Legal Ethics and Corporate Governance Post-Enron

CONFERENCE CLOSING REMARKS
Wake Forest University Law Leadership Council
Wake Forest University Board Of Trustees
Summer Leadership Conference

The Homestead
July 31 – August 3, 2003

Dr. Thomas K. Hearn, Jr.
President, Wake Forest University

As a once-upon-a-time professor of moral theory, the topic of this conference has played a professional as well as a personal role in my own life. On the personal side, as some of you know, I grew up in a remote area of northwest Alabama, the end of Appalachia. The principles of right conduct taught in those days were simple and clear. There were established norms of the family, the church, and the state. Our duty was obedience to these norms and reverence toward the sources of normative authority.

Happiness did not consist in doing what I might have wanted but in fulfilling my duties as they were assigned by these sources of authority. It would not have occurred to my father that my personal happiness could consist of anything other than the obedience appropriate to children.

This ordered moral universe of my childhood, however, was to be overturned. The year 1954 marked the Supreme Court decision in Brown v. Board of Education. In 1955, I graduated from an all-white high school. In 1956, the bus boycott in Montgomery began. Thus, during my undergraduate years a moral, legal, and spiritual revolution unfolded. The philosophy and religion departments were where these topics were being discussed and explained, and so I gravitated there. As a sophomore, I had a classroom illumination that the person at the front of the room was being paid money to read books and talk about them, and I knew at once that higher education was the life for me!

The world as I had known it had to be remade while I was a student. It was clear to me as an undergraduate that education had, and must have, moral purpose. My undergraduate years brought revolutionary changes in my understanding of myself, my duties, and the religious tradition in which I had been nurtured.

True to that sophomore epiphany, I went on to earn a Ph.D. in moral philosophy and entered the world of university teaching.

The end of the 1960s found me on the faculty of the College of William and Mary as the Cultural Revolution broke over our campuses. Whether the issues were the sexual revolution and abortion or civil disobedience and the Vietnam War, I worked to make my classroom a place for moral discussion and clarification. Part of what I had come to believe as a teacher of moral philosophy was that few people had ever thought clearly and systematically about the moral life—moral beliefs being a patchwork drawn from here and there. I tried to correct that deficit in my students with all the zeal of a young teacher.

William and Mary enrolled scores of students from the Washington, D.C. area, many of whom where the children of military and diplomatic personnel. The Vietnam War was for these young people a critical and personal issue of devisive family impact. Should a child of a military family seek conscientious objector status? While such questions were deeply personal and emotional, they also offered a perfect opportunity for the growth of understanding and perspective. We often experienced together what we later learned to call “teachable moments.”

Does education have a moral purpose? Of course it does. The broadening of our understanding leads to an extension of our sympathy and an enlarged affinity for the perspective of others. That was my experience as a student. It was also my experience as a teacher.

I shall always, of course, be grateful for the kindly providence that in time brought me to Wake Forest. Here was a place where our creed and motto — Pro Humanitate — embodied my own faith and experience that education is for human betterment. This was my intellectual, moral home.

Nowhere at Wake Forest is this ethical tradition more firmly entrenched than in our School of Law. Many of you here will remember the time when an interview with Dean Weathers was required for admission to our School of Law. His concern was always as much for morals and motivation as intellect.

We have been discussing this weekend an ancient topic: Can ethics be taught? Is it a kind of knowledge, or are moral values the outcomes of custom and habit alone? With that question Socrates launched moral reflection in the Western intellectual experience.

I came to believe as an undergraduate that the Socratic view that “virtue is knowledge” was right. There is moral knowledge. It can be taught—as everyone who has participated in the upbringing of a child intuitively knows. And, of course, many professors of law (and some professors of philosophy) can testify to the growth of moral understanding that takes place in our classrooms.

When people say that ethics cannot be taught, what they often mean is that ethical “teaching” does not guarantee ethical “conduct.” Courses in ethics do not produce ethical persons. If the lesson of Genesis is to be believed, we all do destructive and evil things. The cause is often not moral ignorance; it is rather more often moral failure. We do what we know to be wrong. I know it is wrong to tell the lies I tell.

In a similar way, teaching about safety does not ensure that we act safely. We humans are easy prey to temptation of every kind. As Oscar Wilde once put it, “I can resist everything except temptation.”

The world at the opening of this new millennium has a great deal more moral clutter than it did in the hills of Alabama a few decades ago. Our job as ethical teachers—a job we all have each and every day—has become more difficult, exceedingly so. The causes of this clutter are many and complex. There is the decline of the stability of the family, and increased social mobility separates us from our relatives and mentors. Mobility deters the formation of stable moral relationships. The ascent of the mass media and popular culture means that children are presented with a daily dose of “moral” instruction that celebrates personal indulgence, violence, drugs, and intoxication. I sometimes think that we can scarcely overcome these dismal influences.

The growing diversity of our culture means that we must learn to respect and regard the customs and beliefs of those unlike ourselves. As a philosopher might put it, we must learn to accept “otherness” into our awareness and understanding.

While the moral universe of my childhood has been undone, I affirm that the basic moral tenants of the simple moral theory I was taught at home, at school, and at church are part of the domain of moral knowing: do justice, love mercy, and walk humbly with God.

This general decline in the rigor and reach of personal morality, however, has had the most profound social consequences, for personal morality is the primary and critical form of social regulation. Every other sort of external regulation will present us a loss of personal autonomy. But in the decline of personal and public morality, other forms of social regulation have been of necessity expanded, primary among them being the law. The law now controls ever-expanding domains of private and public life. We often complain of these new reach of law, sometimes with just cause. The Death of Common Sense¹ made dismal reading.

However, the reach and scope of the law is a function not of the law itself but of the society we have come to be and have chosen to be. Think of the importance of anti-discrimination laws of various kinds. Consider environmental and safety regulations. Unknown a few decades ago, such laws are now basic to our personal and social values.

Thus, as the role of law and the influence of lawyers have grown, it is urgent that the values of the profession—legal ideals—be promulgated and taught as well and as thoroughly as the skills and techniques of the profession.

There will, of course, be greedy and corrupt lawyers who will pervert their training to secure ill-gotten advantages. But let us work without ceasing to do all we can to ensure that such lawyers do not wear the colors of our university and thus bring our law school and our university into disregard.

More than abstract moral precepts, the law school must always facilitate the development of personal relationships by faculty with students whereby ideals are presented not just by teaching but by the friendship that lifts the ambitions of students. The teacher is powerful when her or his influence is direct and personal. Ideals are best seen on two feet.

In considering the morality of this great profession, we must never forget that the rule of law is modern democratic civilization’s singular achievement. We have only to look at places in the world lacking this achievement to understand how fundamental it is to our personal and social well-being. We dare not take this blessing for granted. The legal profession must decide how the massive new influence of the law will be directed.

We must see that graduates of the Wake Forest University School of Law serve the needs of a free people for a system of justice that advances, and does not impede, the orderly processes of our lives and of our work.

In thus adhering to the ideals of the profession, the law will be an institution deserving of our reverence, and “lawyer” will be a title of service and honor.

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¹Philip K. Howard, The Death of Common Sense: How Law is Suffocating America (New York: Random House, 1994).