[9.6.] 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 layers.

 

This is why Milde now considers three views of what law is and what each view implies for legal ethics. The views are:

• natural law theory
• legal positivism
• critical legal studies

 

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.

 

 

[9.6.1.] 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:

·         feminism

·         race theory

·         Marxism

·         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)

 

 

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)

 

[9.6.2.] 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.” (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.[1]

 

Examples:

·         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 that persons found guilty of the possession of one ounce or less of marijuana can 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.[2]

 

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: 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.

 

 

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.” (60-61)

 

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 this… 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.

 

We will look at the third theory, logical positivism, and its implications for legal ethics next time…

 

 

Stopping point for Monday March 30. For next time (Friday April 3—class will not meet on Wednesday because of Honors Day events), begin reading the article by Monroe Freedman, “Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions” (pp.1469-74) [available for download through JSTOR. Use the “Journal Locator” link on the front page of the UWG Library website and search for Michigan Law Review, then follow the links to volume 64, number 8, 1966.]