Prof. Michael Ambrosio
Orientation Lecture, On the Moral Dimension of the Law and the Lawyer’s Role
Professor Michael Ambrosio,
Presentation on The Moral Dimension of the Law,
Seton Hall Law School, First Year Orientation, August 20, 2012
My theme today is the moral dimension of law and its implications for the study and practice of law. There is a continuing battle for the soul of the legal profession reflected in arguments about the nature and function of law and the relationship between law and morals. It can also be seen in the ambivalence in the legal profession’s ethical standards regarding a lawyer’s obligation to promote truth and justice.
A lawyer’s perception of law and the lawyer’s role will ultimately determine how he or she practices law. Thus, there is an obvious connection between legal philosophy and professional ethics. A lawyer’s philosophy of law will inevitably be reflected in his or her philosophy of lawyering. Narrow conceptions of law and the requirements of the adversary system are invoked to justify the standard conception of the lawyer as a pure legal advocate with the characteristics of partisanship and moral neutrality. The standard conception of the lawyer—as little more than a hired gun—stands in stark contrast to the image of the lawyer as public servant and statesmen conveyed in the legal profession’s rhetoric.
In recent years, however, there has emerged increasing support for an alternative conception of the lawyer as a moral agent responsible for client ends as well as to the means to pursue them. A former Dean of Seton Hall Law School, John Irving, liked to quote from the Preamble of the ABA Code of Professional Responsibility about the importance of lawyers to American society and the connection between law and justice. The Preamble states:
The continued existence of a free and democratic society depends upon the recognition of the concept that justice is based on the rule of law grounded in respect for the dignity of the individual and his capacity through reason for enlightened self government. Law so grounded makes justice possible; for only through such law does the dignity of the individual attain respect and protection.
Lawyers as the guardians of the law, play a vital role in the preservation of society…. A consequent obligation of lawyers is to maintain the highest standards of ethical conduct.
II. The Moral Dimension of Law and Its Implication for the Study of Law
What is law? And whether law has anything to do with morality or justice are questions that have been addressed by legal, moral and political philosophers from at least the time of Plato and Aristotle in the 4th century B.C. Aristotle recognized that man is by nature a free, rational and social being and that what makes human beings different from other sentient beings is the capacity for morals. For Aristotle, the polity or political state is an ethical association where shared ideas of morality form the basis for law. In other words, because we have morality, we need law to give it concrete expression.
Aristotle’s theory, and others like it, are referred to as “natural law” theories. Natural law is a term that has been used as a label for widely disparate ideas. I use the term to refer to universally binding objective principles of morality discoverable through the use of reason reflecting on experience.
In the thirteen century St Thomas Aquinas, who reconciled Aristotelian thought with Christianity and is a dominant figure in the natural law tradition, defined law as
“An ordinance of reason made by him who has care of the community for the common good and promulgated.”
From this definition we can see the natural law perspective that law pertains to reason— and that the purpose of law is to achieve justice and promote the common good.
The common good is not to be confused with the Utilitarian idea of the greatest good for the greatest number. The common good is not simply an abstract concept, but entails what is concretely and specifically necessary for the good of the community as a whole— and the good of individuals who are part of the community. It is the conditions necessary, including law and a legal system, for the full flourishing of all.
The connection between law and morals was accepted as a given until the 19th century and the works of Jeremy Bentham and John Austin, the founders of legal positivism. Legal positivists, reacting to exaggerated claims of proponents of natural law that were invoked to justify unjust laws, insisted on a complete separation of law and morals. They presented a narrow descriptive view of law as nothing more than commands or rules of a political sovereign for the violation of which a sanction or punishment is imposed.
Legal positivists see law as an aggregate of rules that are the product of legislative will and an expression of political power. Positivists were careful to draw the distinction between facts and values and were focused on the validity of laws and not their merit. They sought to avoid confusing the law as it is with notions of what it ought to be. Law, for positivists, is considered an autonomous discipline separate and apart from morality. In contrast to the natural law focus on reason and justice, legal positivism emphasizes the coercive aspect of law. This essentially mundane understanding of law was perhaps a logical extension of the philosophical currents of the 19th century that denied the existence of a transcendent reality and embraced an empiricist epistemology and a faith in science. Interest in moral philosophy markedly declined in American universities as an impoverished view of human nature emerged with evidence that man ascended from the apes..
The seeming dichotomy between natural law and positivism may be more apparent than real. Positivism’s insistence on the separation of law and morality was aimed at reforming the law. It helped to bring clarity to legal analysis and, ultimately, to provide a better basis for the moral critique of law so important to proponents of natural law. Conversely, positivists readily accept that morality can be the source of law and that valid law can be subject to a moral appraisal. Indeed, the leading positivist of the 20th century, HLA Hart, conceded that positivist legal systems have a minimum content of natural law. John Finnis, a prominent contemporary neo-classical natural law philosopher, recognized both the truth of moral positivism as well as its moral incoherence.
Former U.S. Supreme Court Justice and legal philosopher, Oliver Wendell Holmes, claimed by adherents of both natural law and legal positivism as one of their own, is considered the founder of the legal realist tradition in the latter part of the 19th century. Although they accepted the positivists’ view that law and morals are separate and distinct, the realist rejected the narrow descriptive view of law as a model of rules. Holmes defined law as “nothing more than prophesies of what in fact courts will do.” Holmes suggested that law students can best understand the law by looking at it from the point of view of a bad man. In a speech to law students he articulated what has been called his bad man or prediction theory of law.
If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good man, who finds his reasons for conduct, inside the law or outside of it, in the vaguer sanctions of conscience.
Holmes didn’t always have such a narrow view of law. In the Common Law he wrote “the life of the law has not been logic: it has been experience,” and that “the felt necessities of the time, the prevalent moral and political theories, avowed and unconscious,” had a good deal to do with determining “the rules by which men should govern.”
Holmes saw the history of law as a history of the moral development of western civilization. He revealed an affinity for the natural law point of view when referring to the value of legal philosophy or jurisprudence. He wrote:
It is through generalizations that you not only become a master in your calling, but connect your subject with the universe and catch an echo of the infinite, a glimpse of the unfathomable process, a hint of the universal law.
Holmes later described law in positivistic terms as “a ragbag of details to be given order and meaning through the highest generalization, none of which is worth a damn….
To the end of his illustrious career, Holmes remained skeptical and cynical about the meaning of law and life. Immensely gifted intellectually, widely acclaimed, and highly productive, he was reported to have said, “To live is to function. That is all there is to living.”
Another famous legal realist, Karl Llewellyn, in a book written for first year law students, the Bramble Bush, offers the following advice:
The hardest job of the first year is to lop off your common sense, to knock your ethics into temporary amnesia, your view of social policy, your sense of justice—to knock these out of you along with woozy thinking, along with ideas all fuzzed along the edges. You are to acquire the ability to think precisely, to analyze coldly and to work within a body of material that is given.
Perhaps Llewellyn recommends lopping off your common sense because you will read many legal decisions that appear to be and, often are, contrary to a common sense of what is right and just. He wants to knock your sense of justice out of you so that you understand precisely what the law is—and not confuse the law with what you think it ought to be.
John Finnis argues, in his Natural Law and Natural Rights, that the value free analysis of law advocated by Positivists and Realists is simply not possible. Finnis contends a theorist cannot give a theoretical description and analysis of social facts unless he also participates in the work of evaluation: of understanding what is really good for human beings and what is really required by practical reasonableness. Finnis asserts that the actions, habits, dispositions, practices, and human discourse which constitute the subject matter of law can be completely understood only by comprehending their point—that is their value, their objective, and their importance or significance as conceived by those who engaged in them. These conceptions of point, of the meaning of the law, he argues, will inevitably be reflected in the discourse of lawyers and judges.
Finnis’ natural law theory includes an exhaustive theory of the good and a nuanced definition of rationality. He identifies the following seven basic or universal values or goods: life, knowledge, friendship, play, aesthetic experience, religion and practical reason.
These seven basic goods are the basis for natural law principles that give concrete expression to the first principle of natural law that the good is to be done and promoted and its contrary, evil, is to be avoided. The good of practical reason is the means of participating in the other goods. Finnis sets forth nine principles of practical reason that he calls modes of responsibility.
- One must act in accord with a rational life plan—a harmonious set of orientations, commitments and projects
- No arbitrary preference amongst values
- No arbitrary preference amongst persons
- Commitment to avoid apathy
- Detachment to avoid fanaticism
- Limited relevance of consequences—efficiency within reason— cost benefit analysis to avoid waste has limited relevance
- Do nothing to directly attack a basic value
- Foster justice and the common good of communities you are a part of
- Follow your conscience
Following Aristotle’s insight that judgment is an important part of moral deliberation, Finnis’ principles of practical reasonableness provide a framework for moral analysis and judgment.
There has been a bias against the concept of natural law largely because the Catholic Church was, for centuries, its chief proponent. It has been viewed by many as disguised religion. Natural law, however, is a secular doctrine that has its origin in ancient Greece in the thought of the Stoics, Plato and Aristotle. Because there are many different doctrines that go by the name of natural law, the concept of “natural” is somewhat obscured.
But in the end, natural law principles are objective principles of justice that are discoverable through reason. Aristotle distinguished speculative reason from practical reason and held that speculative reason is the means of discovering what he called “necessary truth” while practical reason is for determining “how to act.”
Aquinas held that through the use of reason reflecting on experience we are able to know what is good and also know the means to achieve the good. Although there have been periods when belief in natural law was in decline, in the last half of the 20th century there has been renewed interest in the concept of natural law as a result of the works Lon Fuller, John Rawls, Ronald Dworkin and John Finnis. Anyone interested in natural law theory should become familiar with their ideas.
III. The Moral Dimension of Law Practice
Roscoe Pound defined a profession as “the practice of a learned art in the public interest.” The legal profession’s pervasive impact on the public interest presents moral and legal issues for society, individual lawyers and professional associations. A fundamental question of professional ethics is whether those in professional roles require special norms or principles to guide their conduct. The lawyer’s role in the adversary system makes professional ethics for lawyers difficult and complex. Lawyers have long invoked the requirements of the adversary system to excuse conduct that to the ordinary citizen appears contrary to common morality.
The rules for regulating lawyers, like all rules of law, are unavoidably susceptible to the ambiguities inherent in language. The law for lawyers can no more obviate the uncertainty in the practice of law than the law of contracts can remove the uncertainty in business transactions. Lawyers must inevitably exercise a degree of discretion in the interpretation and application of rules of professional conduct and can only hope that reviewing authorities will agree with their judgments. Within the framework of our common moral tradition, instantiated in the decisions of courts and legislatures, lawyers must determine their professional responsibilities.
The ethical or moral foundations of law are relevant to professional responsibility just as they are to any area of law. The ethos of lawyers (the actual value system that underlies, permeates and actuates their thought and actions), is not necessarily in accord with the professed values of the profession reflected in ethics rules or the legal rules regulating lawyers conduct. Inherent in any assessment of the behavior of lawyers is the degree of autonomy permitted lawyers.
The moral sense of a lawyer may have a greater bearing on his or her behavior than externally imposed rules and standards. The economic realities of law practice and an adversary ethic in which client interests dominate can distract lawyers from considerations of moral as well as legal accountability. Perceptions of the lawyer’s role may have more to do with shaping performance than adherence to ethical rules, which set only minimum standards of conduct.
The sine qua non for professional responsibility is a good moral character. The difficulty of defining a good moral character has led to use of the phrase “fitness to practice law.” A good moral character, or at least the lack of evidence of bad character, is a requirement for admission to the bar, and RPC 8.3 requires a lawyer to report conduct of another lawyer that raises a substantial question of that lawyer’s general fitness to practice law.
The RPCs are minimal standards. They do not obviate the need for lawyers to reconcile personal values with professional values and to maintain a commitment to rationality and a concern for the requirements of justice that begins with a respect for facts.
We need lawyers with inner integrity and outer authenticity: lawyers who are self-constituted, self-possessed and self-realized; lawyers who understand that law has moral value, that the authority of law depends on its ability to secure justice, that individual lawyers and the legal profession bear special responsibility for promoting truth, justice and the common good.
We need lawyers who continually seek new and better ways to resolve conflicts and who measure their success, not by the money they make but by the success of their efforts to bring just outcomes and to improve the lives of flesh and blood individuals and the community as a whole.
To illustrate the ambivalence of the legal profession’s commitment to advancing the values of truth and justice, I need only point to the ABA Model Rule of Professional Conduct 1.6(b) regarding disclosure of client confidential information when necessary to prevent a client’s criminal or fraudulent conduct that threatens loss of life, substantial bodily harm or harm to the financial interests or property of another.
ABA Model Rule 1.6(b) reads as follows:
A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm.
(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services.
This permissive disclosure rule enables the lawyer to exalt client and lawyer interest over the public interest. Note the qualifications on permissive disclosure to prevent fraud—only when the client has used or is using the lawyer’s services. This ABA permissive disclosure rule, followed in most states, is but one of many indications that the standard conception of the lawyer as pure advocate, and adversary ethics with its partisanship and moral neutrality, is alive and well.
The problem of fraud is endemic to our economic system. It is the inevitable consequence of freedom of contract and the right to private property. Although lawyers are strictly prohibited from counseling or assisting a client in criminal or fraudulent conduct, ABA RPC 1.6 permits silence when confronted with client wrongdoing. Lawyers were in the bowels of decision making that ultimately led to many of the scandals in the last three decades that have rocked the country. A judge sentencing a bank CEO for fraudulent conduct in violation of banking law appropriately asked: “Where were the lawyers?” We might ask the same question regarding the most recent fraud cases in the financial and securities industry.
I wonder if things might have been different if the ABA had adopted the mandatory disclosure rules proposed in 1983, as New Jersey and a few other states did. The following is one of five rules in the New Jersey RPCs that require disclosure of client confidential information when necessary to prevent harm to innocent persons. N.J. RPC 1.6(b) corresponds to ABA RPC 1.6(b) above and reads as follows:
A lawyer shall reveal such information (confidential information) to the proper authorities, as soon as, and to the extent the lawyer reasonably believes necessary, to prevent the client or another person:
From committing a criminal, illegal or fraudulent act that the lawyer reasonably believes is likely to result in death or substantial bodily harm or substantial injury to the financial interest or property of another.
Note with particular attention the word “shall.”
Let me conclude with some practical advice on how to approach the study of law. The critical realist philosopher Bernard Lonegan suggests four steps for critical thinking:
- Be attentive—pay attention, get the facts and understand the context in which they appear;
- Be inquisitive—inquire, ask questions, ask the right questions;
- Be reasonable— apply principles and rules to particular facts, assess alternatives, critically evaluate the facts and competing values at stake;
- Be responsible—respond, decide, take action.
Some final thoughts:
Pursue excellence—maintain your dedication to the task at hand and develop your skills of analysis and your capacity for critical and creative thinking. But seek more than knowledge and understanding—seek wisdom.
Don’t be afraid to take risks but let them be prudent risks.
Be persistent and resilient—patiently wait for insights to come, raise the level at which you become frustrated as well as your tolerance for ambiguity.
Prioritize—put first things first—remember your final hour—put everything in perspective.
Manage your time carefully—keep to a regular schedule, time is valuable: don’t waste, spend it.
Strive to be high-minded in all that you do.
Be willing to question your existing view of the world and become conscious of your preconceptions and biases that may prevent you from an objective assessment of new ideas.
Law school will provide you with an opportunity for intellectual, psychological and spiritual growth—it can be, indeed, it should be, a transforming experience.