Why commercial law?

Now and I again my friends, who seem never to pay attention to anything I tell them, ask me about my career plans. “So, which area of law will you specialise in?” they ask. When I tell them that I am training to specialise in commercial law, I see their curiosity whirling to awe. I go on to clarify that by “commercial law” I mean trade and investment law (known in legal circles as banking and finance). The awe morphs to utter disgust.

The reason for the animosity towards corporate and commercial lawyers, especially finance lawyers, is two-fold. First, commercial law is considered to be highly demanding, so much so that corporate and commercial lawyers suffer from diminishing to non-existent social lives. Secondly, and perhaps more importantly, corporate and commercial law is considered by the more “enlightened” lawyers to be a sell-out’s field of law.

There is the perception that to be a seasoned and successful corporate or commercial lawyer, you have to stoop to a level of shameful moral depravity. The perception is not far-fetched. If you think about it, for every single mother that loses her home to a bank foreclosure because she defaulted on a R18 loan, there is a lawyer representing that bank.

So why would I want to practice in this field of law? The short answer is that I believe commercial law has immense power for social good. The longer answer follows.

In a globalised world there are two pertinent environments for development: the micro or internal environment of the state in question, and the macro or external or global environment. Unfortunately, the law has thus far focused almost exclusively on the micro environment. The effect is that the micro environment is not legally equipped or appropriately tailored to integrate into the global environment. This is precisely why I have become interested in commercial law.

It has become quite apparent that there is something very wrong with capitalism and thus the laws that maintain the system. We spend our lives preoccupied with either surviving the system or finding alternatives to it. The assumptions we make about the law are integral to the assumption we make about the system. We assume that laws are products of capitalism, designed solely to entrench and maintain the system with its injustices. This is the assumption I wish to challenge.

Many centuries ago the law evolved as a tool for monarchs to maintain order and control over their subjects. However, as societies evolved, the people soon recognised the aptitude of the law to act as more than just an imposition but as a tool to regulate affairs and to protect citizens from excesses of public power.

Members of society like Plato, Aristotle, Cicero, St Thomas Aquinas, Hobbes, Dworkin and Sol Plaatjie, among others, became pre-occupied with how best to use the law to serve the interests of all the people, equally.

The status quo of inequity and unfreedom crippling much of Africa today is due, in part, to the law. Commercial laws too are not immune. Africa’s commercial laws are designed to serve (mostly) the interests of foreign investors. The law serves oversized and over-resourced multinationals at grave expense to the individual. This status quo must be challenged.

It is not true that the sole purpose of the law is to entrench and maintain the system and its excesses. In fact, the law has immense capacity to check and balance the system. The law is supposed, at the very least, to serve the interests of the majority Africans (I use the term in a generic sense to mean citizens of Africa). If the effect is oppression, then the law must be changed.

I must admit that the balance is intricate. Profits are the sole incentive for foreign investors. Any sort of regulation that diminishes profits may cause investors to take their business elsewhere. Therefore, I haven’t thought as far as how I want to be part of the change in the system. I hope that engagements with members of society and colleagues from the profession will give me headway.