Conflicts of interest
The psychology of legal relations
In which we find our intrepid contrarian once again standing alone, among the crumbs, crusts of bread and crossfire hurricanes.
Conflicts of interest aren’t some kind of regrettable externality of life: they are life. For if one adopts the dystopian view — well, you might call it dystopian; some of us find it strangely comforting — that if left alone, all human beings will instinctively feather their own nests at every opportunity they get — we should see conflicts of interest not as some kind of canker, to be identified and expunged wherever we find them, but as a fundamental part of the operating system — as inevitable as getting grease on your hands when you handle a bike-chain.
There is an argument — one I suppose I just made up, but others may have beaten me to it — that the difference between a practical philosophy and an idiotic one is the degree to which it encodes as its starting assumption, that all men and women are jerks, and have to physically restrain themselves from scoffing all the biscuits, and even then only do so if they think they’ll get busted if they don’t.
If you start with that assumption, you can set up your institutions in a way that the inevitable conflicts of interest iron themselves out, like out-of phase-speakers, and the noise that remains — of course there will be noise — is more or less tolerable and even productive.
Case in point: Adam Smith’s invisible hand. Its beauty as a model is it supposes every merchant is out for her own interests, to the exclusion of everything else. But put these impulses in competition with each other and something rather unexpected happens.
On the other hand, put a benign but all-powerful state in place to look after all our interests fairly and equitably, don’t be surprised when you get presidential palaces with gold plate lavatories, gulags, great leaps forward and so on.
The thing about conflict is that it implies tension, stress and injury. Tastiness comes with it.
When your interests conflict with those of your client, this is the risk you run. Get it right, and all is well. Get it wrong, and be grateful if the worst you get is a a black eye. Prepare for scuffles, feints, cuffs on the ear and bops on the nose.
It isn’t wildly fashionable to say so these days, readers — we live amongst snowflakes and libtards who bid us put psychological safety above all else — but the chance of being the wrong end of the odd dust-up, every now and then, keeps us on a level.
So rhetoric devices that de-escalate — that seek to cry off the planned dust-up behind the bikesheds, in the name of preserving safe spaces — we think they’re a bit insidious.