Legal Ethics

Explores a tension between clients' rights to informational privacy and lawyers' rights to flourishing privates lives.

Examines Applbaum's elaboration, on contractualist grounds, of a plausible understanding of adversarial ethics, primarily but not exclusively in the contest of the legal system. Raises criticisms of what are arguably unnecessary concessions and offers the behavior of US government lawyers in the Korematsu case as an example for consideration.

In responding to an unjust legal situation involving human rights abuses, one approach is to seek a selective ban on some abuses if a more comprehensive ban is not feasible politically. While such an approach to embryo research or abortion, for example, can reasonably be applied, much harder to defend is regulation—that is, giving permission or instructions for others to do or prepare to do what we believe is morally wrong. Regulation necessarily involves us in wrongly intending that others choose (...) wrongly, that is, in formal cooperation with evil. We should choose other means of making a bad situation better: selective banning or discouragement by, for example, withholding funding, and the mandating of acts that are good or potentially good in the context in which they are mandated. (shrink)

Unveräußerliche Rechte kann man nicht freiwillig aufgeben oder übertragen. Nicht nur Grundrechte können unveräußerlich sein. Unser Rechtssystem schränkt auf unterschiedliche Weisen die Verfügung über gewisse Rechte ein. Weshalb dürfen aber die Rechtstragenden nicht darüber verfügen? Handelt es sich dabei nicht um eine ungerechtfertigte Einschränkung der Vertragsfreiheit oder der möglichen Einwilligung?

Dieser Artikel befasst sich mit dem in der politischen Theorie aber auch in der Rechtsphilosophie zentralen Konzept eines unveräußerlichen Rechtes. Ein Recht ist unveräußerlich, wenn eine Rechtsträgerin oder ein Rechtsträger ihr oder sein eigenes Recht nicht aufgeben kann oder übertragen kann. Eine Unveräußerlichkeit ist eine rechtliche 'Unmöglichkeit', den eigenen rechtlichen Status zu verändern. Die rechtstragende Person kann die Pflichten die ihr gegenüber aufgrund des Rechtes geschuldet sind, nicht auflösen (vgl. Meyers 1985, S. 28) und sie kann den Rechtsadressierten keine Befugnisse (...) erteilen, um ihr Pflichten zur Nicht-Ausübung des Rechtes aufzuerlegen. (shrink)

The will theory of rights has so far been considered incapable of capturing individual rights under criminal law. Adherents of the will theory, therefore, have defended the claim that criminal law does not assign rights to individuals. In this article I argue first, that criminal law does assign individual rights and second, that the will theory of rights may enhance our understanding of these rights. The two major implications of the account are: a volenti non fit iniuria principle for criminal (...) law, and a theoretical framework for an idea of punishment as restitution. (shrink)

Mental competence, or ‘mental capacity’ as it is referred to in recent legislation in the UK, is a concept that is expanding rapidly as a common currency in health and social care services. Neelke Doorn’s “Anthropological Reflection on the Concept of Competence” makes for fascinating and highly relevant reading and the legal and ethical discussions she describes taking place in the Netherlands would appear to echo many of those that have occurred in the UK over the last 5 to 10 (...) years, but with some significant differences. However, Doorn’s new conceptualization of mental competence causes some concerns, particularly if it was to be applied in services currently provided to people where their mental capacity may be .. (shrink)

Second edition of Property in the Body, containing about fifty percent new and updated material, including a chapter on surrogacy.

Legal scholars and business ethicists are interested in many of the same core issues regarding human and firm behavior. The vast amount of legal research being generated by nearly 10,000 law school and business law scholars will inevitably influence business ethics research. This paper describes some of the recent trends in legal scholarship and explores its implications for three significant aspects of business ethics research—methodology, theory, and policy.

A formal exposition of the author’s controversial views for which Warren Burger, then on the U.S. Court of Appeals for the District of Columbia, attempted unsuccessfully to have him disbarred. The second half of the book consists of a reprint in full of the ABA’s Code of Professional Responsibility, its Canons of Professional Ethics and Standards Relating to the Prosecution and Defense Functions.

Requirement‐sensitive legal moralism is a species of legal moralism in which the legitimacy of turning moral into legal demands depends on the existence of a legitimate moral requirement, producing a legitimate social requirement, which can then ground a legitimate legal requirement. Crucially, each step is defeasible by contingent or instrumental, but not intrinsic moral factors. There is no genuinely moral sphere in which the law is not to interfere; only contingent, non‐moral factors can defeat this. Using William A. Edmundson's Three (...) Anarchical Fallacies as a foil, this idea is spelled out; it is shown why considerations based on the harm principle, consent, and the fact of pluralism do not immediately defeat it, but several problems with Edmundson's account are examined to point out where the idea could be further developed. (shrink)

Article III of the U.S. Constitution establishes an independent federal judiciary: federal courts constitute a separate branch of the national government, federal judges enjoy tenure during good behavior, and their salaries cannot be diminished while they hold office. The framers who drafted Article III in 1787 were not working from whole cloth. Rather, they were familiar with the preceding colonial and state practices, including those from New York. This essay provides a case study of New York's judicial history: the Dutch (...) period, 1621-1664; the Ducal proprietary period, 1664-1685; the Royal period, 1685-1776; and the early state period. As will be seen, New York—among the most significant of the original thirteen states—was a state groping towards a new ideal of judicial independence: an ideal that became a reality a decade after its own constitution was enacted in 1777 and at a different level of government. Significantly, the uncertain status of New York's judiciary had profound consequences for the ultimate expression of judicial independence, judicial review. (shrink)

William Wales, unlike many of his contemporaries, successfully managed to carve out a career for himself as a civilian astronomer working on a Royal Navy ship. A study of his career reveals the potential tensions and conflicts that could arise between the naval and scientific communities at the end of the eighteenth century. This article shows how on board HMS Resolution Wales skilfully negotiated and defined the new role of the civilian astronomical expert. By comparing Wales’s private journal with his (...) public logbook, this study will examine how Wales used literary techniques to consolidate his position on shore. Wales’s unusual success will be stressed by outlining how he managed to enhance his personal reputation and remain on good terms with the Resolution’s naval officers while the other men of science on Cook’s voyages frequently fell foul of Cook and the other naval officers.Keywords: William Wales; Captain Cook; Royal Observatory; Board of Longitude; Enlightenment voyages. (shrink)

. In this reply to Dahlman, the focus is on aspects that I take to be of general interest. The point to be emphasised is the absence of a critically reflexive mode of questioning on the part of Dahlman and, in general, on the part of the position he represents, namely, an empiricist and logical paradigm of atemporal cognition and control. It is argued that lawyers’ thinking de lege lata—with its distinctive connection to normativity and morals, through the unity of (...) the temporal and institutional dimensions in fused modality—can never be understood within such a framework. (shrink)

In “Professional Detachment: The Executioner of Paris,” I concluded with the cheap and some would say libelous suggestion that lawyers might accurately be described as serial liars, because they repeatedly try to induce others to believe in the truth of propositions or in the validity of arguments that they believe to be false. Good lawyers have responded with some indignation that, in calling zealous advocacy “lying,” I have misdescribed the practice of law. I wish to explain why I believe that (...) it is the practice of lawyering that engages in misdescription. (shrink)

In the movie Regarding Henry, the main character, Henry Turner, is a lawyer who suffers brain damage as a result of being shot during a robbery. Before being wounded, the Old Henry Turner had been a successful lawyer, admired as a fierce competitor and well-known for his killer instinct. As a result of the injury to his brain, the New Henry Turner loses the personality traits that had made the Old Henry such a formidable adversary.

.The legitimate impact of common morality on legal restrictions has been continuously discussed within the Western philosophy of law since Lord Patrick Devlin in the late 1950s presented his moralistic arguments against some liberal conclusions drawn by the English Committee on Homosexual Offences and Prostitution in their public report. Devlin's arguments were subsequently identified and refuted by Richard Wollheim, H. L. A. Hart and Ronald Dworkin, but in a way that later provoked further argument. In particular the attack against anti‐moralistic (...) principles set forth by Simon Lee owes much to the rather naive liberalism represented by the opponents of Devlin. The battle over liberalism and moralism from the Hart‐Devlin debate to the present day is reviewed. In addition to the discussion of the philosophers mentioned above, a potential flaw in the argumentation of Joel Feinberg is considered. (shrink)

Some legal theorists say that legal entrapment to commit a crime is incoherent. So far, there is no satisfactorily precise statement of this objection in the literature: it is obscure even as to the type of incoherence that is purportedly involved. (Perhaps consequently, substantial assessment of the objection is also absent.) We aim to provide a new statement of the objection that is more precise and more rigorous than its predecessors. We argue that the best form of the objection asserts (...) that, in attempting to entrap, law-enforcement agents lapse into a form of practical incoherence that involves the attempt simultaneously to pursue contrary ends. We then argue that the objection, in this form, encompasses all cases of legal entrapment only if it is supplemented by appeal to the premise that law-enforcement agents have an absolute duty never to create crimes. (shrink)

ExtractPhilosophers write essays. Nowadays most of them are highly technical and argumentative. They have titles like ‘A Rejoinder to So and So’ or ‘A Critique of Such and Such’. This is somewhat understandable. Like others in my field, as a philosopher, my work is predicated on having interlocutors – all of whom, with a few exceptions, I have never met. This is the beauty of the written word combined with public libraries. Because of printing I can engage the ideas of (...) others from a different time or place; because of libraries I am not excluded from the conversation because of social or economic class.Send article to KindleTo send this article to your Kindle, first ensure no-reply@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about sending to your Kindle. Find out more about sending to your Kindle. Note you can select to send to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be sent to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply. Find out more about the Kindle Personal Document Service.DOWNLOAD THIS ESSAY: A DEFENCE OF STEALING EBOOKSVolume 12, Issue 34Andrew T. ForcehimesDOI: https://doi.org/10.1017/S147717561300002XYour Kindle email address Please provide your Kindle email.@free.kindle.com@kindle.com Available formats PDF Please select a format to send. By using this service, you agree that you will only keep articles for personal use, and will not openly distribute them via Dropbox, Google Drive or other file sharing services. Please confirm that you accept the terms of use. Cancel Send ×Send article to Dropbox To send this article to your Dropbox account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about sending content to Dropbox. DOWNLOAD THIS ESSAY: A DEFENCE OF STEALING EBOOKSVolume 12, Issue 34Andrew T. ForcehimesDOI: https://doi.org/10.1017/S147717561300002XAvailable formats PDF Please select a format to send. By using this service, you agree that you will only keep articles for personal use, and will not openly distribute them via Dropbox, Google Drive or other file sharing services. Please confirm that you accept the terms of use. Cancel Send ×Send article to Google Drive To send this article to your Google Drive account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about sending content to Google Drive. DOWNLOAD THIS ESSAY: A DEFENCE OF STEALING EBOOKSVolume 12, Issue 34Andrew T. ForcehimesDOI: https://doi.org/10.1017/S147717561300002XAvailable formats PDF Please select a format to send. By using this service, you agree that you will only keep articles for personal use, and will not openly distribute them via Dropbox, Google Drive or other file sharing services. Please confirm that you accept the terms of use. Cancel Send ×Export citation. (shrink)

Our moral judgments are fallible, and we’re often uncertain what morality requires. I argue that, in the face of these challenges, it’s not only rational to use effective procedures for trying to be moral – we have a moral responsibility to do so, and being reckless when navigating moral uncertainty, is, itself, a form of moral wrongdoing. These strategic requirements present a large class of under-explored norms of morality. I use these norms to address moral and social questions concerning, for (...) example, interpersonal toleration, exceptions to moral rules in high-stakes cases, and principal-agent relationships (such as those between lawyers and clients). -/- (email for full text). (shrink)