Professional Ethics CONTENTS PAGES CHAPTER 1 OUTCOMES 2 INTRO TO LAW AND MORALITY 3-12 RIGHTS FREEDOMS AND EQUALITY 13-24 ACCEPTANCE AND INTENTION TO CREATE LEGAL RELATIONS 25-33 CHAPTER 2 OUTCOMES 34 PROFESSIONALISM 35-38 REGULATION 39-46 LEGAL ENTITIES AND THE ABS 47-54 COMPLIANCE OFFICERS 45-58 CHAPTER 3 OUTCOMES 59 COSTS LAWYERS 60-66 AUTHORISED RIGHTS 67-69 UNDERTAKING RESERVED LEGAL ACTIVITIES 70-81 CHAPTER 4 OUTCOMES 82 COMPLAINTS 83-90 THE POTENTIAL LIABILITY OF A COSTS LAWYER 91-100 2 Chapter 1 Learning outcomes After studying this chapter you should understand the following main points: þ distinguish between legal positivism and natural law; þ the relationship between law and morality; þ the origins of rights and freedoms; þ how rights may be enforced; þ equality and diversity; and þ justice and English Law. 1.1 An Introduction to Law and Morality 1. Introduction Both law and morals are described as being normative. This means that they specify what ought to be done; marking the boundaries between acceptable and unacceptable conduct. Moral rules tend not to be backed by sanctions whereas most legal rules do. Pressures, such as the disapproval of family or friends, often reinforce moral rules. As society changes over time, so do moral values; the same applies to its laws. In English law, legal changes have tended to follow moral ones. The changes have tended to come only when the process of moral acceptance is well advanced. In the reverse, law can sometimes bring about changes in social morality. 2. The definition of law Law is not a term that lends itself to easy definition. Many academics, philosophers and lawyers have attempted to define the term. There are two distinct theories that may help to define it. These are legal positivism and natural law. 2.1 Legal positivism Positivists believe that a law is a legal rule and if that rule has been made in the manner recognised by the legislative power in the state it is valid irrespective of its content. In other words, as long as an elected parliament debates and makes the law everyone must abide by it. John Austin (1790 -1859) was a noted British jurist and published extensively concerning the philosophy of law and jurisprudence. Austin is best known for developing the command theory of law. Austin argued that a law is a command from a sovereign whom the population at large is in the habit of obeying and it is reinforced by a sanction. Put simply, laws are orders backed by threats. A law may therefore be described as the express wish of the sovereign and is distinguishable from other commands such as those from God or from an employer. Austin has been criticised for this rather simplistic view of law because it is difficult to identify a sovereign in many states but also because many areas of law such as contract, which grant powers to people, do not fit neatly into such a definition. Herbert Lionel Adolphus Hart (1907–1992), a British legal philosopher and a major figure in moral and political philosophy, was one of Austin’s biggest critics. As a legal positivist, Hart insisted on the separation of law and morality. However, he developed a much more sophisticated model than Austin’s to explain the nature of law. He argued that there is a distinction between two categories of rules, called primary and secondary rules. These rules, in combination, form the basis of a functioning legal system. Primary rules either impose legal obligations, as in criminal law, or they grant powers, as in the power to enter into a contract. © Association of Costs Lawyers Training 2020 3 Secondary rules are concerned with the operation of primary legal rules. Hart identified three specific secondary rules: The rule of recognition which sets criteria for identifying primary legal 1 rules. These criteria would include reference, for example, to Acts of Parliament and judicial decisions. Rules of change identify how legal rules can be formed, amended or repealed. For example, in the case of an Act of Parliament, reference 2 would be made to the various readings in the House of Commons and the House of Lords, and to the need for royal assent. Rules of adjudication enable the courts not only to settle disputes, but 3 also to interpret the law. Hart argued that the union of these two sets of rules establishes a legal system. However, there are two further conditions required for this system to function: 1 People in general must be in the habit of obeying the primary rules. Public officials must accept the rules of recognition, change and 2 adjudication. As a legal positivist even a morally repugnant law may be legally valid. However, that does not mean we must obey laws that are morally repugnant. Obedience remains a matter of personal decision or conscience. 2.2 Natural law Natural lawyers believe that the validity of man-made laws is dependent upon their compatibility with a higher moral authority. Laws lack validity where they do not satisfy the requirements of this higher moral authority. There are two main types of natural lawyers: þ those that believe in laws from a god; and þ those that do not believe in god but that society has an unwritten moral code that laws should follow. Thomas Aquinas (1225-1274) was a Catholic philosopher and theologian, who devoted his life to scholarship and in particular to the study of Aristotle. His major work, the Summa Theologica, contains his explanation of four different types of law. 1 Eternal Law 2 Natural Law 3 Divine Law 4 Human Law One of them, Divine law is concerned with the standards man must conform to in order to attain salvation. Divine law is revealed to mankind by inspiration or revelation, as for example the Ten Commandments contained within the Bible. This type of law removes the need for mankind to be in any doubt about the moral rules he should be following for his own good. Natural law was derived from eternal law (in God) and deals with general rules of conduct that govern the behaviour of all of us possessing reason and free will. This theory prescribes © Association of Costs Lawyers Training 2020 4 that God, as part of our nature, implants it in us and so we have a natural inclination to behave in a way that fulfils our purpose in life. These inclinations include the preservation of life, to procreate, and to live within society. By reasoning upon natural law, certain general rules of conduct can be developed: 1 To do good and avoid evil. 2 Not to commit suicide, reflecting the inclination to preserve life. 3 To rear and care for offspring, reflecting the inclination to procreate. 4 To develop our rational and moral capacities. Lon Fuller (1902–1978) was professor of jurisprudence at Harvard Law School. He was a natural lawyer in that he rejected legal positivism; he refused to accept the belief that law has no higher authority than that of a sovereign authority. Fuller viewed law as serving a purpose. That purpose was to ‘achieve social order through subjecting people’s conduct to the guidance of general rules by which they may themselves orient their behaviour’. For laws to be able to achieve this purpose, they must satisfy eight particular principles. These principles make up an ‘inner morality of law’ which Fuller describes as a procedural version of natural law. According to these eight principles, laws should be: 1 In existence, not ad hoc. 2 Promulgated, i.e. published. 3 Prospective, rather than retrospective. 4 Clearly stated and comprehensible. 5 Consistent with each other. 6 possible for people to obey. 7 Constant, i.e. relatively long-lasting and not constantly changing. 8 Applied and administered as stated. Failure to comply with these eight principles doesn’t render an individual law invalid; it results in something that cannot be properly called a legal system at all. Professor Hart, while not critical of the eight principles themselves, argued that Fuller was not justified in calling them a morality. He illustrated his objection by reference to the art of poisoning. Like law-making, poisoning is an activity with a purpose. The poisoner will develop principles to render his art effective. However, nobody would consider calling these principles the ‘inner morality of poisoning’. In other words, he accuses Fuller of confusing efficacy (how effective is the legislative system) with morality (is it good or bad). 2.3 The conflict between natural law and positivism As we have seen, positivists believe that a law is a legal rule that, if made in the manner recognised by the legislative power in the state, is valid irrespective of its content. In other words, as long as an elected parliament debates and makes the law everyone must abide by it. Conversely, natural lawyers believe that the validity of man-made laws depend upon their compatibility with a higher, moral authority. Laws lack validity where they do not satisfy the requirements of this higher moral authority. There are two main types of natural lawyers; those who believe in laws from a god and those who do not believe in god, but that society has an unwritten moral code that laws should follow. The Hart-Fuller debate (1958) describes an exchange between Lon Fuller and H.L.A. Hart published in the Harvard Law Review in 1958 on morality and law, which demonstrated the divide between the positivist and natural law philosophy. Hart took the positivist view in © Association of Costs Lawyers Training 2020 5 arguing that morality and law were separate and Fuller’s reply argued for morality as the source of laws binding power.