Legal Ethics and concepts of law PDF

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Legal Ethics and concepts of law Understanding the context of legal ethics

Definition of ethics, in the context of the qualifying law degree : 'The study of the relationship between morality and law, the values underpinning the legal system, and the regulation of the legal services market, including the institutions, professional roles and ethics of the judiciary and legal professions.' The term “legal ethics” has for some time been synonymous with the professional rules of conduct governing members of the legal profession. However a wider definition of legal ethics necessitates an understanding of the institutions of law, its processes and structures, and its philosophical, historical and sociological context. It also involves considerations of the concept of justice, and the relationship between the legal system and justice. An appreciation of ethical standards and professional responsibility therefore involves:        

understanding the institutions of law, its processes and structures understanding the values underlying the legal system understanding the role of the lawyer in that system consideration of the relationship between justice and the legal system understanding broader notions of justice the personal and professional values of individual lawyers the development of moral competence the ability to exercise ethical judgement.

The meaning of ethics Ethics is a branch of philosophy concerned with how people make decisions. Different ethical theories suggest distinct ways of making such decisions. Ethical theories are usually split into three main categories: Consequentialism, Deontology and Virtue Ethics:  

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Consequentialism argues that the morality of an action is contingent on the action's outcome or result. Thus, a morally right action is one that produces a good outcome or consequence. Deontology is an approach to ethics that focuses on the rightness or wrongness of actions themselves, as opposed to the rightness or wrongness of the consequences of those actions. It argues that decisions should be made considering the factors of one's duties and other's rights Ethics of Care was developed mainly by Feminist writers, and calls for a change in how we view morality and the virtues, shifting towards the more marginalized virtues exemplified by women, such as taking care of others, patience, the ability to nurture, selfsacrifice, etc.

The relationship between Law and morality Morality can be described as a set of values common to society, which are normative, specifying the correct course of action in a situation, and the limits of what society considers acceptable. Law can be

seen as the state echoing, and seeking to uphold, these values. Morals can be seen as a set of values which are enforced by law. Morals change over time and define not how one ‘must’ act, but how one ‘ought’ to act. In particular criminal law has moral implications, however many areas of law allude to morality in some form. Contract law – promises should be honoured Human rights – Immorality of torture/right to life Tort - ‘Love thy Neighbour’ (Donoghue and Stevenson (1932)) Equity – The conscience of law Land law – Protection of property Family law – Regulation of divorce

There are many contentious issues with regard to the relationship between law and morality, for example, the dynamic nature of any moral code. It will consistently change with time to reflect a change in societal attitudes. Nietzsche asserted that that morals are little more than contemporary prejudices that suit people’s needs at a given time. Durkheim highlighted the difficulties with law echoing morality when he espoused the problems, in a modern, complex society of finding a moral code which all would agree on. Young argues that attitudes (morals) are value judgements based on what an observer sees as being normal in society, and will not only change over time, but will differ between groups. If the law is to enforce morals, then it is faced with the problem that what one person considers immoral, another might not, so which viewpoint should it sanction?

Case examples

R v R [1991] 3 WLR 767 This case changed the law, so that rape within marriage became a crime. Previously, the law had seen this as impossible, since the wife was legally seen as being almost the property of the husband via the marriage agreement. Morally, this view had long been seen as outdated and wrong, yet the law was slow in adapting.

R. v Human Fertilisation and Embryology Authority Ex p. Blood [1999] Fam. 151 In the area of embryology, scientific advances happened so swiftly that the law has trouble keeping pace with the new moral issues raised by in vitro fertilisation, cloning, stem cell research. The Court of Appeal forced a change in the law, due to circumstances unforeseen at the time the relevant statue was passed.

R v Brown [1992] UKHL 7 The defendants were a group of several sado-masochistic homosexuals who, over ten years, consensually engaged in horrific acts of violence against each other including the torture of

their genitals. They enjoyed the pleasure of giving and receiving pain. When the pain was excessive and unbearable, the men had code words to alert their partners of it. Each group member consented to the acts and the resultant injuries, although the injuries were not permanent. The defendants were tried on charges of assault occasioning actual bodily harm, contrary to s47 of the Offences against the Person Act 1861 (OAPA), and unlawful wounding, contrary to s 20 of that same Act. Both offences carry jail term if convicted. The defendants were found guilty and convicted. Consent to grievous bodily harm was denied on the grounds of public morals (Note the implications to the doctrine of stare decisis)

However, it can be seen that judges contend that legal decisions are based upon legal rather than moral principles: Re A (children) (conjoined twins) [2000] 4 All ER 961 Ward LJ, in his leading judgment stated that 'this court is a court of law, not a court of morals' – Yet the judgements make extensive use of moral concepts and language.

Gillick v West Norfolk and Wisbech Area Health Authority. [1986] 1 AC 112 Mrs Gillick sought a declaration that what she saw as an immoral activity (making contraceptive advice and treatment available to girls under the age of consent) was, by the nature of its immorality, illegal. The question for the law was which moral viewpoint it would support. After a protracted battle, the House of Lords ruled 3-2 against Mrs Gillick, but stated that they acted due to what was legal under the relevant statutes, rather than because of moral arguments.

Theories on the relationship between law and morality

Natural law - St Thomas Aquinas/Fuller. This states that there is a higher law (reflected possibly by a moral code) to which law must conform. One should disregard a law which is at odds with this natural code, unless doing so would lead to social unrest. The problem arises in establishing what this higher code is, although it would seem to be based on human rights. Aquinas saw it as coming from God, whilst Fuller (in The Morality of Law) stated that a legal system would only conform to this higher order if it followed eight principles; Generality Promulgation Non-retroactivity of rules, Clarity of rules, Consistency, Realism, Constancy Congruence.

Utilitarianism – Bentham/ Mill. Utilitarianism, proposed that the moral action was the one that produced good for the many, even if it was at the expense of the one, Mill’s refinement of the idea argues that whilst this

idea is true, the individual should not have to follow society’s morals, and should be free to act as they wish, provided their acts do not harm others. Problems arise, however, in defining who these others are (do they include embryos for example) and what is defined as harm (does it have to be direct interference)? An extension of this idea can be seen in the ‘victimless crimes’ theory debated by Edwin Schur. Schur argued that although certain types of human activity are harmful and are judged so by society as a whole. But it is also true that there are other behaviours recognized by society as “criminal” that do not result in harm to others and are therefore criminalized without sufficient ground, these are the so-called “victimless” crimes. These include drug use, prostitution, abortion. (Schur, Edwin. (1965) Crimes without victims: Deviant behaviour and public policy: Abortion, homosexuality, drug addiction. Englewood Cliffs: Prentice Hall.)

The Hart/Devlin Debate

The debate over the relationship of law and morality was brought to the fore in the well known Hart/Devlin debate, which followed the publication of the Wolfenden report in 1957. Wolfenden proposed that it should not be the function of the law to regulate private behaviour that did not harm anyone else, however distasteful others might find it. Its role was to establish the framework of public order. In practice that meant the decriminalisation of consensual male homosexuality and, by extension, of other forms of activity that could be regarded as essentially private, individual choices. The recommendations were based on two axes: between private and public, and between legal moralism and utilitarianism. The report proposed that the law against street offences should be tightened to eradicate the public nuisance of prostitution. But at the same time it proposed that male homosexuality in private, for consenting adults, should be partially decriminalised, whilst penalties for public offences should be increased. The recommendations on prostitution became the basis of the Street Offences Act of 1959, which sought to eradicate street prostitution and recommendations on male homosexuality were legislated upon in the 1967 Sexual Offences Act for England and Wales (Scotland and Northern Ireland, 1980 and 1982 respectively). The committee behind the report contained Lord Devlin, a prominent judge, and the academic Professor Hart. The report recommended the legalisation of prostitution and homosexuality on the particularly utilitarian basis that the law ‘should not intervene in the private lives of citizens or seek to enforce any particular pattern of behaviour further than necessary’ to protect others. Hart, who was influenced by the theories of Mill, supported the report’s approach, stating that legal enforcement of a moral code was unnecessary), undesirable and in fact morally unacceptable (as it interferes with individual liberty).

Devlin, on the other hand, was strongly opposed to the report, on what might be cited as a natural law approach. He felt that society had a certain moral standard, which the law had a duty to support, as society would disintegrate without a common morality. Devlin felt that this

morality should be based on the views of the ‘right-minded person’, and that the legislature should adhere to three basic principles:  Individuals should be allowed as much freedom and privacy as is possible without compromising this morality.  Parliament and the judiciary should be very cautious about altering laws concerning morality, and that punishment should be used to prevent actions abominable to ‘right-minded people’.  The law should state the minimum of acceptable behaviour. Hart objected to this view, questioning what the ‘right-minded’ view was. He argued that objections to another morality were more often due to prejudice, fear, ignorance, and misunderstanding rather than the rational approach necessary for law. He gave four reasons for not criminalising that which the ‘right-minded person’ objected to.

 Punishment of someone does harm to them, and if their actions have done no harm to anyone else, then this surely cannot be correct.  Free will is very moral, so undue interference with it would be immoral.  Free will can allow learning through experimentation, and fourthly, legislation suppressing an individual’s sexuality will harm them, as it can affect their emotional nature.  Legislation suppressing an individual’s sexuality will harm them.

Case Study The issue of drug use has both a moral and legal dimension. On the one hand, even if drug use is legal, we can ask whether the use of such drugs is immoral. Just because the law permits me to do something doesn’t mean that I should do it—such as smoking or riding a motorcycle without a helmet. On the other hand, even if it is immoral to take drugs, we can still ask whether the use of such drugs should be illegal. The law permits us to do a range of immoral activities, such lying to others or cheating on one’s spouse. While these are things that we shouldn’t do morally speaking, at the same time we don’t want our laws telling us how to conduct our private lives. The Conservative Position The conservative position on recreational drugs is that their use is both immoral and should remain illegal. The chief arguments for the conservative position are a follows:  Harm to society. There are serious harms to society from drug use including increases in murder, theft and prostitution. It is, in fact, one of the leading sources of crime in society. A criticism of this argument is that much of the harm associated with recreational drug use is the result of it being illegal to begin with. If drugs were made legal, the illegal drug trade and the evils associated with them would disappear, as happened with organized crime in the U.S. when alcohol prohibition was repealed in 1933. While some of the harder drugs would have other harms associated with them, social harm from softer drugs would likely be very minimal.  Harm to user’s health. Drugs adversely affect the user’s health, and we have an obligation to avoid unnecessary harm to our bodies, such as that which is caused by regular drug use. A criticism of this argument is that harm to oneself is often a by product of exercising one’s freedom, such as with playing dangerous sports or simply driving in a car. While it’s good to reduce harms to oneself when we can, eliminating all such harms would seriously curtail our freedom to act as we like.

The Liberal Position The liberal position on recreational drugs is that the less harmful and addictive ones are morally permissible and should be legalized.

 Autonomy: drug use should be a matter for individuals to decide for themselves, so long as their use of drugs does not negatively impact others. In a free society, the presumption is that individuals should be at liberty to make their own choices, even when their decisions are not always the smartest or safest ones for themselves. The only restriction should be whether the individual’s actions cause significant harm to others. The use of recreational drugs is a case in point. A criticism of this argument is that most recreational drug use does have a serious negative impact on society. Marijuana and perhaps a few others might be exceptions, but the most addictive ones result in great harms. Further, addiction to drugs compromises a person ability to make free choices, and thus undermines autonomy.  Pleasure: recreational drugs provide a great source of pleasure to people, and this counterbalances the harm to themselves. Many of the decisions that we make in life involve balancing pleasures with potential pains. If the pleasure is great enough, we will accept the risk. So too with recreational drugs: while users might be at risk of some harm, they may accept this in exchange for the pleasure benefits. A criticism of this argument is that few peoples’ lives are completely isolated, and there are almost always family members who are secondary victims to the harm that drug users bring on themselves. Children are particularly vulnerable to this. Because of drug use, parents might have less money for their children’s needs and be less motivated to focus on their children’s wellbeing than their own happiness.

A brief history of drug control legislation Introducing legal controls 1868 – Pharmacy Act. First regulation of poisons and dangerous substances, limiting sales to chemists. 1908 – Poisons and Pharmacy Act. Specifically included coca in regulations on sale and labelling. Creating a national system 1916 – Defence of the Realm Act, 1914 (Regulation 40B). Restricted sales and possession of cocaine to ‘authorised persons’. 1920 – Dangerous Drugs Act. Limited production, import, export, possession, sale or distribution of opium, cocaine, morphine or heroin to licensed persons. 1925 – Dangerous Drugs Act. Introduced control of the importation of coca leaf and cannabis. 1928 – Amendment to Dangerous Drugs Act to criminalise possession of cannabis (but doctors able to prescribe any drugs as treatments for general medicine or for addictions). Increasing control 1964 – Dangerous Drugs Act. Ratified UN 1961 Single Convention and criminalised cultivation of cannabis. Drugs (Prevention of Misuse Act) criminalised the possession of amphetamines. 1967 – Dangerous Drugs Act. Required doctors to notify Home Office of addicted patients. Prescription of heroin and cocaine for treatment of addictions restricted. 1971 – Misuse of Drugs Act. Set up the system classifying drugs according to their perceived harmfulness. Created offence of ‘intent to supply’ and set harsher penalties for trafficking and supply. Established The Advisory Council on the Misuse of Drugs (ACMD). 1985 – Controlled Drugs (Penalties) Act. Increased maximum penalty for trafficking Class A drugs from 14 years to life imprisonment. 1986 – Drug Trafficking Offences Act. Created an offence of making suspects aware of an investigation. Empowered police to compel breaches of confidentiality and to search and seize material and assets. Integrating criminal justice and health 1991 – Criminal Justice Act. Schedule 1A6 allowed for the condition of attending drug treatment to be attached to a probation order. 1998 – Crime and Disorder Act. Created the Drug Treatment and Testing Order (DTTO). 2000 – Criminal Justice and Court Services Act. Enabled police to drug test people charged with ‘trigger’ offences. Created the Drug Abstinence Order, the Drug Abstinence Requirement and testing for supervised, released prisoners. 2003 – Criminal Justice Act. Enabled restrictions on bail for some arrestees (‘trigger offences’) who test positive for Class A drug use. Created the generic Community Order, replacing the DTTO with the Drug Rehabilitation Requirement. Anti-Social Behaviour Act. Powers to close premises used for Class A drugs supply. 2005 – Drugs Act. Introduced drug testing on arrest. Criminalised possession and sale of unprocessed psilocybin mushrooms. Made it illegal to refuse a required treatment assessment. Increased penalties for dealing near schools. 2006 – Police and Justice Act. Extends the conditional cautioning scheme to provide for punitive conditions to be attached.

Recent developments in the USA have sown that some states ie Colarado have legalized the use of Marijuana to some extent....