Caroline Raat: Building a Bridge Between Ethics and Law

Caroline Raat is one of the leading voices for democratic values, public accountability and citizens' rights in The Netherlands. She has a rare ability to weave together concepts of law, ethics and philosophy into clear, persuasive declarations. In her latest book, Caroline talks about the importance of ethical behavior by government lawyers – and how this can be achieved.

"Ethics and the Care for Integrity: Handbook for the Government Lawyer" ("Ethiek en integriteitszorg, handboek voor de overheidsjurist") is published by Berghauser Pont Publishing (Amsterdam, 2022). Here is an except from the book's foreword and introduction, translated by Caroline and reproduced here with her permission.

Ever since my student days I have been fascinated by the behavior of people in government organizations – with respect to each other and with respect to citizens.

As far as I'm concerned, professional integrity is about dealing with your own position and the deep realization that it doesn't bring privileges, but duties. After all, you have power, even if you don't experience it that way yourself. Central to this thinking is the rule of law, not (only) as a legal concept, but as a sociological and moral concept.

In my work in administrative law – as a civil servant, scientist, author, representative of citizens, researcher or committee member – I often noticed that most lawyers have little to do with integrity. That's about others, not about them. After all, they already know, are rational and objective, and act according to the law. Unfortunately, that's not always true, because more knowledge of the law does not produce automatic compliance. Moreover, the law can also be used very improperly. So knowledge of the law and legal principles alone will not get you there?

Why should you want integrity? How do you create a new management culture? How do you ensure real responsiveness? Legal experts do not yet have answers to these questions.

These developments cannot be achieved without ethics and integrity, and these are not primarily legal concepts. Not only knowledge of the philosophical background, but especially of organizational and behavioral science and the ability to apply it in government practice are indispensable.

This book for government lawyers. It contains the insights I have gained over the past decades and incorporated into books, articles, courses, annotations, research and advice.

From what is required to what can and should be done

Lawyers have traditionally had a complicated relationship with ethics and morality – a fellow lawyer once said to me, "ethics is elastic." By this he meant that he found it too elusive and personal. This is in contrast to law, which is supposed to be concrete and universal.

But, I thought, you can't get away with that simple! For morality is not something highly personal. Most people have an emotional response when they see something unfair happen: it touches their idea of belonging – their morality and their being, in other words. And this is for good reason, because morality is a social phenomenon. There is overlap with the law for this very reason that most legal scholars endorse, although philosophically this is a complicated debate.

In this book we will not be able to describe all aspects of ethics, morality, integrity and good governance. After all, the main focus is on the relationship of these concepts to the law governing government, and therefore of direct relevance to government lawyers. It does mean that we are not just talking about state and administrative law – that is 'assumed to be familiar,' but about offering a broader understanding of the law and the position of the government lawyer. For this, the rule of law is the bridge that forms the connection with ethics and behavior in and of organizations.

Government lawyers have power

We assume that all lawyers have a special professional responsibility for the law. If you work as a lawyer for or with the government, then you have an additional task: promoting and guarding the rule of law. Why this should be so according to moral rules is explained on the basis of the phenomenon of power. Power and morality in fact have a close relationship, and not necessarily a positive one.

Integrity is closely related to this. According to anti-corruption watchdog Transparency International, it is the opposite of corruption, meaning "the abuse of entrusted power for personal gain. Corruption harms anyone whose life, livelihood or happiness depends on the integrity of people in positions of authority."

Important in this definition is its connection to power. However, personal gain is not always involved. Abuse of power without 'material gain' – think of bullying or forms of bias – can also be called disintegrated. Abuse of power also involves benefits for others than the person or organization in question. It often involves much more subtle processes than 'shuffling money under the table', 'giving jobs or permits to family members' or unauthorized ancillary functions.

Integrity is thus close to the rule of law as the legal doctrine against arbitrary exercise of power against the government. The answer to this is not only binding to law, but also to morality. Arbitrary exercise of power does not always occur intentionally. Sometimes it happens out of habit, sometimes even out of powerlessness. But power always calls for a just use. Between power and responsibility, according to Witteveen, there is a "mirror-image relationship: if you look for one you also see the other; whoever looks power in the face demands accountability."

Those without power, however, are not in a position to demand such accountability. The person in power will therefore have to make demands primarily on himself. Legal binding is not enough for this. Morality aims to provide an answer to this.

In this book we speak of integrity care and not of integrity management. By doing so, we try to indicate that it is about (much) more than rules, systems and hierarchical control. It is not just about wanting to control and manage things, but especially to cherish and promote. The core is to ensure employees with integrity, because they are the ones who are able by themselves to resist temptations such as corruption, exclusion or bullying someone. They will, if justice or safety are at stake, possibly blow the whistle. Again, the moral notion of power applies: people of integrity are vulnerable, and thus must be protected from the exercise of power by non-integral systems or people.

What integrity means in philosophy, organizational science and psychology is also important for government lawyers to know. Without knowledge of this, protection rules will not work properly. We take an interdisciplinary perspective: ethics, law, and various social sciences are interrelated to provide a better understanding of the topic.

The importance of integrity

Law and integrity are no strangers to each other, but the relationship between the two is complicated. Whereas the science of law is primarily concerned with laws and their enforcement through judicial review, ethics is based on an inner motive or conviction. Not for nothing, then, is integrity often described as: doing the right thing, even when no one is looking. Although law and morality are about behavior and action and the question of whether this is good (lawful, moral) or not, they have a different starting point. In this book we introduce law and integrity as a functional area of law in the making.

After all, one thing is becoming increasingly clear: even in a country that can call itself a constitutional state and that scores fairly highly in all kinds of international rankings, accidents involving the rule of law do happen. Insofar as these are real accidents in the sense of unintentional actions or omissions and are rectified as quickly as possible, integrity is not at issue. After all, anyone can make a mistake, and so can the government and its lawyers. The same is true of judges.

In short: rule of law is never a peaceful possession and in practice never simple. Administrative lawyers try to restore the 'excessive bureaucracy' through responsiveness, customization and proportionality, but this conceals another integrity risk: 'too much humanity' in the form of one-sided empathy and not looking closely at whether someone is entitled to a benefit or a permit. This is another area we pay attention to in this book. Rule of law as a legal and moral category is, I wrote in my dissertation, a constant balancing act.

We need both positive law and morality and integrity for a full-fledged rule of law. Not for nothing did I conclude, after sociological research on this, my dissertation 'People in Power' with the words: Rule of law as an organizational virtue is not the answer to all questions of power and to the failure of regulation and policy. It does offer a different frame of mind for thinking about this, and especially about organizations and their employees. Perhaps the most important conclusion is that rule of law is human work: work of people with power.