Loyalty

Loyalty has many meanings, within and without the law. There is a difficult question about whether loyalty is a virtue, inasmuch as one can be loyal to many causes, not all of them virtuous. For many jurists, the notion of loyalty evokes the common law’s fiduciary relationship and the norms that are particular to that relationship. Although fiduciary relationships represent the common law’s most thorough implementation of loyalty, the law also requires loyalty in other situations. In his study of loyalty, George Fletcher distinguished a minimalist understanding—“do not betray me”—from a maximalist reading—“be one with me.” This distinction has echoes all through private and public law. Betrayal is disloyalty. Etymologically, betrayal arises when one person hands another person over: the “-tray” part of the word comes from the Latin verb tradere, to deliver, which is also the root of “traitor.” But the disloyalty of betrayal, while it can occur in fiduciary relationships, can occur in many other situations as well. An employee who gives their accomplice information about how to break into the warehouse is disloyal to the employer, in a way that the accomplice is not. The employment relationship, however, is not generally a fiduciary one. The law’s implementation of loyalty in this context—minimalist loyalty—is through contractual obligations. In the common law, this would probably be via an implied term. The Civil Code of Québec imposes on the employee an obligation to “act faithfully and honestly” (article 2088); in the French version, “avec loyauté.” This is a text of law that demands loyalty outside of a fiduciary relationship; an example of a legal implementation of minimalist loyalty. While the Code stipulates that spouses owe each other fidelity/fidélité, the text of article 2088 suggests an equivalence between loyalty and faithfulness—and not only in this article. The Code, in its French text, contains four occurrences of an obligation de loyauté. Apart from the employee, the others are in relationships that the common law considers to be fiduciary: the director of a legal person, the administrator of the property of another (which in Quebec includes the trustee), and the mandatary. In English, the Code uses the word “loyalty” only for the director; like the employee, the administrator and the mandatary are required to act “faithfully.” The implication that loyalty and faithfulness are synonymous is supported by the observation that the words are often used to define each other: loyalty is faithfulness, and vice versa. Etymologically there is some distance between them: “faithfulness” comes from fides, which also gives us “fiduciary” and “confidence”; it connotes a personal relationship of trust. “Loyalty” shares with “legality” a root in leges, and speaks therefore more to compliance with a set of norms. Minimalist loyalty forbids betrayal. There are many ways to betray someone. But it remains wrongful in a particular way; a stranger who hurts or steals does not betray. A person can only be betrayed by someone who holds some power over them, coupled with an expectation, generated by the betrayer’s own conduct or position, that this power will not be used against the one betrayed. This power, of course, can arise in many ways; it may be emotional or affective as well as juridical. Because betrayal is a kind of disloyalty, and because loyalty is linked for many jurists to fiduciary relationships, the mere possibility of betrayal may suggest the presence of such a relationship. But the distinction between minimalist and maximalist loyalty shows that such an inference is unreliable: both morality and the law require loyalty in some relationships that are not fiduciary. This …