[2.4.] Legal Ethics and Consequentialism.
[2.4.1.] A Hybrid of Deontology and Consequentialism.
Milde has concluded that deontology is incomplete as an approach to legal ethics. He now examines the possibility of supplementing deontology with consequentialism (and remember, by “consequentialism” he means utilitarianism.)
In particular, he considers the possibility of using consequentialist ideas to resolve the conflict cases that are inevitable under a wholly deontological approach. The idea is that you begin with a deontological list of rules and principles that are usually to be followed regardless of the consequences. But then, if conflicts arise, you decide which duty is more important based on consequentialist reasoning. For example:
· When faced with a conflict between the duty not to lie and the duty to prevent harm (or to preserve life), we should choose the course of action that will result in the greater increase in utility (understood as happiness, well-being, or preference satisfaction).
· The lawyers in the Lake Pleasant Bodies Case should have decided which duty to uphold—the duty to maintain attorney-client confidentiality or the duty to reveal relevant physical evidence to the court—by considering which course of action would raise overall utility more.
An advantage of the hybrid approach: It “is supported by our ordinary expectation that all moral agents (including lawyers) will (and should) take the consequences of their actions into consideration when deciding how they should act.” (52) In other words, it’s what we expect people to do, anyway, as well as what we already think they should do.
An objection to the hybrid approach:
Once one allows that consequences matter, and that they have the last word in adjudicating conflicts, there is simply no reason not to go directly to a calculation of relative consequences. Duties, on this view, turn out to be defeasible suggestions about how best to maximize positive outcomes: the real evaluative work is done by the consequences. (52)
In other words, once we introduce concern for consequences, we practically abandoned deontology and the Kantian emphasis on absolute moral rules. The “absolute duties” of Kant become mere defeasible suggestions for how we should behave. [“defeasible” means capable of being made void or of being annulled]
[2.4.2.] Act vs. Rule Utilitarianism.
At this point Milde brings up a widely discussed and debated distinction between two different forms of utilitarianism:
act utilitarianism (df.): the morality of an individual action depends on whether that specific action increases or decreases utility. If the action increases utility, it is moral; if it decreases utility, it is immoral.
rule utilitarianism (df.): the morality of an individual action depends on what rule the action follows. If in general, following the rule increases utility, an individual action that follows the rule is moral. If in general following the rule decreases utility, an individual action that follows the rule is immoral
Act utilitarianism is the form of utilitarianism we have been considering so far in this course (although I haven’t called it that). In our thinking about utilitarianism, we have evaluated each individual action based on its own consequences. If the action itself has good consequences (and here “good” is understood in terms of maximized utility), then it is morally good. If it has bad consequences, then it is immoral.
Instead of asking the question, “What individual action will promote overall well-being?” a rule utilitarian will ask: “What general patterns of behavior can I engage in to promote overall well-being?” In other words, the emphasis will be on identifying those rules which, if followed by people in general, would result in maximized utility.
So an act utilitarian will approve of a specific action (call it “A”) if A itself increases utility.
But a rule utilitarian could disapprove of A even if doing A will increase utility, if in general (on average, on the whole) doing A would decrease utility.
A well-known illustration of the difference between act and rule utilitarianism: suppose that a Utilitarian is visiting a small town in the Midwest where there is a great deal of prejudice against a local population of Muslims who have immigrated from the Middle East. A young woman in the town is raped, and most of the townspeople jump to the conclusion that a Muslim immigrant did it. Violent riots begin, as the non-Muslim citizens begin demanding that the rapist be caught and punished. Many people, both Muslim and non-Muslim, are injured in the riots; some are killed. You can put an end to this violence and prevent further bloodshed if you lie and say you saw the rape happen and know who did it. Your perjured testimony will put an innocent man in jail and thus end the riots, saving lives.
Act utilitarians and rule utilitarians will respond to the case very differently:
· An act utilitarian will have to approve of giving false testimony against an innocent person in this case, since it will have the best overall consequences.
· But a rule utilitarian can say that it is wrong to give perjured testimony against the innocent, even though it would result in good consequences in this one case. It would be wrong because, in general, giving perjured testimony against innocent people has bad consequences.
Milde will argue that “rule utilitarianism is a better fit [for legal ethics] than act utilitarianism” (52), although even this form of rule utilitarianism has significant problems.
[2.4.3.] Act Utilitarianism and Legal Ethics.
Milde argues that act utilitarianism is an inadequate approach to legal ethics.
He offers two different arguments in support of this conclusion:
Argument #1: Act utilitarianism “allow[s] too much latitude for unconstrained, subjective decision making by individual lawyers” (52):
A conception of legal ethics that gives lawyers carte blanche [i.e., “blank check,” unrestricted power] to determine what they consider conducive to the maximization of positive outcomes would, on many accounts, fail to constitute any kind of ethical direction whatsoever. (53)
Imagine a criminal defense attorney who believes that it would be in the best interest of society if her client were to go to jail, perhaps because the client is a violent career criminal. So she decides that the right thing to do is to build a very weak defense for her client, thus helping to ensure that he goes to jail.
Even if the lawyer is right that overall utility would be increased by her client going to prison, it still seems wrong for her to aim at getting him sent there:
The chief concern here need not be that the lawyer in question has made a faulty calculation of the relative utilities. It is rather the sense that the lawyer should not be involved in this kind of calculation at all because it leads to a pernicious confusion of roles. In effect, even if the lawyer has correctly calculated the relative outcomes of various courses of action, he/she will have illegitimately usurped the roles of prosecutor, judge, and jury. The lawyer needs to recognize that he/she is part of a system, and by short-circuiting its procedures, the lawyer undermines the value of the system as a whole. This insight gives rise to those wholesome and familiar homilies to the effect that even vicious psychopaths deserve the benefit of effective, committed legal representation. (53, emphases added)
Argument #2: In deciding how to act on a given occasion, an attorney must keep in mind that her actions on that occasion “have implications beyond ... her own situation and affect the legal profession and the legal system more generally.” (53)
· An attorney has general obligations to uphold principles of due process, fairness, and justice, and her failure to live up to those obligations on a given occasion can help to undermine the legal system itself.
· Act utilitarianism “augments the temptation to treat the situation [at hand] as an exception, a singular confluence of circumstances that is unlikely to be repeated, and so is unlikely to have any effects beyond its immediate parameters.” (53) It can tempt an attorney into thinking that, just this one time, in these special circumstances (with this particular client, who is alleged to have committed this particular crime), it would be morally good to elevate considerations of utility over considerations of justice.
[2.4.4.] Rule Utilitarianism and Legal Ethics.
Milde now considers legal ethics as rule utilitarianism.
On this view, the ethical guidelines within which lawyers are expected to operate (e.g., the ABA’s Model Rules of Professional Conduct) are not absolute deontological duties which hold apart from considerations of consequences. Rather, they are “rules that have been shown (or are generally expected) to maximize positive outcomes overall (in the long run, all things considered, etc.)”(53)
There is an advantage to taking rule utilitarianism as our account of legal ethics, viz. it “combine[s] two generally appealing commitments: first, a concern with adherence to duty, and second, a concern with the consequences of one’s actions.” (54)
Nonetheless, rule utilitarianism has distinct disadvantages, which Milde conveys by returning to the Lake Pleasant Bodies Case. Consider once again the Model Rules which came into conflict in that case:
Rule 1.6: Confidentiality of Information: ... A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent ...
Rule 8.4: Misconduct: It is professional misconduct for a lawyer to: ... commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects; ... engage in conduct involving dishonesty, fraud, deceit or misrepresentation; [or] engage in conduct that is prejudicial to the administration of justice; ...
Rule 3.4: Fairness to Opposing Party and Counsel: A lawyer shall not: ... unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value.
With regard to codes of ethics like the Model Rules and to the laws themselves, there is an “underlying assumption that it is adherence to the entire system of rules of conduct that generates maximally positive outcomes. And, in some cases, at least [such as the Lake Pleasant case] the rules conflict.” (54) So rule utilitarianism runs into conflict cases, just like the deontological approach.
Deontology does not have the resources to resolve these conflict cases. Does rule utilitarianism?
Milde describes two options, but argues that neither is satisfactory:
1. Appeal to some other, higher-level rule—a rule about rules and how to decide among them—in order to choose which rule to follow and which to break. Such a higher-level rule would tell you how to rank or prioritize the more specific rules. But this approach is problematic. The higher-level rule “would ... have to be justified on the basis that it actually maximizes overall utility. Clearly this is a very difficult claim to make out. On what basis could such a determination be made?” (54)
· Milde’s point seems to be an epistemic one (“epistemic” means having to do with knowledge or evidence). In actual practice it would be extraordinarily difficult for a lawyer to know which kind of ranking or prioritization would result in maximized utility.
2. Revert to act utilitarianism: prioritize the rule the following of which would increase utility in the specific case at hand. But, says Milde, this takes us right back to the problems with act utilitarianism we’ve already considered, including that it increases the risk that lawyers will respond arbitrarily to difficult cases.
Milde concludes this section of the article as follows:
Given these kinds of considerations, it is not surprising that the empirical and anecdotal evidence suggests lawyers look to peers and colleagues for moral advice. Individual judgment seems to provide a precarious foundation for the kind of moral investigations and determinations lawyers have to make in hard cases. One person’s ability to work through all the possible implications and consequences of a course of action is bound to be limited. So a broader perspective, with more input, seems like a prudent way of proceeding. (54)
Mile will now argue that virtue ethics is the form of normative ethics that makes that provides that broader perspective.
Stopping point for Friday August 20. For next time, continue reading the article by Milde (“Legal Ethics: Why Aristotle Might be Helpful,” pp.55-60).
 Adapted from H. J. McCloskey, “A Non-Utilitarian Approach to Punishment,” Inquiry 8 (1965), 239-55. McCloskey’s example is discussed by James Rachels, Elements of Moral Philosophy, 5th ed. by Stuart Rachels, McGraw-Hill, 2007, pp.103-104.
 Milde says that psychopaths “deserve” effective legal representation, but this claim is too strong. Moral desert—what someone deserves—is based on what he or she has done in the past; prima facie, if you have behaved well in the past, then you deserve good treatment now, and if you behaved poorly in the past, then you deserve bad treatment now. But this sort of assessment works only with regard to beings who are rational to some minimum degree, and that is not frequently the case with genuine psychopaths. It would be better to say that psychopaths should be given effective legal representation, whether or not they deserve it.
 Milde mentions another advantage of rule utilitarianism: it “holds out the hope that cases in which rules or directives give conflicting guidance can be adjudicated by calculating the actual (or probable) consequences of the various proposed courses of action.” (54)
This page last updated 8/20/2010.
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