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Interpreting the ‘Occupy Movement’: stewardship lost and found

That some should be rich, shows that others may become rich, and, hence, is just encouragement to industry and enterprise. – Abraham Lincoln
Your morals are exempting you from guilt and shame. Heaven knows you're not to blame   – Mr. Businessman, Ray Stevens

We have seen enough now to realize that the initial media reports were substantially under-informed when not patently false. Occupy Wall Street and its clones here and abroad were portrayed as a welter of half-baked platitudes and half-understood plaints. That mischaracterization has been superseded by the slogans of the protesters themselves, which name names, crisply announce clear and distinct accusations, all of them aimed, the world around, at the one percent that has secured the ability to enforce its privileges at the expense of the ninety-nine percent. The establishment message remains, “Go back to work and stop bothering the status quo”. The protesters are having none of that, preferring publicly to vow that the power brokers and their media puppets shall one day be forced to acknowledge the makings of a tinderbox of fissionable material.

But in fairness, the media are right on one thing – neither they nor the protesters fully comprehend that the whole affair reduces, both as to source and solution, to a single idea expressed in a single three-syllable word: stewardship. In Rome, citizens were treated to the nobler pretensions of stewardship in the form of sound laws with stiff penalties awaiting those convicted for breach of stewardship – what they themselves called abuse of office. Rome saw the office as a locus and focus of service, a term we Americans feel free to borrow without caring to examine or support the doctrines involved. Rome nevertheless failed to avoid the corruption that would foment her fall. Her public trials for abuse of office were juried by the very aristocrats from whose rank the defendants uniformly arose. Two thousand years hence we achieve the same end by permitting the same plutocrat-friendly groups to purchase unseemly influence over policy.

I

Two hundred years ago the American president and philosopher Thomas Jefferson offered his guidance regarding all future ‘occupy movements’. His prescience proved prophetic:

“Mankind soon learn to make interested uses of every right and power which they possess, or may assume. The public money and public liberty, intended to have been deposited with three branches of magistracy, but found inadvertently in the hands of one only, will soon be discovered to be sources of wealth and dominion to those who hold them; distinguished too by this tempting circumstance, that they are the instrument, as well as the object of acquisition. With money we will get men, said Caesar, and with men we will get money. Nor should our assembly be deluded by the integrity of their own purposes, and conclude that these unlimited powers will never be abused, because themselves are not disposed to abuse them. They should look forward to a time, and that not a distant one, when corruption … will have seized the heads of government, and be spread by them through the body of the people; when they will purchase the voices of the people, and make them pay the price.“

Jefferson lived at a time when it was actually fashionable for educated people to be schooled in the core notions of stewardship. Those especially who studied at law, like Jefferson, were certainly aware that the Englishman John Selden (officially, Steward of the Earl of Kent) had only recently propounded the maxim, stated above, that would resonate throughout the entire common law world. Selden, a jurist as well as steward, spoke to the sociological truth that the ultimate ground and function of the law is to enforce what society considers the moral values enabling and exemplifying civilized society. They are comprised almost entirely of what the Romans were the first to call the offices of life, amongst which are included marriage, repute, citizenship and all of the noble professions (law, medicine, etc.). Public and corporate offices are in particular relevant for democracies. “The greatest contribution of Rome to political thought was,” according to the noted historian Norman Cantor, “the concept of office.” Selden’s message was actually this: ignorance of basic stewardship is no excuse.

Jefferson, as Dumas Malone pointed out, was exquisitely pleased with his gentry status. By that was meant not so much an aristocratic station as the stewardship befitting that station when well managed, even absent the station. The American Founding Fathers felt strongly about stewarding life itself, expressed in the admonition to have ‘amounted to something’ by age thirty-five. A stewarded life was not a mere lifestyle, any more than any stewardship is a mere job; it was an art larger than life, what in Milton’s memorable phrase was ‘life lived as a poem’, elegantly framed by a palpable nobility of mind and character. These early Americans were hardly perfect; yet, warts and all, what they accomplished makes us look spineless, and cheap by comparison.

Stewardship is more than a job precisely because it is premised upon the public display of those attitudes best calculated to justify the trustworthiness necessary to command allegiance of those who, in order to be best served by the offices, must submit to the requisite prerogatives. One does not pretend to direct the doctor or otherwise hold him accountable during general anesthesia. For the reason that stewardship has always been special, its violations have always been dealt with harshly. At the time, the King’s Peace reflected the sovereign’s assurance (a stewardship duty) that the public had a legally protectable right to be secure, especially in public. Bearing arms, no less than pointing a gun – vis et armis –  was by its very existence a slap in the sovereign’s face in addition to an assault on the public’s rights. For every felony there is a violation of that very same principle, a protectable stewardship reliance.

Today there are felonies aplenty that are never reported. The example par excellence is the fashionable practice in almost every industry to evade responsibilities and garner higher rates of return from third-party contracts. Whether it’s evading the honoring of warranties for products sold by third-party vendors, or taking original mortgage agreements and profiteering from third-party derivatives, the guiding principle is as simple (and alluring) as it has also been for a thousand years of a shared legal tradition –  illegal. These have been known as fiduciary violations, felonious acts, tortious conduct, conversions at bailment, but what they really and truly are, jurally and realistically, is breaches of stewardship.

The attitudes culminating in today’s occupation movements began long ago. In America, the combination of a shameless plutocracy and a public over-proud of the industrial output that was the wonder of the age – we are speaking of America between the financial reforms of Theodore Roosevelt and the Second World War – nurtured the attitudes of cowboy capitalism that today is still worse, not any longer because of public pride, but because of private power to act independently of public sentiments that had in the meantime shifted strongly against corporate greed. And the problem is of course not restricted to corporations. I received a newsletter issued by the Citizens for Responsibility and Ethics in Washington (CREW), highlighting recent developments with this overview: From bribery to obstruction of justice to serious campaign finance violations, it has been a busy year for lousy lawmakers.

II

A renewal of stewardship would surely seem the natural and expedient solution to the problems occasioned by its lack. The resurrection of stewardship begins and ends with the office. Not only does stewardship logically presuppose an office, but no office worthy of the name can adequately achieve its purposes without the unique attributes that are stewardship. As for the office, it is simply a platform for the exercise of a grant of authority (see for example Black’s Law Dictionary). Equally fundamental, therefore, is the corollary that stewardship is nothing less nor more than the collective responsibilities owed by the officeholder(s), to the grantor(s), to the office itself, and, still more importantly, to the beneficiaries for whom the grant of authority was established in order to assure the desired results.

Having noted the importance of attitude, it should be added that stewardship is more merely than the expression of good character. It is unique and invaluable for much the same reason that the office is; and the office is always unique as an institution because adding a specific warrant for the exercise of prerogative, which differs from ordinary authority in being dependent, occasionally to the point of arbitrariness, on the actor’s sensibilities, judgment, talent and training. Offices are unique and invaluable precisely because officeholders are accorded the trust to wisely determine when and to what extent this prerogative can be exercised.

If mere authority can be a risk when abused, all the more so does the same apply to prerogatives. Owing primarily to importance of prerogative both for good and evil, the officeholder is granted limited liability and the public is protected, in theory at least, by the charter, oath or other similar device. Liability was never intended to shelter gross negligence, however, and by and large it still does not. But powerful interests have managed to weasel out from under the stewardship obligations presupposed by charters and oaths. Accordingly, offices depend upon a carefully calibrated balancing act, where concentrations of power, rightly understood as inherently dangerous, are balanced by obligations intended to orient, delimit and hold accountable these concentrations of power and thus protect the public from the harms made possible by the very fact of that power.

When we wish to have a simple but rigorous way in which to identify stewardship at work, two ideas predominate: devotion to principle, and evidence of proactive measures against potential harms. We find it useful to consider the former as offering examples of responsibility, and the other of duty. Together they constitute the obligations of the office that enable the officer to orient and balance the concentration of power. With these simplicities we can return to greater detail with at least the pretense of knowing what we are about. Devotion divides into categories of excellence and pains taken, which together assist greatly in securing the public perception of trustworthiness. When these are eroded cynicism gradually supervenes, a circumstance all too characteristic of today’s mentality.

We can just as clearly delineate lapses of stewardship by two quite specific and telltale signs:  the acts characterizing breaches of stewardship manage at one and the same time to 1) disregard obligations owed the beneficiary in favour of another – in legal language, the ‘conversion’ of obligation from the beneficiary to the benefit (private or otherwise) of the officeholder, and 2) contempt for the rights of the public to be secure from injury (owing to the concentration of power) or, what amounts to much the same thing, contempt for the law itself. But while every conversion is at once evidence of contempt for the law, the reverse is not always true. Take, for example, ‘contempt of court’, a frequent ruling at equity which does not usually involve, let alone require, the precondition of conversion. In a nutshell, stewardship is very approximately ‘aggravated conversion’, and we imply the aggravation (established by evidence of contempt) whenever we speak of conversions in the sense either of bailment law or stewardship.

In America there is an oath of office admonishing the occupant to ‘faithfully execute’ duties ‘to the best of [one’s] ability’ (both from the Constitution, Article 2 Section 1), from which we easily identify the non-negotiable quality both of excellence (to the best of one’s ability) and pains taken (‘faithful’ performance). Just as neither is optional, so each exists above and beyond the strict function of the office. All of which reiterates the point that the office, because and only because, of its stewardship requirement, can never be just another job. The best parts of life, those that do yeoman’s duty, instilling a sensibility for dignity, the gratitude for equality in opportunity and egality before the law, and love for excellence and nobility, are the rewards implicit in the stewardship of those offices without which civilization is drab, dull, boring and inconsequential. Life without stewardship would not be worth the effort.

III

When corporations offer charity or sponsor sports or other events, they are essentially working at maintaining the perception of trustworthiness. But make no mistake, no amount of good branding can erase the fact of the charter, evidence that the government, speaking for the sovereign, compels public accountability because of the clear potential for the misuse or abuse of power. When a chemical company fails to control the risk of contamination of the earth they are failing a legally recognized duty and the law has every right and reason to intervene on behalf of the sovereign. Of course, this amounts to nothing at all so long as the same companies are protected by money that, in exchange for re-election, prompt legislators to exempt corporations from the relevant codes thus eliminating any real shred of accountability. In perfect societies corporations would be disallowed the option to present a best foot forward until it was evident from a rational inspection that the relevant duties had first been satisfactorily achieved.

Stewardship responsibilities need not be detailed in written codes of civil or criminal law. England got along reasonably well for several long centuries without codes and constitution. All of which spoke to Selden’s point, which can never really be over-stressed. That many in the legal community can’t cotton onto this basic reality of law attests to the supreme disregard given by law schools to legal theory or history – in short, to jurisprudence, a term that has been all but relegated, abandoned, if you will, to the European legal systems. Such wanton ignorance qualifies as cupidity (a generous view of the matter). While American jurists applied doctrines of equity to support the rights of privacy that were not stipulated in the Constitution, so they might and ought to apply similar sound jural reasoning to many other stewardship functions.

‘Other’ stewardship functions? Why, yes. All that craziness over the legal standing of privacy is a testament to the capstone role served by stewardship. American law still recognizes repute in the forms both of slander and libel, but remains strangely ignorant that without privacy, repute is a mere politeness or courtesy. Privacy is in point of fact the evidence of respect for the sanctity of repute from violation. As such it counts as pure stewardship. The vast amount of legally enforceable stewardship has never been, and never will be, enshrined in constitutions. It was the better part of wisdom and nobility to trust in the sensibilities of the heart without which the mind is unable to recognize, let alone protect, stewardship obligations.

American lawyers and judges and legislators have a steep learning curve ahead of them. We can only hope they have the humility to confront their insatiable appetite for perks and privileges, to say nothing of their presumptuousness in matters of law. If we attack the visible surface of error, of Wall Street or the banks in general, or IMF, or what have you, we must look equally to those who turned their backs on methods that would have prevented so many wrongs from ever attaining critical mass.

We can objectively summarize the lead factors resulting in the Occupation movements. First, the use of money to institutionalize end-run codicils that confer special benefits or exemptions for privileged groups at the expense and/or risk to the actual sovereign, is wrong. Second, the purchase of friendly politicians, whether to avoid scrutiny or indulge in unjust gain, is wrong. Third, that lawyers, judges and legislators who believe that it is just okay to turn away rather than use the law to confront illegalities, is not merely wrong but is in fact reprehensible. The ‘occupy movement’ might best summarize its own posture in this message to businesspeople and politicians: stewardship matters.

We are captive to a bevy of ideologically-inspired motivations aimed at preserving conduct that continues to invite moral obloquy up to and including criminality that, while sparing no commoner from due suffering, holds the violators inviolable, beyond the reach of the law. So endemic and pervasive is financial arrogance, for example, that the Wall Street pay-to-play managers are requesting full legal immunity from all related prosecution. In light of this, consider the public remarks of an erstwhile professor of constitutional law when reporting to the American people that, well, what happened wasn’t really illegal, just a little wayward. When a country’s nominal leader publicly lies or else (for what other rationale can there be?) delivers evidence of ignorance and cupidity, one risks a mental hernia straining to wrap the mind around the implications.

We must not be sheepish about establishing stewardship guidelines, nor for disciplining those who are sorely tempted to aggrandize prerogative, for such are no less dangerous than a thousand drunk drivers. We now see that stewardship has for many centuries been an accepted obligation undertaken by good people both because it was right and because it was necessary in order to ensure both that the best of humanity shines and that the required prerogatives be balanced by a vigilant and proactive posture against harm. Nothing here is rocket science. Perhaps it will require an American Spring to effectively communicate to 'the powers that be' the need for a renewed emphasis on stewardship - with teeth as necessary.