https://orcid.org/0000-0002-6977-3939
![Sample our Humanities journals, sign in here to start your FREE access for 14 days]({"type":"image" , "src" : "/sda/5939/TOC-Subject-Sample-2021-Humanities.jpg"})
ABSTRACT
One of the frequent philosophical problems of legal ethics is the conflict between common and role morality. This situation is where a lawyer's actions are evaluated differently by these two sets of moral norms. The article seizes on this as a conflict between two conventional moralities that need to be resolved with the help of a justificatory morality and thus an appropriate theory of normative ethics. It offers as a possible response a variant of consequentialism that draws on utilitarianism and brings it closer to pragmatism. This approach seeks to preserve the traditional advantages of utilitarianism, which are minimalist and plausible normative assumptions, and an excellent ability to resolve moral conflicts. At the same time, it takes into account the complex nature of the world in which we live and our epistemic uncertainty, which brings it closer to pragmatism. The author confronts this theory with some existing approaches to resolving the conflict between the common and role morality and tries to show that it is at least as plausible as they are and should have a place among them. Finally, the article concludes with an analysis of the famous case of Alton Logan as its practical application.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 I thank the anonymous reviewers for their interesting and useful comments, which helped me to improve this text.
2 Bradley W. Wendel argues that how a lawyer is to justify an act that, outside the exercise of a professional role, would invite moral condemnation is a central question in legal ethics. Bradley W Wendel, ‘The Limits of Positivist Legal Ethics: A Brief History, a Critique, and a Return to Foundation’ (2017) 30 (2) Canadian Journal of Law & Jurisprudence 445.
3 On the definition of the moral dilemma, cf. Paweł Skuczyński, The Concept of Dilemma in Legal and Judicial Ethics (C. H. Beck 2018) 3, 18 et seq.
4 Legal ethics is not understood in this text as an examination of the law of lawyering, but as one of the disciplines of ethics. For the fact that lawyers need not only the former but also the latter cf. Christine Parker and Adrian Evans, Inside Lawyers' Ethics (Cambridge University Press 2006) 4. My article, therefore, primarily examines a question falling within the philosophy of law, which cannot be resolved by a simple analysis of existing legislation.
5 Tim Dare, The Counsel of Rogues? A Defence of the Standard Conception of the Lawyer's Role (Ashgate 2009)
6 Charles Fried, ‘The Lawyer as Friend: The Moral Foundation of the Lawyer-Client Relation’ (1976) 85 (8) Yale Law Journal 1060–89.
7 David Luban, Legal Ethics and Human Dignity (Cambridge University Press 2007). For example, David Luban, Lawyers and Justice. An Ethical Study (Princeton University Press 1988).
8 Stephen L Pepper, ‘The Lawyer’s Amoral Ethical Role: A Defense, A Problem, and Some Possibilities’ (1986) 11 (4) American Bar Foundation Research Journal 617.
9 William H Simon, The Practice of Justice. A Theory of Lawyers´ Ethics (Harvard University Press 2000) 9.
10 Bradley W Wendel, Ethics and Law. An Introduction (Cambridge University Press 2014). Wendel (n 3) 443–65.
11 Cf. Allan Gibbard, ‘Utilitarianism and Human Rights’ (1984) 1 (2) Social Philosophy & Policy 100. Russ Shafer-Landau, The Fundamentals of Ethics (Oxford University Press 2012) 126.
12 Compare with this the sociological definition of morality from the text by Charles H Whiteley, ‘On Defining “Moral”’ in Gordon Wallace and ADM Walker (eds), The Definition of Morality (The Camelot Press 1970) 22.
13 Brian H Brix, A Dictionary of Legal Theory (Oxford University Press 2004) 138–39. Joel Feinberg, ‘In Defence of Moral Rights’ (1992) 12 (2) Oxford Journal of Legal Studies 152.
14 Cf. Carla Bagnoli, ‘Reasons in Moral Philosophy in Giorgio Bongiovanni’, Gerald Postema, Antonino Rotolo, Giovanni Sartor, Chiara Valentini and Douglas Walton (eds), Handbook of Legal Reasoning and Argumentation (Springer 2018) 40.
15 This term is used e.g. James W Nickel, Making Sense of Human Rights (Blackwell Publishing 2007) 28.
16 Compare with the above conception the similar distinction between positive and critical morality with which Hart works. HLA Hart, Law, Liberty, and Morality (Oxford University Press 1982) 20.
17 Indeed, the same concern is sometimes associated with the effect of codes of ethics of the legal profession. Cf. also some ideas from the publication by Paweł Skuczyński, The Status of Legal Ethics (Peter Lang 2013) 37–38.
18 Luban also uses this terminology in some of his texts. See e.g., David Luban, ‘Freedom and Constraint in Legal Ethics: Some Mid-course Corrections to Lawyers and Justice’ (1990) 49 (2) Maryland Law Review 431.
19 Compare the alternative definition preferred by Louis Fisher. While the duties of common morality apply to all persons as moral agents, the role morality entails specific duties tied to a particular professional role. Louis Fisher, ‘Civil Disobedience as Legal Ethics: The Cause-Lawyer and the Tension between Morality and “Lawyering Law”’ (2016) 51 (2) Harvard Civil Rights-Civil Liberties Law Review 485.
20 Cf. definition of professional role in Dare (n 5) 30.
21 Cf. ibid 33.
22 While Justin Oakley and Dean Cocking ask why norms of role morality should not be abandoned in favour of more general and broadly formulated moral standards, they answer this question by giving reasons, specifically, for example, that they would not be sensitive enough to the specificities of professional roles. Justin Oakley and Dean Cocking, Virtue Ethics and Professional Roles (Cambridge University Press 2003) 2–3.
23 Cf. Luban (n 18) 443.
24 Skuczyński (n 3) 134.
25 Cf. Daniel Markovits, A Modern Legal Ethics. Adversary Advocacy in a Democratic Age (Princeton University Press 2008) 25.
26 Dare (n 5) 2.
27 On the moral duty to obey the law and its relation to legal ethics, see, for example, the extensive passages in the text by David Luban, Lawyers and Justice. An Ethical Study (Princeton University Press 1988) 31–49. Fisher (n 19) 489 et seq.
28 Fried (n 6) 1060.
29 ibid 1066.
30 ibid 1066–67.
31 ibid 1071.
32 ibid 1073–74.
33 Bradley W. Wendel is also critical of Fried's theory. For this see e.g., Wendel (n 2) 446. Wendel (n 10) 38–40.
34 Stephen L. Pepper, ‘The Lawyer’s Amoral Ethical Role: A Defense, A Problem, and Some Possibilities’ (1986) 11 (4) American Bar Foundation Research Journal 617. Finally, even Fried argues in his text that a lawyer's action is moral because it supports and expresses his client's autonomy within the legal system. Fried (n 6) 1074.
35 David Luban works with dignity in this way in his monograph Legal Ethics and Human Dignity. See Luban (n 7) 66–89.
36 Alan F. Gewirth, Reason and Morality (The University of Chicago Press 1978) 9. James Rachels a Stuart Rachels. The Elements of Moral Philosophy (McGraw-Hill 2012) 11.
37 Cf. Wendel (n 2) especially p. 443, 449–50.
38 ibid 451.
39 Cf. some reflections of Jürgen Habermas, in which he draws attention to some cognitive, motivational and organizational problems of morality, which we try to deal with the help of law. Jürgen Habermas, Between Facts and Norms. Contributions to a Discourse Theory of Law and Democracy (MIT Press 1996) 114–18.
40 Andrew B. Ayers, ‘What if Legal Ethics Can't be Reduced to a Maxim?’ (2013) 26 (1) The Georgetown Journal of Legal Ethics 13.
41 John Rawls, Political Liberalism (Columbia University Press 2005).
42 Cf. Wendel (n 2) 457.
43 Ayers (n 40) 23.
44 Luban (n 27) 18.
45 ibid 92.
46 ibid 67 et seq.
47 Luban (n 18) 427–28.
48 Cf. Fisher (n 19) 486.
49 Luban (n 27) 125.
50 ibid 132.
51 ibid 140.
52 David Wasserman, ‘Should a Good Lawyer Do the Right Thing? David Luban on the Morality of Adversary Representation’ (1990) 49 (2) Maryland Law Review 395.
53 ibid 397.
54 ibid 398. Cf. that to William H. Simon's approach. William H Simon, ‘The Ethics of Criminal Defense’ (1993) 91 (7) Michigan Law Review 1703.
55 Wasserman (n 52) 404.
56 Luban (n 18) 429.
57 Cf. ibid 431–32.
58 ibid 432.
59 ibid 433.
60 ibid 439, 442.
61 Dare (n 5) 37.
62 ibid 42.
63 Richard Brandt, ‘Utilitarianism and Moral Rights’ (1984) 14 (1) Canadian Journal of Philosophy 12.
64 ibid.
65 Cf. definition of consequentialism in Tim Mulgan, The Demands of Consequentialism (Clarendon Press 2001) 3.
66 For example, imagine two traders who sell goods to people without defects. The first does so because he fears that the law would otherwise punish her. The second is motivated by the fact that she sees selling defective products as morally wrong. While the first trader is likely to start offering defective products to people if she ceases to face the institutional pressure, the second will always try to avoid selling them. Thus, the second incentive will have better results in the long run. Thus, on the basis of consequentialism, we can also evaluate people's different motives and then encourage the development of some of them.
67 Cf. Roger Crisp, Routledge Philosophy Guidebook to Mill on Utilitarianism (Routledge 1997) 7, 20.
68 Cf. Mulgan (n 65) 38.
69 Compare with this the famous statement that everyone counts only once and no one counts more than once, which John Stuart Mill attributed to Jeremy Bentham. John Stuart Mill, Utilitarianism (The Floating Press 2009) 112.
70 For the definition of rule utilitarianism, see: Brandt (n 63) 3–4. Dale E Miller, ‘Rule utilitarianism’ in Ben Eggleston and Dale E Miller (eds), The Cambridge Companion to Utilitarianism (Cambridge University Press 2014) 146 et seq. Shafer-Landau (n 11) 149. JJC Smart and Bernard Williams, Utilitarianism for and against (Cambridge University Press 1998) 9.
71 The transplant dilemma serves as one of the traditional counterarguments against the act utilitarianism. David Luban also mentions and comments on it in his work. At the same time, he points out that rule utilitarianism is a possible solution here. On this, see Luban (n 18) 438. For the original description of this dilemma, see Judith Jarvis Thomson, 'The Trolley Problem' (1985) 94 (6) Yale Law Journal 1396.
72 Mulgan (n 65) 62–63. Tim Mulgan, Understanding Utilitarianism (Acumen 2007) 115. Smart and Williams (n 70) 42.
73 Cf. Richard B. Brandt, Morality, Utilitarianism, and Rights (Cambridge University Press 1992) 10, 142.
74 On the reasons for acting according to the general rules, see also Wasserman (n 52) 401.
75 Martin Hapla, Utilitarismus a filozofie lidských práv (Leges 2022) 59. Smart and Williams (n 70) 10. Also cf. Shafer-Landau (n 11) 151–52.
76 For a more detailed description of this theory, see Hapla (n 75) 71 et seq.
77 Ayers (n 40) 2–3.
78 One of the anonymous reviewers of this text made a good point that in the case of a plurality of incommensurable values, maximisation is not possible. However, it seems to me that in such a case it is actually difficult to satisfactorily resolve even any conflicts between such values. Despite this, we routinely make choices in our lives that presuppose such decisions. Utilitarianism is traditionally associated with monistic theories of welfare. I do not rule out this connection even with pragmatic utilitarianism. Its relation to pluralism is rather due to its ability to reflect the breadth of moral attitudes in society as empirical facts.
79 ibid 26.
80 ibid.
81 ibid 27.
82 ibid 30. On this objection, cf. also Oakley and Cocking (n 22) 31, 33.
83 The shift to virtue ethics in legal ethics is also rejected by Tim Dare. Dare (n 5) 102.
84 Hapla (n 75) 63–64.
85 Cf. Dare (n 5) 59. Luban then puts it in the context of the value of the social institution from which the professional role grows. Luban (n 18) 427.
86 This argument is also mentioned in Luban (n 18) 436–37. Wasserman (n 52) 399. Luban adds an interesting counter-argument when he states that from the point of view of consequentialism it would be correct not to consider it in such a generalised form, but rather from the position of an individual agent in a particular case. From that perspective, the consequences of a breach of confidentiality might even appear to be relatively insignificant. I consider that this counter-argument is irrelevant in the context of the argument I have put forward, because at this stage we are not yet considering what a particular agent should do, but how the legislator should set the general rules and the mechanisms for their enforcement. Finally, Luban himself comments on it in the sense that it is a generalizing argument that can be well grasped on the basis of rule consequentialism.
87 Cf. also Wasserman's reflections on the different position of the legislator and the individual in the case of a conflict between common and role morality. Wasserman (n 52) 403.
88 Finally, Logan's case could be escalated by putting the death penalty in place of imprisonment.
89 I am not alone in my friendliness toward at least some versions of consequentialism. For example, that rule consequentialism can be a plausible approach in the area of legal professional ethics is acknowledged by Justin Oakley and Dean Cocking (though they themselves lean toward virtue ethics). Oakley and Cocking (n 22) 134.