“Legal ethics – Natural law, virtue theory, Deontology”;
Legal Ethics is understood in terms of moral behaviour of those who practice and apply the law. In order to exercise such ethics, one must have a stance on a view of morality to underpin its practice. This essay will firstly explore Utilitarianism in relation to legal ethics. With a look at the application of its teachings to legal ethics, the difficulties in following said principles in practice will be highlighted. This essay will then search for a different moral theory that is best as a basis for legal ethics, firstly looking at traditional views such as Deontology and Virtue theory. It is here where it will be seen that although these theories differ from Utilitarianism, they hold a very common similarity in relation to their unfeasibility.
A departing from such traditional thought into David Luban’s reading of Fuller’s natural law theory will then be explored in relation to its moral applicability to legal ethics. By explaining Luban’s use of such a theory as a basis of professional ethics, a much more pragmatic, open and practical approach to will be established as the favourable moral basis for legal ethical thinking.
Utilitarianism
Utilitarianism determines that the moral worth of an action is dependent on whether the outcome of that action is better than if it had not been performed. With a focus on the ends of an action, Utilitarianism evaluates such actions and their moral worth in relation to their ability to maximise the concept of the maximum good for the greatest number , known as the doctrine of utility.
Jeremy Bentham, a key developer of Utilitarianism, founded the “Utilitarianism calculus”. Drawn from the ancient practice of hedonism, Bentham advocated that “Nature has placed mankind under the governance of two sovereign masters, pain and pleasure” and that beings are driven by their desire to seek pleasure and avoid pain in order to achieve happiness. Bentham used such an ethos to establish that this calculus advocates an ethical system, as performing moral actions would be acts that bring about pleasure and avoid harm, maximising happiness. Utilitarianism was later built upon by John Stuart Mill, who supported this argument, believing “actions are right in proportion as they tend to promote happiness, wrong as they tend to produce the reverse of happiness”. Although through his development of Utilitarianism Mill distinguished between higher pleasures and lower pleasures, he argued that although we may differentiate between pleasures, a higher pleasure will always be more desirable to the informed man.
It is here we see Utilitarianism’s consequentialist nature. Through a calculation as to whether an act will bring about pleasure and maximise happiness an action can be determined as morally superior. This is a common argument supporting the use of Utilitarianism as a basis for legal ethics. Its means- ending nature makes the moral agent think about the consequences of his or her actions. Furthermore it can be said that the principle of utility also makes said agent not only think about his own welfare in relation to the morality of his actions, but also those within society therefore upholding its faith within the legal system when applied to the practice and rules of law. Due to this, on the surface Utilitarianism may be seen as a more than than adequate moral basis of legal ethics through such values. But in fact it is these principles that present a tension between such a theory and legal ethics.
In relation to Utilitarianisms means-ended approach to action and behaviour, immoral or unethical acts may be justified through such a notion. In order to illustrate this point, a prime example of such can be seen when looking at the case of the Washington Torture Lawyers.
In 2004 it came into the public sphere that, during the 2003 war in Iraq, prisoners being detained within Abu Ghraib as potential terror suspects were subjected to severe torture and sexual humiliation. Surprisingly, this torture was categorised as being within the law through the ‘torture memo’s’ comprised by United States Administration lawyers. Through the use of loop holing, the lawyers advocated the use of torture, an act that wholly infringes on the ideas of ethics, morality and human dignity .
When looking at such a case through the lenses of Utilitarianism thought, one can argue that the end justified the means as the torture was inflicted in order to gain information from terror suspects in the war of terror to prevent harm and pain for society, the greatest amount of people, at the hands of extremism. However, this holds the absurd notion that immoral acts, those of which in this case were within law, are justified if the outcome is that of maximum happiness of the greatest number. With the maximisation of happiness at the core, it seems that any sort of action, as long as it brings about ‘the greatest good for the greatest number’, can be inflicted, justifying the likes of tortue. This undermines the whole concept of morality, which is based on the thought of how we must treat other people , and in turn shows that the teachings of Utilitarianism do not always promote morality and ethical practice.
Another weakness within utilitarianism thought is its notion of calculating happiness.
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Although Mill, through his distinction between higher and lower pleasures, offers some sort of acknowledgment to the differentiating levels of happiness that one can feel, his argument that a higher pleasure will always be favoured lacks advancement from its basic level. By trying to quantify a feeling into an overall spectrum, even after attempting to differentiate between levels of pleasure, Mill fails to truly form a solution to the subjectivity of happiness, almost brushing over the notion after offering a brief answer.
Due to these factors, Utilitarianism is not a good moral theory to use as a basis of legal ethics, due to its impractical nature. If, then, Utilitarianism is not a favourable moral theory to use, a choice must be made as to which theory is preferred.
Summarise and edit/expand last argument
Deontology
Deontology is a duty based moral theory based on rationality. In sharp contrast with Utilitarianism, Deontologists measure the moral worth of an action based on the action itself rather than its consequences. Kantianism is a prime example of such a theory. Developed by Immanuel Kant, it was held that the only unconditionally good characteristic one holds is good will, which drives our actions to be those performed from duty. Alongside his notion that rationality is unique to human behaviour, Kant argues that there is a pre-existing moral law which one knows and follows through their rationale and that aspects of human behaviour, such as desire, cloud rationale and therefore should be dismissed when acting. In Groundwork of the Metaphysic of Morals , Kant’s reasoning in establishing a pre-existing moral law can be seen in the Categorical Imperative, comprised of three formulations. The first formulation he identified as “Act only according to that maxim whereby you can at the same time will that it should become a universal law without contradiction.” This formulation advocates that a justification of an act is only legitimate if others may also rely on such a justification. Through Kant’s idea that rationality is a human trait, actions must be determined through rationale to be relatable on a universal level. His second formulation, showing at the core a contrast to Utilitarianism, is that people should not merely be treated as means to an end but rather an end within themselves . This principle would instantly make cases, such as that of Abu Ghraib, lacking moral worth and therefore not ethical when applied to law. The third formulation is in which “every rational being must so act as if he were through his maxim always a legislating member in the universal kingdom of ends.” .
We see here an alternative to Utilitarianism that focuses more on morality in the step by step process of an action, rather than the outcome, disallowing immoral actions to be justified.
However, although its concepts differ, its nature of impracticality can be drawn in parallel with Utilitarianism. This in fact comes from its main difference with consequentialist theory, that being its lack of view of the outcome. On the completely opposite spectrum to Utilitarianism, Deontology’s take on rule based thinking can also lead to immoral and unethical results. A prime example is in relation to Jewish sympathisers within the time of Nazi Germany. In order to protect Jewish civilians, sympathisers who allowed them into their homes and hid them from Nazi soldiers were in fact breaking rules and disobeying their duty. Although they were protecting people from an unjust system, if looked at from a Kantian view, by disobeying their duty to tell the truth they were in fact morally bad. By dismissing the human value of intuition , which ties into rationality, of the core principle of human rationale used to justify Kantian theory is undermined.
The concept of duty also means that the concept of ‘good will’ within Kantian teachings determines the moral worth of an act in relation to its sole reasoning. This, although may by itself not be seen as an issue, in turn dismisses the moral quality of actions if they are acted out of any other reason but duty. Its lack of acknowledgement for other human factors means that an act committed out of compassion, a feeling that Kant would class as having the potential to cloud rational judgment to lead to a morally good action, would have no moral worth despite compassion being held in high regard throughout usual moral thought .
Another issue in relation to realistic application comes from Kant’s first formulation, the idea of a universal law. By disregarding the idea of context, Kant ignores that different parts of the world hold different values and see different duties as that of good will through different rationale. Yes, he states that only universally relatable maxims are legitimate, but in practice this rigid assumption paves way for the undermining of the legal systems of today. One could take a look at extreme cases within the Middle East, whose rationale promote that women are entitled to less rights than men and fighting for such rights is against ones duty and is immoral, to make a stark contrast to the idea of universal morality in Kantian terms, but such an issue also arises when applied to the western world. Same sex marriage has become legal in the majority of powerful countries within the western world. However, one place that is not compliant with such a law is Russia. Therefore, homosexual citizens within this country are expected to abide by their duty to not desire marriage, as this is morally wrong. In turn, lawyers fighting for such gay rights, and even representing people who are being prosecuted for being openly gay, are in fact immoral. The clash of such a value that is shared by other superpower countries puts a strain on the third formulation of Kant’s theory.
Kantian theory hereby seems to have no grasp on the reality of morality and duty in everyday life, as not everything can be fit into Kant’s ethos when looked at in context. Failure to acknowledge other feelings that do in reality drive human beings, such as compassion, leads this rigid theory to be hard to apply to legal ethical thinking on a practical level. Surprisingly, although Deontological theories differ greatly from those of a consequential nature, the lack of realistic applicability is something both trains of thought have in common. Both being extreme opposites of the other may be the issue that lies in hand in their inability to be applied successfully in relation to legal ethics, as they both lie on opposite ends of the spectrum in the sense of thinking. Therefore, maybe a look at a less extreme duty and act based theory is needed.
Virtue theory
Virtue theory is a branch of ethical thinking that focuses on the concept of one’s character as a basis for morality, rather than the concepts of duty or acting for a consequence. Although a teleological theory, it does not focus on acting in order to bring about a good consequence. Many virtue theorists take their insight from Aristotelian ethics. Aristotle declared through his thinking that the virtuous person is that which holds the ideal character traits, and therefore is morally superior. These traits, when nurtured, become stable grounds for moral thinking. In common with Utilitarianism, Aristotle saw that happiness was the main aim in one’s life, needed to flourish and gain a complete life. He also identified rationality as a solely unique trait to humanity, much like deontology. He determined that eudemonia was formed by rational activity and virtue within a complete life, often referred to as productive self-actualization, almost bringing together aspects of both moral theories into one.
Fuller’s natural law
Natural law theorist Lon Fuller advocated that the law should be subject to a procedural morality, whereby the process of lawmaking is the focus rather than the typical substantive morality of law associated with natural law theory. Looking at what is required to make the law work, Fuller established the concept of ‘inner morality’ that, he argued, must be embodied by a legal system. To be a true legal system, Fuller argued that laws should hold certain principles. These are that of; generality throughout the rules, promulgation, prospectivity, clarity, logical consistency, feasible to obey in practice, consistency through time and congruence between official action and the rules as announced . Without such principles, laws hold no inner morality and therefore are not law at all.
David Luban, in his book Legal Ethics and Human Dignity, interprets Fuller’s theory in order to establish it as regarding the professional ethics of lawmaking, whereby the morality of lawmaking is the focus rather than the morality of law itself. Supporting Fuller’s concept of ‘role morality’, Luban argues “lawmaking is a profession with a distinctive professional ethics” , and furthermore argues that morality is integrated into a person’s life through their aspirations. The implication of this in relation to legal ethics is that when aspiring to practice law, one would strive to excel in this field, and therefore would be morally sufficient within their practice. Here a more realistic view and application of morality in comparison with the rigidity of utilitarianism, deontology and virtue theory can already be seen.
Paired with Fuller’s notion of role morality, and the idea that the main objective of the practice of law is to uphold human dignity , Luban offers a realistic notion of what is morally acceptable within the practice of legal ethics in comparison the rigidity of morality within Deontology, Utilitarianism and Virtue theory. Rather than limiting the agent’s moral spectrum as to what is right and what is wrong, Lubans application of Fuller’s theory allows the moral agent to move freely as long as the notion of human dignity is being upheld in their practice.