3 The burden of justice, the burden of equity
[M]en of law have certain scruples and are unable to eliminate justice from the law completely without twinges of conscience. But it is not possible to retain it because of the difficulties it involves, the uncertainty of operation and unpredictability it entails. In a word, judicial technique implies that bureaucracy cannot be burdened any longer with justice.
In this powerful statement the French sociologist Jacques Ellul focuses on the shifts that he saw occurring during the twentieth century, due, in large part, to an increasingly central role played by machines and technology. While the specific arguments that Ellul makes with regard to technology continue to be important if somewhat dated in the twenty-first century, his more subtle arguments relating to ‘techniques’ and the corresponding shifts they cause in, most notably, justice as it is understood within a capitalist context, remain relevant.
To be more precise, Ellul’s ideas offer an explanation or account of opportunism that is a notable and often problematic product of an increasingly financialised world. That is, a world where human life and endeavour is only considered in terms of money, markets, business, etc. Opportunism as it appears in this context engenders fraudulent behaviour that is considered criminal in nature, thus something that the state must root out and punish. But fraud or rather fraud-like behaviour transcends both criminality and even behaviour that is explicitly ‘illegal’. As such it is also a major concern for private law and equity more specifically. As Henry Smith (2012) suggests: ‘Opportunism is different [from fraud]. It often consists of behavior that is technically legal but is done with a view to securing unintended benefits from the system, and these benefits are usually smaller than the costs they impose on others’ (pp. 10–11). Moreover, ‘opportunism is behaviour’, claims Smith, ‘that is undesirable but that cannot be cost-effectively captured – defined, detected, and deterred – by explicit ex ante rulemaking’ (p. 10).