[2.6.] Three Theories of Law.
In his account of Aristotelian virtue ethics as legal ethics, Milde maintained that in order to understand what it is to be a (morally) good lawyer, we first need to know the function of a lawyer. But before we can know what, we have to understand the function of the law itself. This will tell us what it is to be a good lawyer and thus show us how we might morally evaluate lawyers.
This is why Milde now considers three views of what law is and what each view implies for legal ethics. The views are:
He writes towards the end of the article that “[t]he Aristotelian framework, with its emphasis on virtues, moral education, emulation of role models, and the like, is compatible with any one of the theoretical views presented here, but its form and content will be profoundly affected by the perspective that one espouses.” (63)
Milde will not come out in favor of any one of the three theories over the others. He means only to consider what each might have to imply about the function of law and about the content of legal ethics itself.
[2.6.1.] Critical Legal Studies.
“Critical Legal Studies” (CLS) refers not to a single account of what law is, but to a collection of disparate views, including:
· race theory
· radical skepticism
Milde states the thread running through these theories (and that justifies placing them all within one category) as follows:
[T]he law is a thoroughly political entity, one that reflects, and typically reinforces, the existing structures of power within a given society. ... [T]he law, despite its aspiration to adhere to independent legal principles and forms of reasoning, is in fact dominated by the interests of the socially dominant classes and paradigms (moral, political, economic, social, metaphysical, and epistemological). (62, emphasis added)
[126.96.36.199.] The Function of Law and Implications for Legal Ethics.
If the CLS view of law is correct, says Milde, then the function of law is “the preservation of the status quo” (62), i.e., to maintain society in its current form, especially as regards the current distribution and exercise of power.
And it follows from this that legal ethics is “one more way of maintaining political control over the institution of law by enforcing political discipline on administrators and practitioners of the profession.” (62)
CLS would acknowledge all of the descriptive points Milde has made about legal education, training, and emulating mentors. But they would maintain that the purpose of these “institutional supports” is morally suspect: they function only to maintain the current, morally questionable status quo, in which specific classes of people retain power over others.
On the CLS approach, “the entire edifice of [descriptive] legal ethics, including education and role models” (63), needs to be rethought. The whole institution of law is morally corrupt, or at best morally problematic, and needs to be rebuilt from the bottom up. (The specifics of exactly how this should happen will vary from version to version of CLS.)
[2.6.2.] Natural Law Theory.
Milde defines Natural Law Theory as the view that “law, in order to count as law and command legitimate authority and obedience, must have a minimum moral content. This view reaches its apotheosis [(df.): 1. elevation to godhood; 2. perfect example] in Augustine’s assertion that an unjust law is not law at all, but rather a form of violence perpetrated by the rulers against the ruled.” (60)
The following is a more detailed definition:
(NL1) The Morality Thesis: The human activity of lawmaking must meet certain moral standards in order for it to have law as its outcome. It is not enough simply for a law-making entity (e.g., a legislature) to decide that a principle is law. There is a moral standard independent of the law-making activity of man that a principle must meet in order to be a genuine law.
(NL2) The Inseparability Thesis: The question whether a principle is a law cannot be separated from the question of that principle’s morality.
· Georgia code 19-3-3.1 reads in part: “It is declared to be the public policy of this state to recognize the union only of man and woman. Marriages between persons of the same sex are prohibited in this state.”
· Georgia code 16-13-2 allows for persons found guilty of the possession of one ounce or less of marijuana to be sentenced to prison for up to one year; and Georgia code 16-13-31 requires that persons found guilty of possession of between more than 10 lbs. and less than 2000 lbs. of marijuana be sentenced to at least five years in prison and fined $100,000.
The natural law theorist will say: in order for these codes actually to be laws, they must live up to some moral standard that is independent of the law itself. And if such a code fails to live up to that moral standard, then they are not really laws, even if they have been enacted by a legitimate law-making body, and even if they are treated as laws by nearly everyone in the state of Georgia.
A hugely important question for NLTists is this: what standard of morality do principles have to meet in order to be laws?
· St. Thomas Aquinas (1225-1274) answered: the “natural law” created by God that man can discover through reason. According to Aquinas, the natural, divinely ordained function of marriage is procreation, and so a principle that prohibits marriage for couples who cannot procreate passes the moral test and can be a genuine law.
· But one need not base morality on religious beliefs in order to embrace NLT. Lon Fuller is an example of a recent NLTist whose moral system did not rely on beliefs about God. His development of NLT included a list of procedural norms that a system of rules must meet in order to count as a genuine legal system.
[188.8.131.52.] The Function of Law and Implications for Legal Ethics.
According to Milde, NLT implies that the function of law is “to regulate social interactions so that they conform to moral standards” (61); it is “the implementation of universal moral principles and commitments” (62). In other words, the function of law is to make people behave morally.
And this implies something about the moral responsibilities of lawyers:
... lawyers, as administrators of the law, must abide by the dictates of the moral order. There is ... really no need for a separate and distinct concept of ‘legal ethics,’ since there is only one moral standard that informs both legal and nonlegal conduct. (61, emphasis added)
If we adopt NLT, there is no serious distinction we can make between acting as a lawyer and acting as an ordinary moral agent. To figure out what a good lawyer would do in a given situation, we need only think about what a good person would do in that situation.
Milde does not extend this conclusion to the Lake Pleasant Bodies Case, but the lesson for that case seems to be as follows. To figure out what one’s responsibility as a lawyer is, one must figure out what one’s responsibility is as a person. In general, is it morally better to violate the trust that you’ve established with your client, or is it morally better to hinder an ongoing criminal investigation and to keep from the families of the victims the locations of their loved ones’ bodies? A good lawyer is obligated to answer this question in the same way as a good person, i.e., as a good moral agent.
DISCUSS: What would a good person (qua person, not qua lawyer) do in that case?
Milde defines legal positivism as the view that “the legitimacy of law does not depend on a moral warrant, but rather on its derivation from a recognized, authoritative process or procedure.” (61) What follows is a more detailed definition; notice that each of these two claims denies one of the claims of NLT:
Given that Georgia codes about same-sex marriage and marijuana were enacted by a legitimate law-making entity, according to LP, they are the law... even if they are deeply unjust.
Despite the Separability Thesis, LP does not institute an unbridgeable gap between morality and law. It maintains that that the concepts of law and morality are different, but this does not mean that we have to think about them separately.
In fact, one of the motivations for adopting LP is to secure the possibility of morally evaluating laws...
· According to NLT, any law has already met some moral standard, so there is no such thing as an immoral law, including an unjust law. Thus, it makes no sense to ask of any specific principle, “This principle is a law, but is it moral?”
· LP, on the other hand, allows us to ask whether a given law is moral, since according to it, law and morality are not the same thing, and thus it is possible for there to be a principle that really is a law even though it is a morally bad principle.
In this way, LP is supposed to safeguard the very possibility of assessing laws as being morally good or morally bad.
[184.108.40.206.] The Function of Law and Implications for Legal Ethics.
Because of this, LP presents the possibility of a divergence of legal ethics and ordinary ethics that is not allowed by NLT:
So long as the social function of law is understood to be something other than the implementation of universal moral principles and commitments, then it is at least possible that the content of legal ethics will diverge from “ordinary ethics.” ... legal positivism is compatible with a distinction between professional, legal ethics and ... “ordinary morality.” (62)
For this reason, legal positivism implies that there may be conflicts between the moral responsibilities that a lawyer faces as a lawyer and the moral responsibilities that she faces as a human being.
The lesson for the Lake Pleasant Bodies Case seems to be this… To figure out what one’s responsibility as a lawyer is, one must disregard what one’s responsibility is as a person. Or, at the very least, one must allow for the possibility that what morality requires of a lawyer is different than what it requires from a non-lawyer.
· You still must answer the question: is it morally better to violate the trust that you have established with your client, or is it morally better to hinder an ongoing criminal investigation and to keep from the families of the victims the locations of their loved ones’ bodies?
· But the good lawyer will not necessarily answer it in the same way as a good person, i.e., as a good moral agent. For example, while it might be the moral duty of a non-lawyer to reveal the location of the bodies, a lawyer might be morally obligated to keep that information secret.
Discussion: what is the moral thing to do in the Lake Pleasant Bodies Case, not qua human being, but qua lawyer?
[2.6.4.] Virtue Ethics and Controversy about the Nature of Law.
The fact that there is an ongoing debate about the nature of law itself helps to explain the “conflicted nature of legal ethics”:
[T]he Aristotelian model goes some distance toward explaining the conflicted nature of legal ethics that gives rise to cynicism about the morality of lawyers. If it is true that the nature of legal ethics is grounded in the social function of law, then the complex content of legal ethics will be, at least in part, the result of unresolved disputes about the nature of law, and about the appropriate social function of law. This observation is certainly not meant to absolve lawyers from taking responsibility for their moral decision making; rather, it is intended to make the point that the search for an adequate legal ethics will need to be a broad-based undertaking, addressing philosophical and political, as well as legal, issues. (64)
In other words:
· There is an ongoing dispute about the nature of law itself (among natural law theory, legal positivism, and critical legal studies).
· The content of legal ethics—what lawyers should be doing—depends on the nature of law, i.e., depends on which of these three theories gives an accurate account of the relationship between law and morality.
· So it stands to reason that there would be important conflicts within legal ethics itself.
The final point Milde makes in favor of virtue ethics is that it is the normative approach that best handles these conflicts:
· It provides “a credibly nonarbitrary way to overcome the indeterminacies encountered in hard cases”;
· it “offers a principled, transparent, and public way of handling situations by relying on the actions and decisions of institutionally identifiable exemplars”; and
· it “matches the existing educational and practical structures of the legal profession while supplying the conceptual resources for refining and revising them in light of various background moral, social, or political considerations.” (63-64)
Stopping point for Wednesday August 25. For next time, begin reading Richard Wasserstrom, “Lawyers as Professionals,” on electronic reserve at the Ingram Library website. Read pp.1-15.
 For more on natural law theories see John Finnis, “Natural Law Theories,” The Stanford Encyclopedia of Philosophy (Fall 2008 Edition), Edward N. Zalta (ed.), URL = <http://plato.stanford.edu/archives/fall2008/entries/natural-law-theories/>. Philosophers who have defended versions of NLT include Saint Augustine (354-430 CE; see Michael Mendelson, “Saint Augustine,” The Stanford Encyclopedia of Philosophy (Fall 2009 Edition), Edward N. Zalta (ed.), URL = <http://plato.stanford.edu/archives/fall2009/entries/augustine/>.); Saint Thomas Aquinas (1225-1274; see Ralph McInerny and John O’Callaghan, “Saint Thomas Aquinas,” The Stanford Encyclopedia of Philosophy (Winter 2009 Edition), Edward N. Zalta (ed.), URL = <http://plato.stanford.edu/archives/win2009/entries/aquinas/>); and 20th century American philosopher Lon Fuller. Aquinas, citing Augustine, expressed the view as follows: “As Augustine says, that which is not just seems to be no law at all. Hence the force of a law depends on the extent of its justice. ... Every human law has just so much of the nature of law as it is derived from the law of nature. But if in any point it departs from that law of nature, it is no longer a law but a perversion of law.” (Summa Theologica, I-II, q.95 a.2. http://www.op.org/summa/letter/summa-I-IIq95.pdf .)
 The same code requires a minimum sentence of seven years and a fine of $250,000 for possession of between 2,000 and 10,000 lbs., and a minimum sentence of 15 years and a fine of $1 million for possession of 10,000 lbs. or more.
 Fuller’s “universal procedural norms” are eight “principles of legality” – the degree to which a system meets these requirements is the degree to which it counts as a system of law. He describes these principles at pp.65-66 of your textbook. They are summarized in the following list:
1. laws should be general [i.e., such as to apply to many individual cases; cases cannot be decided ad hoc, one by one];
2. they should be promulgated, that citizens might know the standards to which they are being held;
3. retroactive rule-making and application should be minimized;
4. laws should be understandable;
5. they should not be contradictory;
6. laws should not require conduct beyond the abilities of those affected;
7. they should remain relatively constant through time; and
8. there should be a congruence between the laws as announced and their actual administration. (Brian Bix, “Natural Law Theory,” in A Companion to Philosophy of Law and Legal Theory, ed. Dennis Patterson, Blackwell, Malden, MA, 1996, 223-240, p.232)
The debate between contemporary NLT and contemporary legal positivism began in the so-called Hart-Fuller debate, an exchange between Fuller and H. L. A. Hart, in the following publications: H. L. A. Hart, "Positivism and the Separation of Law and Morals," (1958) 71 Harvard Law Review 593; Hart, The Concept of Law (1961); Lon L. Fuller, “Positivism and Fidelity to Law - A Reply to Professor Hart,” (1958) 71 Harv. L. Rev. 630; Fuller, The Morality of Law (1964).
 For more on legal positivism, see Leslie Green, “Legal Positivism,” The Stanford Encyclopedia of Philosophy (Fall 2009 Edition), Edward N. Zalta (ed.), URL = <http://plato.stanford.edu/archives/fall2009/entries/legal-positivism/>. Philosophers who have defended versions of legal positivism include Jeremy Bentham (1748-1832), John Austin (1790-1859; see Brian Bix, “John Austin,” The Stanford Encyclopedia of Philosophy (Spring 2010 Edition), Edward N. Zalta (ed.), URL = <http://plato.stanford.edu/archives/spr2010/entries/austin-john/>), and H.L.A. Hart (1907-1992).
This page last updated 8/25/2010.
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