This old speech came to mind amidst some board actions last week. At Lyceum we do a great deal of constructive thinking and writing about governance policies and processes such as committee structure, meeting frequency, agenda management, etc. In addition we have a strong view that board effectiveness also requires considerations toward individual director value systems, beliefs, and attitudes. An essential challenge beyond policies of how a board should operate is that of the “unenforceable” elements of the conduct of both individual directors and of boards as a group.

I came across this speech many years ago exploring some dusty volumes of sleeping authors at the University of Chicago’s Regenstein Library. It was an impromptu speech by Lord John Fletcher Moulton at the Author’s Club of London in 1914 that had been reprinted in The Atlantic in July 1942[1]. In this speech on Law and Manners, Lord Moulton defined in a flash of insight an “Obedience to the Unenforceable” as the great unwritten law in any democracy. He presented the “three great domains of human action.”

• – The first domain is the domain of “positive law,” where law, in all of its various forms, binds and constrains us.
• – At the other end of the spectrum is the domain of “free choice” or “absolute freedom,” where citizens can claim complete freedom of personal action. 
• – The middle domain is that of “manners.” Where citizens abide by an “obedience to the unenforceable.”

According to Moulton, this middle domain is the sphere where we do what we should do, though not obliged to do so by any law. It is an area where neither law nor free choice controls.  Moulton believed that a nation’s greatness, it’s civilization, rests in the extent and strength of this middle domain. Lyceum thinks the key to board effectiveness also resides there.

[1] https://www.theatlantic.com/magazine/archive/1942/07/law-and-manners/654181/ Lord Moulton, First Baron, was Minister of Munitions for Great Britain at the outbreak of the First World War. A noted judge, a great parliamentarian and administrator, he defined in his flash of insight that “Obedience to the Unenforceable” which is the great unwritten law in any democracy. Published first in The Atlantic in July 1924, his statement was reprinted again in The Atlantic in the July 1942 issue and is hyperlinked here.

As it pertains to a board or governing body, the duties and responsibilities that reside in this middle domain are requisite for board effectiveness. This is a very difficult area in which to ensure performance for maximum positive impact on the effectiveness of the body. The individuals (and leaders) must first recognize, or be aware of, their unwritten responsibilities and duties in this domain. Lord Moulton places emphasis here and states, “I am not afraid to trust people – my fear is that people will not see that trust is being reposed in them.” Next a director must have the courage to take initiative or action around their individual sense of duty in this middle region. The challenge is further complicated by individual differences in concerns, value systems, ethics, ideologies, attitudes, and instincts.

Herein lies, in Lyceum’s view, one of the great distinctions between being a manager and being a board member. Both citizens, and directors of boards, can be great if they obey this domain of manners.

For biographical information on Lord Moulton see this from The Great 20th Century Obituaries, The Times, Thursday, Mar 10, 1921; pg. 13; Issue 42665. — Death of Lord Moulton