In launching a new investigation of financial crimes, U.S. President Barack Obama is not just taking on a new view of economic policy. He is also changing his view of law.
Previously, Obama has governed with the unstated premise that law is whatever powerful men agree on. This view of law is based on the idea of forming a common ground for avoiding or resolving large-scale conflict and war. It sees law as a kind of civilized overlay for arrangements and institutions that are already there. We see this view of law in Obama’s foreign policy pronouncements especially. When he advises two sides in an armed conflict to agree to some kind of extra-legal action, often involving suspending the constitution, it reflects the thought that only the consent of the armies, that is, the powerful and well-funded, is needed to create new law. The opinions of the majority of people, the ordinary workers not represented in the fighting, barely need to be considered. This view of law can also be seen in Obama’s past inaction on business crimes. In this view, if there is no raging war or other heightened conflict, then there is no need to bring the forces of law to bear at all.
But there is another view of law, in which law is not merely an overlay on society, but part of the foundation of society. In this view, law is part of the security of ordinary people in ordinary times doing ordinary things. If you go to work, purchase a product, sign a contract, or put your money in a bank, you are able to do so in part because the law is there to support such activities. This also means that law is an essential part of a functioning economy. If the force of law is weak, if laws are written in vague terms or are ignored in practice, it leaves people feeling insecure, lacking confidence that it will benefit them to engage in economic activity. People’s economic confidence, then, can be strengthened by enforcing commercial laws that have been left to languish.
When Obama hinted that financial crimes committed by large businesses would no longer be off-limits for law enforcement, he was talking about the kind of law that restores people’s confidence. He was trying to say, “You can get in the game now, because now there is reason to hope that the law will protect you from criminals.”
It was this same revised philosophy that led Obama two weeks ago to oppose Internet censorship bills that would have allowed the government and private companies to take newspapers, blogs, and most other web sites of importance off the Internet without a hearing. The bills in question were vague and badly written, the kind of laws that give lawyers plenty of work but leave workers and businesses in a state of perpetual doubt and uncertainty. That, Obama said, was reason enough to oppose them.
When you are trying to restore people’s confidence, integrity is key. Integrity and law are not words Obama would have put together quite so easily in years past, when he saw law fundamentally as a compromise — a typically unhappy compromise in which integrity was often the first principle to be sacrificed.
Obama’s recent moves, though, suggest that he has come around to the view that integrity is not a luxury, not merely an unreachable ideal, but is fundamental to making law function. To the extent that he can put that view into practice in Washington, it could go a long way toward restoring people’s confidence. It is hard to go to work knowing that everything you have built can be swept away at any moment on the whims of people more powerful than yourself. The integrity of law helps to assure ordinary workers that that isn’t so likely to happen.