Transcript

Who will protect the Rule of Law? | Ian Holloway | TEDxCalgarySalon

so I want to talk to you this evening about the rule of law that's one of the most evocative phrases we have in our lexicon it is we say one of the things that makes Canada one of the most desirable countries in all the world in which to live but I'm going to suggest to you that the rule of law as we know it the rule of laws we cherish it is not compatible with the technological era that we're living in today now I'm not meaning to paint a doomsday scenario or anything like that but I do think that if we don't supplement the rule of law to take account of how the world has changed then it's not going to be able to do what we want and need it to do in fact if I think that if we don't supplement or augment our understanding of the rule of law then increasingly it will become a toothless tiger will become a little more than a political slogan and I'm going to offer a suggestion that may sound counterintuitive may seem controversial to some of you and that is that the rule of law the survival of the rule of laws we know it depends upon big multinational corporations now that may have startled you so let me say that let me say that again survival of the rule of law as we know it depends upon the support of big multinational corporations now that may seem a tall order in light of some of the egregious examples of bad corporate behavior that we read about and I'm not going to deny any of that I'm not going to paint a pollyannaish view of the corporate culture but I do think that unless we're willing to reconsider our it's going to be very difficult to preserve many of the values that we hold dear in our society and at the risk of sounding hopelessly naive I think that that can happen and that's what I want to talk to you about this evening I want to challenge how you reflexively think about the way in which we protect rights in Canada and in the Western world today but let's start at the beginning what do we mean by the rule of law we use the expression all the time but what do we mean by it the truth is that we can't define it particularly precisely and if you want a living example of that just look at the political debates that are taking place in the United States today there are overlapping and different points of conflict but both sides Democrats Republicans liberals conservatives left-right whichever label you want to use both sides are claiming the rule of law as a justification for their positions and that's one of the funny things about the rule of law that when we make a claim about something and when we base that claim on the rule of law we assume that that's the end of the argument that the other side has no option but to but to concede it's it's kind of the ultimate way of putting the expression in your face sucker in constitutional terms but at base the rule of law as we understand it in the West is about government accountability it's a way of saying that there are rules and procedures that governments have to follow if they want to exercise their power even popularly elected governments have to follow before they can exercise their power the problem though is that it's based upon the rule of law is based upon a system of national governance the ultimate guarantor of the rule of law as we understand it is the courts we say that a country governed by the rule of law means the government and everyone who works for the government has to obey the law just like we all do as as private citizens and if we don't then we can be taken to court so it's a way of protecting us by regulating and controlling the exercise of government power the problem is that the world in which we live today is increasingly increasingly a world in which power is not susceptible to government control this is a picture of my great my great grandmother it was taken in 1907 when she just gotten engaged to be married in fact you can see the ring that she's wearing proudly on her on her finger this was a woman I knew I knew well in my childhood and amazingly she lived to see men walk on the moon but when this photograph was taken she'd never seen an airplane and living in rural New Brunswick she'd seen automobiles maybe a handful of times the Kaiser and the Tsar were still on their Thrones and Britain ruled a quarter of humanity hers was in other words a world of constancy we now know that just a few years later we came close to collectively blowing our brains out in the First World War but to a young woman living in Westmoreland County into Brunswick in 1907 the world seemed about as stable as stable could be to be sure there was uncertainty in her life but that's uncertainty in a farming community was mother nature as far as government was concerned all was constant now she wouldn't have spoken this way but the lodestone of that constancy was the rule of law it was an unstated yet indelible part of the fabric of life but that couldn't be more different than the world in which we live today globalization is an overused term and it's become politically charged it it's blamed for a lot of things today we know that unease about globalization has become a dominant during political discourse in both the United States and Great Britain and in many other parts of the world as well we know that the future of the north american free trade agreement partly depends upon unease about the nature of globalization but the essence of it it seems to me is not going away the essence of globalization as reflecting our increasing interconnectedness as a result of the transportation and the technological revolutions that's with us to stay and I think that's probably a good thing for one thing it gives us access to a much broader range of opportunities than was the case before and that ranges from the mundane like buying groceries to the uplifting like exposure to culture music like art and literature thanks to globalization less wealthy countries are finding it easier to sell their products to more wealthy countries which means that as we speak the global level of poverty is decreasing at a significant at a significant rate and if you believe in capitalism it follows that a free market and goods and services encourages competition and that encourages efficiency and that discourage is--we so how could that be a bad thing but even if you don't buy into the idea of globalization as a political philosophy I don't imagine that many of us can seriously contemplate a return to a life without the smartphone and the Internet but both of those things are creatures of an engines driving globalization but there's a paradox and that is that the more global or international if you prefer we are the less possible it is for a national legal system a national government working with a national court system to protect our rights my great-grandmother's life was largely local the clothes she wore things she bought were almost all produced in the Maritime Provinces and she was on to this hundred mile diet thing long before it was trendy I can I can I can tell you that um well how different our lives are today my weekly grocery bill includes vegetables from the United States and Mexico fruit from the West Indies and Central America none of the clothes I wear were made in alberta and very few in canada the automobile i drive was manufactured by a korean company and across the border multiple times in the course of its production the electronics i use with with increasing frequency as i become more engaged with the so-called Internet of Things all contain components from multiple continents so what does this mean what does this mean for the rule of law what does it mean for the rule of law in the 21st century well if her life was largely local so too were the threats to my great grandmother's life people could harm her or her family people could steal her possessions or destroy her possessions if heaven forbid since she was my great grandmother she broke the law herself then she could be punished by the local courts well all of those things can still happen today but because of our interconnectedness we face threats today that were inconceivable to the Canadian of 1907 and chief among these of course is the threat to our privacy that's what the controversy about data mining is all about and because so many of our products are the result of global supply chains that means that the protection of workers rights the protection of human rights depends upon things that happen in other countries but here's the rub the only entity that is capable of exercising real global influence in a direct day-to-day fashion is the global multinational corporation now that will seem like an odd thing to say surely many of you are thinking a big powerful country like the United States or multilateral entity like the European Union surely they can exercise global influence well of course they can but they can't do so directly and they can't do so nimbly if the United States wants something to happen in another country it has to ask and failing that it has to exert pressure and that's because in a direct sense American legal authority ends at the American border but global corporations aren't limited in the same way and that's because they're alive in multiple countries at once and what that means is that global corporate leadership can exercise influence directly immediately and across borders in a way that no country can if you think about it what that means is that we actually have a double-edged sword on one hand corporations global corporations are increasingly beyond the control the effective control of national governments on the other because of the nature of interconnectedness it is only global corporations that can respond effectively and immediately and nimbly two important rule of law issues in 2003 there was a documentary film made called simply the the corporation and it was a huge hit some of you I'm sure have seen it this is a poster for it in Italian the the the the corporation argued that the nature of the modern business corporation meant that they were all inevitably psychopathic pursuing profit at the expense of everything else and heaven knows that there are plenty of examples of that throughout history but history also gives us illustrations of corporations acting in the social good even when that hasn't profited them in the short term and let me give you one example of that an example that's close to home to me professionally Walmart is not often held up as a model corporate citizen but the fact is that Walmart has done more to promote diversity in the legal profession than almost anyone else in certainly more than any government in Canada has ever done and that's because in 2005 Walmart wrote to all of its major legal suppliers worldwide and said that we won't use you anymore unless you can demonstrate a meaningful commitment to diversity and that was a huge moment in my professional world and its effects reverberate even today so if corporations can exercise their power for good or for bad the question then becomes what will cause them to exercise their influence their power in a positive way how do we make corporations want to be part of the solution rather than part of the problem how do we animate corporations with the spirit of the rule of law how do we to use a movie title how do we make them want to do the well the instinct the reflexive instinct is to say we'll pass laws to regulate them you know if you want to do business in Canada you have to meet the following standards well I can help but for a global company with global supply chains it can only help so much moreover you know we say that knowledge is power well the fact is the global corporations particularly global tech corporations know one awful lot about us and that gives them an awful lot of power over us power that's by its very nature is not easily controlled by governments and that's because information doesn't instinctively respect national borders the great democratic battles of the 19th and 20th centuries were about making the franchise the right to vote Universal because a right to vote means a right to be taken seriously by the government the great democratic battle in the 21st century in my view has to be about the corporate franchise we live in the global era the technological era the digital era and in that era the corporate franchise is just as critical as the Democratic franchise in fact I think you could argue that if we don't have a corporate franchise we don't have much of a meaningful franchise at all we don't have much of a meaningful voice at all if we don't have the corporate franchise political empowerment in the 21st century has to mean much more than it meant in the 19th and 20th centuries so here's the point in my great-grandmother's time the government had a duty to protect our rights and the courts were the guarantor of that duty and that worked because the threats to the rule of law were mostly local the threats we face today the gravest threats that we face today to the rule of law are all ones that aren't easily susceptible to national control so the challenge is this how do we preserve values that we hold dear how do we preserve values that we say are core to our way of life when the traditional enforcement mechanisms just can't do the job put another way how can we get corporations to accept their role as 21st century Co guarantors of the rule of law it's the same functional question question about the accountability of power that underlies the traditional understanding of the rule of law how do we get corporations to accept their role as Co guarantors and that's not a lawyer's question it's a society question it's a citizens question it's a question that we all own it's a question that we all have to answer together because our Liberty our freedom the very rule of law depend on it thank you [Applause]