On top of the continuing assault on Switzerland’s bankers and its banking secrecy tradition, outcries are now being raised against lawyers, many in Geneva, who have helped clients place their assets offshore to avoid paying taxes. Because of the financial crisis, officials in various countries are trying to find ways to recover money sitting in virtual companies in tax havens around the world.
The lawyers defend themselves by saying that they have done nothing illegal; the movement of money to properly registered companies does not break the law in either the sending country or the receiving one. Their spokesmen, often quite eloquently, make the simple case that there is a distinction between something that is illegal and something that is immoral. “I have done nothing outside the rules,” they plead, “and morality is highly relative. You can change the laws in the future, but for the moment we have done nothing wrong.”
What does it mean to do something wrong? The binary distinction between the law and morality is too easy to declare. The law, in Lon Fuller’s term, has an “unfolding purpose.” To separate the law from morality is to say that the normative has nothing to do with the empirical.
Two examples of the danger of separating law from morality are helpful here:
1) If a business school offers a course on Business and Ethics, it assumes that business normally has no ethics or sense of justice in its functioning. To say that making a profit is the only reason for business to exist is to assume that making money for the owners or stockholders is above normative considerations, that making money is not an ethical position in and of itself. This is what separating business from ethics implies. The and between business and ethics is crucial. In this sense, notice the interview in the Tribune de Genève of April 15 with Florian Wettstein, Directeur de l’Institut d’éthique économique de Saint-Gall, translated on the School’s website as the Institute of Ethical Economics; the use of the of is crucial.
2) If a graduate school offers a course on Ethics and International Relations (there are very few), it assumes that international relations has no ethics or sense of justice in its functioning. A British colleague once noted that a course with this title would never be offered in Britain because the normative is always included in the empirical.
For the lawyers to argue that creating offshore accounts is legal but not moral misses much of what the law is all about. When a prosecutor tries to find out who is responsible for a crime, he or she is trying to impute responsibility to someone or something, and the purpose of imputing responsibility is to praise or blame. This is quite different from a scientific discovery of cause and effect. So while the Geneva lawyers may argue that they are legally innocent, they must accept the fact that many people find their activities morally wrong. They must live with being blamed while not being held legally accountable.
The assault on Swiss banking threatens a very profound tradition of Swiss secrecy, much like the Calvinist separation of the private from the public. Greater transparency in the banking world is now knocking at the door of Geneva lawyers. Whether greater transparency is good or bad we leave to another discussion. What we cannot leave at this time is the radical separation of law from morality.