Law and Morality – An Impossible Mix?


Does Morality Belong

There’s a lot of controversy going on.

Some of it, of course, is fictitious controversy – more an excuse for the online crowds to vent their spleen than something associated with any kind of genuine concern (you know what I mean – “did actress X break her diet rules”, “did someone accidentally say something that became offensive in the last 5 minutes but wasn’t before” – that kind of thing).

But there have been a few interesting legal and political/legislative decisions (some of which are ongoing) which have to provoke a few thoughts in the mind of the lawyer.  After all, we are supposed to be the protectors of the law (or something cool like that).  But what does that really mean? Do we have any moral imperative, or is it just a matter of abiding by our legal ethics?

There is no Justice System

I hear the phrase “justice system” a lot in connection with law, and it’s important I think to realise that there really isn’t one. The word “justice” imparts a degree of subjectivity that simply isn’t possible to achieve within the confines of any systems. The variables are too complex, and what people think “justice” is varies wildly (Batman, for example – justice or not?).

At its best, what we have is a “legal system”.

It’s a framework of rules designed to operate in a way that promotes the prevailing legislative view about what’s best at an individual, group and country wide level at the time.

I stress “at the time” because, after all, there are any number of areas where the law has not been stagnant. It changes based on decisions and statues which creep the law forward (sometimes painfully slowly) to be something vaguely (but not always) reflective of society’s values.

At its highest, the law is just a set of rules – so let’s not pretend it can do something more.

What About Legal Ethics?

A lawyer’s ethics have nothing to do with their morals.

The fact that I might find a particular behaviour or idea to be objectionable at a moral level doesn’t mean that my legal ethics will forcibly prevent me from doing my job.

Legal ethics are more about client protection and the administration of “the system” than they are about morals.

Personally I think that legal ethics do a fairly reasonable job of achieving that goal.

But surely there is something more than my legal ethics? Am I really that devoid of personal depth that I can rest wholly on my legal ethics and pretend that there is nothing more to my beliefs?

Personal Morality

An interesting issue comes up in particular when people engage in debates about topics that are highly emotionally charged.  Same-sex marriage, gun control, divorce, child labour. The list of “moral” debates among politicians is fairly long (when it’s not about nonsense).

However the habit that is developing is an inability on the part of the politician to simply say “I don’t believe that X is right, and so I won’t support it”.

Instead, we look for a clinical reason to state our view. We look for studies which “prove” our point. We look for support from others “Department X of the Whatever Institute says that…”.

Personally I think this is a result of fear – in expressing a view on a moral issue, based solely on your moral beliefs, you run a fair risk of being disagreed with, ridiculed, or alienated by at least some of the people that hear your point of view.

As lawyers, of course, our habit is to follow the path of the politician. Rather than stating a belief (which might be questioned, or embarrasing) we default to defensible positions with a basis in fact. It’s how we have been trained, and largely how we practice.

But in limiting ourselves to that process, how are we affecting our authenticity?

Surely there is a place for the lawyer, the politician, the human, to simply make a stand and say “this is right” or “this is wrong”.

Of course such statements will be opinions, and as a result there will be debate. There will be argument.  There will be masses of grey, rather than a clear black and white. But in exploring our morality we come closer to our core, and we become more self-aware. We clarify our beliefs for ourselves and we grow as people.

The fact that morality might be based in opinion doesn’t mean we should be afraid of it.

Where does Morality exist in Legal Practice?

If you want to test yourself out, how about some of these:

  • Rejecting a well paying client (assuming you have that choice) because of their character – whether corporate or personal;
  • Helping someone at work when there is nothing at all to gain for you – perhaps something to lose;
  • Making a conscious decision that you will leave at 5:00pm each day to spend time with your family – irrespective of what it does to your career;
  • Speaking up when you hold a contrary view to the norm – even if it will cause you unwanted attention.

When did you last take a stand within your practice on a moral issue, rather than based strictly in the law?

Happy Lawyering!