Even good lawyers get a bad rap. One explanation for this is that the professional rules governing lawyers permit and even require behavior that strikes many as immoral. The standard accounts of legalethics that seek to defend these professional rules do little to dispel this air of immorality. The revisionary accounts of legalethics that criticize the professional rules inject a hearty dose of morality, but at the cost of leaving lawyers unrecognizable as lawyers. This (...) article suggests that the problem with both the professional rules and the extant accounts of legalethics is that they treat the role of lawyer as largely uniform, whereas lawyers actually serve several importantly different roles in different contexts. The central insight of the article is that legalethics must be fundamentally context-sensitive: what lawyers are morally permitted or required to do depends on the background context in which they are working. Additionally, by taking context into account, this article is the first to present a theory of legalethics as appropriately shaped and constrained by normative political philosophy and norms of political legitimacy. -/- Specifically, the article argues that people act as lawyers in three different contexts: State v. Individual (situations in which the State seeks to apply some general law to a particular individual), Individual v. Individual (situations in which private individuals are engaged in a dispute), and Individual v. State (situations in which individuals object to State conduct on constitutional or other grounds unrelated to the question of whether a general law applies to their particular case); that the value of lawyers, qua lawyers, stems from a different source in each of these contexts; and that a theory of legalethics must take into account both of these first two claims. This article develops one such theory - the Multi-Context View. To demonstrate how the theory applies in practice, the article applies the Multi-Context View to two significant issues in legalethics: the ethical issues involved in deciding whether to represent a client and the moral permissibility of the use of tactical delay. (shrink)
David Luban is one of the world's leading scholars of legalethics. In this collection of his most significant papers from the past twenty-five years, he ranges over such topics as the moral psychology of organisational evil, the strengths and weaknesses of the adversary system, and jurisprudence from the lawyer's point of view. His discussion combines philosophical argument, legal analysis and many cases drawn from actual law practice, and he defends a theory of legalethics (...) that focuses on lawyers' role in enhancing human dignity and human rights. In addition to an analytical introduction, the volume includes two major previously unpublished papers, including a detailed critique of the US government lawyers who produced the notorious 'torture memos'. It will be of interest to a wide range of readers in both philosophy and law. (shrink)
Examining legalethics within the framework of modern practice, this book identifies two important ethical issues that all lawyers confront: the difference between the role of lawyers and the role of judges in pursuing justice, and the conflicting responsibilities lawyers have to their clients and to the legal system more broadly. In addressing these issues, LegalEthics provides an explanation of the duties and dilemmas common to practicing lawyers in modern legal systems throughout the (...) world. The authors focus their analysis on lawyers in independent practice in modern capitalist constitutional regimes, including the United States, Japan, Europe, and Latin America, as well as the emerging legal systems in China and the former Soviet bloc, to develop connections between the legal profession and political systems based on the rule of law. They find that although ethical tension is inherent in the legal practice of all these societies, the legal profession is essential to stable political institutions. (shrink)
In countries outside the developed world, although writers have written commentaries on specific legal codes, very little attention has been given to legal writing which has focused specifically on the ethics of the legal profession. This book makes a special contribution in that regard providing, as it does, a comparative study of prevailing efforts to enhance ethical standards in a profession potentially in crisis and under much public scrutiny. Countries which have been examined include the UK, (...) the US, Canada, South Africa, and countries in the Pacific, South East Asia and the Caribbean. Valuable guidance and learning are provided on such topical issues as wasted costs orders, conflicts of interests, legal and judicial codes, confidentiality, privilege and the ethics of the criminal process, where the jury system comes in for critical evaluation. This book will be a valuable text on the ethics and status of the profession. It will be of considerable interest to law students, practitioners and legal academics, Bar Associations, Attorneys-General and Directors of Public Prosecutions as well as members of the judiciary. (shrink)
Initial reflections on ethics, morality, and justice in an adversary system -- Undertaking a case -- Communication and confidentiality -- Loyalties and conflicts of interest -- Who controls the case? How should lawyers and clients share decisionmaking? -- What price truth? What price justice? What price advocacy? -- Tactics, free speech, and playing by the rules -- The special problems of the government lawyer -- The lawyer acting as advisor -- The lawyer as part of the law firm structure (...) -- Mental health, substance abuse, and the realities of modern practice -- The economics of lawyering -- Admissions, discipline, and some other rules of lawyering. (shrink)
At the International LegalEthics Conference IV held at Stanford Law School between 15 and 17 July 2010, one of the two opening plenary sessions consisted of a panel who debated the proposition that legalethics should be mandatory in legal education. The panel included leading legalethics academics from jurisdictions around the world—both those where legalethics is a compulsory part of the law degree and those where it is not. (...) It comprised Professors Andrew Boon, Brent Cotter, Christine Parker, Stephen L Pepper and Richard Wu, and was organised and chaired by Professor Kim Economides. This is an edited version of the panel's discussion. It provides a useful summary of the state of legalethics teaching in the jurisdictions represented as well as a marshalling of the arguments for and against legalethics as a required course in the university law degree. (shrink)
Justice system reform is being implemented in Japan. The number of attorneys ( bengoshi ) has substantially increased and concerns have been raised about the impact on the profession's quality and ethics. The profession has called for a slowdown in the increase. Does the increase really adversely affect legalethics in Japan? Should the pace of the reform be slowed down, from the perspective of maintaining legalethics? This paper begins to answer these questions through (...) empirical analysis of (1) whether there is an increase in cases of ethical concerns; and (2) whether such an increase (if any) is caused by the increase in bengoshi . The paper then investigates whether there is an over-supply of bengoshi . It concludes with a discussion of the negative impact that a slowdown of the increase may have on access to justice and the bengoshi profession's (ethical) responsibilities. (shrink)
Philosophical discussions of legalethics should be oriented around the generative problem , which asks two fundamental questions. First, how does the lawyer's role generate reasons? Second, what kinds of reasons can this role generate? Every extant theory of legalethics is based on a solution to the generative problem. On the generative method , theories of legalethics are evaluated based on the plausibility of these solutions. I apply this method to three prominent (...) theories of legalethics, finding that none is based on a fully satisfactory solution to the generative problem. This method has important implication for the study of legalethics. Philosophically, it moves theoretical debates about legalethics closer to other debates about the sources of normativity, like those concerning promises. Further, this method identifies a realworld dimension to these theoretical debates. Focusing on the generative problem allows for the empirical verification of hypotheses about legalethics that have, to date, largely been conjectured. (shrink)
The processes of economic integration induced by globalization have brought about a certain type of legal practice that challenges the core values of legalethics. Law firms seeking to represent the interests of internationally active corporate clients must embrace and systematically apply concepts of strategic management and planning and install corporate business structures to sustain competition for lucrative clients. These measures bear a high conflict potential with the core values of legalethics. However, we observe (...) in parallel a global consolidation of these core values through an enhanced cooperation of national professional bodies, the use of international codes, and comparative legalethics teaching and research. Furthermore, state regulation of the legal profession is concerned with preserving the core values of legalethics to conserve the lawyer's role in upholding the rule of law. This article defends that legalethics is adapting to the pressures exerted by "managerial" approaches to legal practice without this altering core values that underlie legalethics. (shrink)
Descriptions of the relationship between lawyers and journalists range from 'uneasy' and 'sometimes prickly' to 'strained and often combatant.' This paper explores the ethical frameworks within which lawyers and journalists work and analyses the differences between the two, especially in the context of court reporting. It begins with a consideration of whether or not journalists are members of a profession, recognising that one marker of a profession is the existence of an ethical code. The codes of ethics of both (...) lawyers and journalists are compared and contrasted. The ethical frameworks are also superimposed over two fundamental but competing principles of justice in a Western democracy: the principle of open justice and the right to a fair trial. The struggle to reconcile these two principles creates tensions between lawyers and journalists. Finally, the paper examines the ethical principles which guide lawyers' interactions with journalists. The author concludes that the fundamental difference between lawyers and journalists lies in the journalist's lack of a client. In lacking a fiduciary duty to a client, the lens through which a journalist views court reporting is never going to match in focus with the view of the lawyer, whose duties to both an individual client and the court itself will inevitably clash with a journalist whose aim is to disseminate information, as quickly as possible, to a faceless public. (shrink)
In the recent spate of philosophers' writing on legalethics, most contend that lawyers' professional role exposes them to great risk of moral wrongdoing; and some even conclude that the role's demands inevitably corrupt lawyers' characters. In assessing their arguments, I take up three questions: (1) whether philosophers' training and experience give them authority to scold lawyers; (2) whether anything substantive has emerged in the scolding that lawyers are morally bound to take to heart; and (3) whether lawyers (...) ought to defer to philosophers' claims about moral principle. I return a negative answer to each. (shrink)
Among members of the legal profession and judiciary throughout the world, there is a genuine concern with establishing and maintaining high ethical standards. It is not difficult to understand why this should be so. Nor is it difficult to see the professional standards are not completely divorced from ordinary morality. Indeed, legalethics and professional responsibility are more than a set of rules of good conduct; they are also a commitment to honesty, integrity, and service in the (...) practice of law. In order to ensure that the standards established are the right ones, it is necessary first of all to examine important philosophical and policy issues, such as the need to reconsider the boundaries between, on the one hand, a lawyer's obligation to a client and, on the other, the public interest. It is also to be appreciated that conflicts of interest are pervasive and that all too often they are so common that they are not recognized as such. Yet rarely is public policy clearly cut. -/- The underlying themes of this book are: BL that the move to more definite rules is not only inevitable but also desirable -/- BL that existing codes of professional practice cannot simply be treated as a system of specific rules -/- BL that the current set of ethical rules is contestable and requires further refinement, perhaps even radical surgery -/- BL and that legalethics must be conceived in the more general area of professional responsibility -/- The wider ethical issues of the operation of the legal profession as a whole are now firmly on the agenda. Both law schools and law professionals have a role to play in developing acceptable standards in this area and it is therefore appropriate that the essays in this volume are written by a distinguished group of law teachers and practitioners together with senior members of the judiciary. -/- The book opens with an overview chapter, followed by three chapters analysing the ethical rules pertaining to the judiciary, the Bar, and solicitors, written by, respectively, the Master of the Rolls, Anthony Thornton, and Alison Crawley and Christopher Bramall. The following three chapters look at the specific issues of confidentiality (Michael Brindle and Guy Dehn) and the particular ethical problems in the family and criminal law jurisdictions (Sir Alan Ward and Professor Andrew Ashworth respectively). Chapter 8, by Sir Alan Paterson, discusses the teaching of legalethics, whilst Chapters 9 and 10, by Marc Galanter, Thomas Palay, and Cyril Glasser put the subject in its wider social and professional context. The book finishes with a chapter which examines what lawyers may learn from looking at the study of medical ethics. (shrink)
Ethics and regulation have become catchwords of the late 1990s, yet relatively little has been written about the ethical discourse and regulation of the legal professions in England and Wales. This book represents the first attempt to subject the ethical discourse of the English legal professions to in-depth analysis and sustained critique. Drawing on insights from moral philosophy, social theory, the sociology of the legal profession, public law theories of regulation, and the extensive American literature on (...) lawyers' ethics, it argues that, in seeking to provide definitive answers to particular problems of professional conduct, professional legalethics has failed to deliver an approach which requires lawyers actively to engage with the ethical issues raised by legal practice. Through an analysis of the core issues facing lawyers, the authors locate this failure in the profession's reliance on a liberal and adversarial role morality that conceptualises the ethical values of human dignity, autonomy and equality in a formalistic and narrowly legalistic manner. This encourages lawyers to overlook the real invasions of these values so often wrought by upholding clients legal rights, and to ignore the competing claims of affected third parties, the wider community and the environment In seeking to move beyond critique, the authors develop throughout the book a contextual approach to individual ethical decision-making and outline a range of institutional, regulatory and educational reforms which, they suggest, could form the basis for a more ethical brand of professionalism. -/- Professional LegalEthics: Critical Interrogations is a wide-ranging and thought-provoking analysis written for lawyers, ethicists and policy-makers interested in this neglected area of professional ethics and regulation. (shrink)
This is the first collection of essays on legalethics which addresses the subject comparatively. There is no similar work in the US. The empirical research from which the conference originally sprang remains a rare example of collaborative research between academic and practising lawyers. From the professor's side, public concern at the cost and quality of justice is forcing them to look beyond practitioners' manuals and the trade press for ideas. -/- From the academic side there is great (...) interest in the study of ethics and culture in the legal profession and the answers which this study may provide to wider questions concerning the content and practice of law at the access to justice debate. (shrink)
This article provides a critical evaluation of Ben Golder’s and Peter Fitzpatrick’s recent Foucault’s Law, which it characterizes as a decisive intervention into both legal theory and Foucault scholarship. It argues in favour of Golder’s and Fitzpatrick’s effort to affirm the multiplicity of Foucault’s work, rather than treat that work as either unified by a consistent position or broken into a series of relatively stable periods. But it also argues against Golder’s and Fitzpatrick’s analysis of Foucault’s understanding of the (...) law through a conceptual framework borrowed from Derrida, and especially Derrida’s distinction between law and justice. It shows how this approach to reading Foucault effectively transforms some of his more powerful criticisms of the law into defences of justice. In place of this interpretation, the second half of this paper initiates a reading of Foucault’s later work on ethics and the self in the ancient world. It develops the theme of an ethics, or a way of life, that takes shape at a distance from politics on the one side and law on the other. (shrink)
This rich collection, popular among teachers and students alike, provides an in-depth look at major cases that have shaped the field of medical ethics. The book presents each famous (or infamous) case using extensive historical and contextual background, and then proceeds to illuminate it by careful discussion of pertinent philosophical theories and legal and ethical issues.
Global firms need to decide on the correspondence between their corporate ethics and the globalization of their activities. When firms go global, they face ethical complexities as they operate in different legal and cultural environments that may impact the admissibility and appropriateness of their approach to institutionalize and implement corporate ethics. Global firms may have good reasons to establish global codes of ethics that are to be obeyed by all employees worldwide. However, developing and implementing such (...) codes can be rather difficult due to various, and partly competing, conditions in the countries of operation. In this article, two legal disputes are analyzed to illustrate some of the difficulties that may emerge when firms globalize their codes of ethics. I argue that these conflicts can be mitigated when firms carefully design their codes and the processes of code implementation. (shrink)
Members of the legal, medical and accounting professions are guided in their professional behavior by their respective codes of ethics. These codes of ethics are not static. They are ever evolving, responding to forces that are exogenous and endogenous to the professions. Specifically, changes in the ethical codes are often due to economic and social events, governmental influence, and growth and change within the professions. This paper presents an historical analysis of the major events leading to changes (...) in the legal, medical and accounting codes of ethics. (shrink)
Current literature suggests that the adversarial legal system may undergo some changes or may even be transformed by a recent influx of women lawyers into the profession. Such research indicates that women may approach ethical problems differently than men. This paper examines the responses of family law lawyers in Vancouver, British Columbia and the surrounding Lower Mainland to a hypothetical case which requires an assessment of professional responsibilities in light of potential conflicts in personal moral values.
Many areas of business ethics research are “sensitive.” We provide an empirical assessment of the randomized response techniquewhich provides absolute anonymity to subjects and “legal immunity” to the researcher. Beyond that, RRT techniques provide complete disclosure to subjects, unconditional privacy is maintained, and there is no deception.
This paper discusses the implications of the ethical theory of Emmanuel Levinas for theoretical debates about legal obligation. I begin by examining the structure of moral reasoning in light of Levinas's account of ethics, looking particularly at the role of the third party (le tiers) in modifying Levinas's primary ethical structure of the face to face relation. I then argue that the primordial role of ethical experience in social discourse, as emphasised by Levinas, undermines theories, such as that (...) of H. L. A. Hart, that propose a systematic distinction between legal and moral species of obligation. (shrink)
This paper argues for the adoption of pluralist pragmatism about concepts of law. The first part of the paper introduces the argument by reference to the debate over conceptual prescriptivism in the contemporary literature on the methodology of legal theory. The second part of the paper offers a method for recognising pluralism in traditions of jurisprudential inquiry: it does so on the basis of the use of modes of objectification that can be said to underwrite the construction of concepts (...) of law. A number of examples of such modes are offered, with the focus thereafter being on two such modes: on the one hand, the explanatory paradigm of reason; and on the other hand, the explanatory paradigm of cause. A map of traditions of jurisprudential inquiry is sketched on the basis of these two modes. The third part of the paper goes on to show how combining the prescriptive resources that follow from the two traditions of jurisprudential inquiry classified in such a manner makes our response to certain practical context more robust. The four practical contexts are: the exercise of judicial behaviour; the structure of international law; legal education; and, legal scholarship. It is only by adopting the pluralist pragmatism espoused by the ethics of legal theory that we can avoid theoretical insularity (the belief that any one theoretical picture is capable of corresponding truthfully to the world) and theoretical imperialism (the belief that any one theoretical picture can be used as a foundation for a prescriptive agenda). (shrink)
This paper argues against the continuing domination, within legal theory, of the ambition to determine the mode of law's existence and our access to it. It illustrates the problems with such an approach via a close reading of George Pavlakos' recent work, Our Knowledge of the Law (2007). It seeks to replace the dominance of that ambition with the ethics of legal theory, i.e., the avoidance of both theoretical insularity and theoretical imperialism. Theoretical insularity ensues when we (...) come to think that any one of our theoretical pictures (of law, legal systems and legal work) provides us with access to that which exists, or how we really are, thereby missing the utility of other theoretical pictures. We come to see the utility of other theoretical pictures when we subject them to the scrutiny of practical contexts, but in doing so, we should not be tempted to think that any one theoretical picture can come to govern what we ought to do in any specific practical context (should we do so, we fall foul of theoretical imperialism). (shrink)
This article provides a critical introduction to an issue fo Ratio Juris concerend with two contrasting schools of legal idealism: the so-called Sheffield School (Beyleveld, Brownsword and colleagues) and the “discourse ethics” school of Habermas and Alexy. The article focusses on four issues: (1) whether a "claim to correctness" is a necessary feature of law, (2) the connection between correctness and validity, (3) Alexy's argument for a "qualifying connection" between law and morality, and its counterpart in the Sheffield (...) School's approach, and (4) Alexy's case for the "Radbruch formula": that "extreme injustice is not law”. While rejecting both versions of the case for legal idealism, I argue that both schools offer vaulable, and broadly similar, insights into what makes a legal system morally legitimate. (shrink)
A considerable literature exists regard-ing the moral obligation to keep one's promises. Several authors have focused on the exceptional circumstances which may or should excuse this moral duty. Less frequently discussed is the question of how this general moral obligation and its possible exceptions play out in the context of negotiable written promises to pay money, i.e., so-called "commercial paper."This paper focuses on the application of the legal rules governing commercial paper, and on the ethical implications involved in the (...) application of those rules. More specifically, it asks whether the assertion of the technical doctrine known as "holder in due course," and the denial of that status in some cases, promotes ethical behavior in the marketplace. By examining the circumstances of one case, involving a substantial investment and a large bank, I hope to shed some light on how the legal and ethical rules do in fact "intersect.". (shrink)
Although interest in business ethics has rapidly increased, little attention has been drawn to the relationship between ethics and sexual harassment. While most companies have addressed the problem of sexual harassment at the organizational level with corporate codes of ethics or sexual harassment policies, no research has examined the ethical ideology of individual employees. This study investigates the relationship between the ethical ideology of individual employees and their ability to identify social-sexual behaviors in superior-subordinate interactions. The results (...) indicate that ethical ideology does have an effect on employees' ability to identify verbal sexually harassing behaviors. This effect, however, is not demonstrated on nonverbal sexually harassing behaviors. (shrink)
The name "School of Salamanca" refers to a group of theologians and natural law philosophers who taught in the University of Salamanca, following the inspiration of the great Thomist Francisco de Vitoria. It turns out that the Scholastics were not simply medieval, but began in the 13th century and expanded through the 16th and 17th centuries; and they developed some original theories about economics and international law.Why should a few men mainly interested in theology and ethics apply themselves in (...) analyzing issues so far from their worries? The answer leads us to a revision of the morality rules, due to the new problems in business ethics. Thus, for example, the appearance of inflation made them have doubts about the merchant's morality. In order to solve this and other problems, they began to analyze the new and suspicious economic activity. As a result of their observations about ethical issues they discovered some advanced theories for the history of economic thought, such as the early formulation of the quantity theory of money. (shrink)
This paper offers a listing of references to religious ethics in recent Anglo-American philosophical literature, organized in terms of a critical analysis of the main lines of argument to be found there. The principal focus is on metaethics, although references are included to other aspects of religious ethics. The author maintains that the case for a logical and/or a linguistic relation between religion and ethics is much stronger than is generally recognized in the philosophical discussions of these (...) issues. (shrink)
This paper argues that the development of ethical education in law schools ought not to be restricted to the use of textual resources. In the first part of the paper, the continuing dominance of text as the object of analysis in legal theory, legal scholarship and legal practice is illustrated. The dangerous implications of this continuing dominance on the capacity to see and recognise the great variety and depth of suffering and vulnerability is also discussed. It is (...) argued that recourse ought to be had to those traditions of moral philosophy that emphasise the importance of cultivating vision as a form of moral discipline - a discipline, in turn, that can benefit a great deal from the use of non-textual resources, and in particular, from both the appreciation of and involvement in the visual and movement-based arts. In the second part of the paper the treatment of ethical education in the recent Carnegie Foundation for the Advancement of Teaching Report on Educating Lawyers is discussed. It is argued that we ought not to subsume the development of ethical education under the canopy of professionalism - a canopy already saturated with text, both in the form of the substantive and procedural law that is expected to be applied, and in the form of the evaluation of professional conduct in accordance with the relevant professional code. Finally, in the third part of the paper, a number of policy recommendations are made. Ultimately, the paper calls for an ethical education that combines both textual and non-textual resources. It is only via such a combination that law schools can provide sufficient opportunities for the range of ethical experiences that are required in order to enhance the effective development of the ethical imagination in law students. (shrink)
This collection explores the subject of conflicts of interest. It investigates how to manage conflicts of interest, how they can affect well-meaning professionals, and how they can limit the effectiveness of corporate boards, undermine professional ethics, and corrupt expert opinion. Legal and policy responses are considered, some of which (e.g., disclosure) are shown to backfire and even fail. The results offer a sobering prognosis for professional ethics and for anyone who relies on professionals who have conflicts of (...) interest. The contributors are leading authorities on the subject in the fields of law, medicine, management, public policy, and psychology. The nuances of the problems posedby conflicts of interest will be highlighted for readers in an effort to demonstrate the manyways that structuring incentives can affect decision making and organizations' financial well-being. (shrink)
Action-based legal theory is a discrete branch of praxeology and the basis of an emerging school of jurisprudence related to, but distinct from, natural law. Legal theory and economic theory share content that is part of praxeology itself: the action axiom, the a priori of argumentation, universalizable property theory, and counterfactual-deductive [...].
This 12-chapter text prepares students to understand the legal and ethical issues inherent to working in an ambulatory health care setting. It features pertinent legal cases, anecdotes, and sidebars related to health-related careers. Content has been updated and special attention has been paid to legislation affecting health care.