WHAT IS THE POINT OF COMMERCIAL LAW?
This is a slightly revised text of a lecture given in memory of my former colleague and friend, Jonathan Hirst QC, a commercial lawyer of great wisdom and integrity. In the lecture I posed the question “What is the point of commercial law?” My answer—that its point is to facilitate commerce—is based on affirmation of the moral value of commerce, the notion that commerce requires mutual trust, and arguments that in today’s complex, global markets the creation and maintenance of such trust is critically dependent upon an effective system of commercial law.
I first got to know Jonathan Hirst, and his wife Fiona, in 1984 when I was his pupil at what is now Brick Court Chambers. The lessons that Jonathan taught me in professionalism, efficiency, client relations and the importance of focusing on the real issues in the case were not only valuable to me then but have been valuable ever since. I appreciated too, as his pupil and always afterwards, his conspicuous kindness, lack of any affectation and positive attitude to life—an attitude that he managed somehow to retain even when he was terminally ill. My pupillage with Jonathan was the start of a friendship that continued for over 30 years, until his untimely death in 2017. From first to last, I looked up to him as a model of integrity, positivity, robust decision-making and sound judgment tempered with humanity. I count myself fortunate indeed to have known him.
The topic that I have chosen for this lecture to honour his memory is one that would, I hope, have met with Jonathan Hirst’s approval. It was part of his outlook that every case has its point, and one of his great skills as a barrister was to spot quickly the point on which a case turned. Being of a more philosophical turn of mind, I would like to take this approach to a more abstract level and pose the question: what is the point of commercial law?
It is a question to which it seems to me anyone who earns a living as a commercial lawyer ought to be able to give an answer. My own principal motivation at the Bar and now on the Bench has always been the superficial one of wanting to do the work that presents itself as well as I can, for the satisfaction which that gives. But it would be a shame to have spent as long as I have practising commercial law without any clear conception of whether or why it is a worthwhile activity in which to engage. After all, to invert a familiar saying: if something isn’t worth doing, it isn’t worth doing well.
What is the point of commercial law?