
  24. N.H. Rev. Stat. Ann. 382-A:1-203 (1994).
  25. Id. at 382-A:1-201(19).
  26. Id. at 382-A:2-302.
  27. James J. White & Robert S. Summers, Uniform Commercial Code 4-9 (4th ed. 1995).
  28. United States v. Dougherty, 473 F.2d 1113, 1130 (D.C. Cir. 1972).
  29. United States v. Adams, 126 F.2d 774, 776 (2d Cir. 1942).
  30. Oliver Wendell Holmes, Jr., The Path of The Law, 10 Harv. L. Rev. 457 (1897).
  31. Id. at 457.
  32. See Lon L. Fuller, The Morality of Law 4 (rev. ed. 1969) ("the legal mind generally exhausts itself in thinking about law and is content to leave unexamined the thing to which law is being related and from which it is being distinguished").
  33. Aristotle, The Nicomachean Ethics bks. IV-V.
  34. Leszek Kolakowski, Freedom, Fame, Lying, and Betrayal 48 (1999).
  35. Aristotle, supra note 33, at bk. II, ch. 9.
  36. Id. at bks. II, V.
  37. Id. at bk. IV, ch. 7.
  38. Id.
  39. Immanuel Kant: "There is . . . only a single categorical imperative and it is this: Act only on that maxim through which you can at the same time will that it should become a universal law." Immanuel Kant, The Metaphysic of Morals 17 (Cambridge Univ. Press ed. 1996). Jesus Christ: "Therefore all things whatsoever ye would that men should do to you, do ye even so to them: for this is the law and the prophets." Matthew 7:12. Confucius: "What you do not want done to yourself, do not do to others." The Confucian Avalects 15:23. Buddha: "Hurt not others in ways that you yourself would find hurtful." Udana -Varga 5.1. Mohammed: "None of you truly believes until he wishes for his brother what he wishes for himself." Sunnah. The Talmud: "What is hateful to you, do not do to your fellowman. This is the entire Law; all the rest is commentary." Shabbat 31a.
  40. William Shakespeare, Hamlet act I, sc. 3.
  41. Kolakowski, supra note 34, at 52.
  42. Natalia Tokareva & Victor Peppard, What it is Like in the USA 130-31 (2000).
  43. Transparency International, Transparency International Corruption Perceptions Index 2003 (available at http://www.transparency.org/pressreleases_archive/2003.10.07.cpi.en.html {last visited Sept. 16, 2004}).
  44. Id.
  45. Center for Strategic & International Studies, Russian Organized Crime and Corruption: Putin's Challenge 2-3 (2000) (available at http://www.csis.org/pubs/GOC1Intro.pdf {last visited Sept. 16, 2004}).
  46. Lucy Ash, Moscow's Rampant Property Scams, BBC Radio 4's Crossing Continents (available at http://news.bbc.co.uk/1/hi/programmes/crossing_continents/3832429.stm {last visited Sept. 16, 2004}).
  47. Elizabeth Roberts, Xenophobe's Guide to the Russians 45 (rev. ed. 1997).
  48. Id.
  49. Sen, supra note 19, at 265.
  50. N.H. Rev. Stat. Ann. 350-B:1, IV (1995).
  51. James Oberg, Uncovering Soviet Disasters: Exploring the Limits of Glasnost 156-76 (1988).
  52. Joel Carmichael, A History of Russia 283 (1990).
  53. N.H. Rules of Professional Conduct 8.4(c).
  54. See id. at Scope ("Compliance with the Rules, as with all law in an open society, depends primarily upon understanding and voluntary compliance, secondarily upon reinforcement by peer and public opinion and finally, when necessary, upon enforcement through disciplinary proceedings. The Rules do not, however, exhaust the moral and ethical considerations that should inform a lawyer, for no worthwhile human activity can be completely defined by legal rules.").
  55. James F. Welles, Understanding Stupidity 187 (1986).

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