The Golden Rule, or the rule of reciprocity, states that one should treat others as one would wish to be treated. It is an astonishingly widespread maxim, appearing in some form in virtually every major religion and belief system.
As a result, the Golden Rule permeates Australian society, in our courts and parliaments, and our laws and judgments. It is an integral and inalienable part of our social infrastructure.
Cambridge professor David Howarth’s recent book, Law as Engineering: Thinking About What Lawyers Do, considers some of the implications of this. Howarth’s thesis is that most UK lawyers do not argue in court. Rather, on behalf of their clients, they design and implement, through contracts, laws, deeds, wills, treaties and so forth, small changes to the prevailing social infrastructure.
Australian law practice seems to follow a similar pattern, and this is a good and useful thing; without these ongoing small changes to social infrastructure there would be large scale confusion, massive imposition on the court system, and general, often escalating, grumpiness.
Engineering serves a similar function. Engineers, on behalf of their clients, design structures and systems that change the material infrastructure of society.
This is also a good and useful thing. And, with the history of and potential for significant safety impacts resulting from these physical changes, engineers have over time developed formal design methods to ensure safe outcomes.
These methods consider not only the design at hand, but also the wider physical context into which the design will fit. This includes multi-discipline design processes, integrating civil, electrical, mechanical, chemical (and so on) engineering. It also includes consideration of what already exists, and the interfaces that will arise. Road developments will consider their impact on the wider network, as well as nearby rail lines, bike paths, amenities, businesses, residences, utilities, the environment, and so on.
Howarth’s book considers this approach to design in the framework of changing social infrastructure. He argues that lawyers, in changing the social infrastructure, ought to consider how these changes may interact with the wider social context to avoid unintended consequences. As an example, he examines the 2009 global financial crisis in which, he argues, many small changes to the social infrastructure resulted in catastrophic negative global impacts.
Following formal design processes could have, if not prevented this situation occurring, perhaps at least provided some insight into the potential for its development. But the question arises: how should negative impacts on social infrastructure be identified? In contrast to engineering changes to material infrastructure, social infrastructure changes tend not to have immediate or obvious environmental or health and safety impacts.
One option that presents itself is also apparent in good engineering design. Engineers follow the Golden Rule. It is completely embedded in engineering practice, and is supported and reinforced by legislation and judgements. Engineers design to avoid damaging people in a physical sense. Subsequent considerations include environmental harm, economic harm, and so on.
A key aspect of this is consideration of who may be affected by infrastructure changes. Proximity is critical here, as well as any voluntary assumption of risk. That is, potential impacts should be considered for all those who may be negatively affected, and who have not elected to put themselves in that position. This is particularly important when others (such as an engineer’s or lawyer’s client) prosper because of such developments.
A recent example involving material infrastructure is the Lacrosse tower fire in Melbourne. In this case, a cigarette on a balcony ignited the building’s cladding, with the fire spreading to cladding on 11 floors in a matter of minutes. The cladding was subsequently found to not meet relevant standards, and to be cheaper than compliant cladding.
In this case, it appears a design decision was made to use the substandard cladding, presumably with the lower cost as a factor. Although it is certain that the resulting fire scenario was not anticipated as part of this decision, the question remains as to how the use of substandard materials was justified, given the increased safety risk to residents. One wonders if the developers would have made the same choice if they were building accommodation for themselves.
In a social infrastructure context, an analogy may be that of sub-prime mortgages being packaged and securitized in the United States, allowing lenders to process home loans without concern for their likelihood of repayment. In this scenario, more consideration perhaps ought to have been given by the lawyers (and their clients) drafting these contracts as to, firstly, how they would interact with the wider context, and, secondly, whether the financial risks presented to the wider community as a result were appropriate. In many respects the potential profits are irrelevant, as they are not shared by those bearing the majority of the risk.
The complexities here are manifest. Commercial confidentiality will certainly play a role. No single rule could serve to guide choices when changing social or material infrastructure, and unforeseen, unintended consequences will always arise. But, when considering the ramifications of a decision, a good start might be: how would I feel if this happened to me?
Co-written by: Tim Procter and Richard Robinson