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Philosophy and Legal Ethics: Ideals, Dilemmas and Dualism

Philosophy and Legal Ethics: Ideals, Dilemmas and Dualism (Program)

Joshua Davis, University of San Francisco School of Law (US) (Moderator); Pawel Skuczynski, University of Warsaw (Poland); Robert Atkinson, Florida State University College of Law (US); and Anusha Devi H, School of Law, Christ University (India)

Philosophy and Legal Ethics: Ideals, Dilemmas and Dualism

Joshua Davis: Legal Dualism and Legal Ethics

My Article argues that there is an important relationship between the nature of law and legal ethics. A crucial claim in support of this thesis is that the nature of law varies with the purpose for which it is being interpreted. In particular, the Article contends that natural law provides the best account of the nature of law when an interpreter seeks moral guidance from the law, and legal positivism provides the best account when an interpreter seeks instead to describe the law or to predict how others will interpret it. This philosophical position it labels “legal dualism.” Legal dualism has a significant implication for legal ethics: to the extent the law serves as a source of moral guidance for attorneys, they must act as natural lawyers. The Article tests legal dualism—and its corollary for legal ethics—against Bradley Wendel’s justly lauded book, Lawyers and Fidelity to Law. Wendel pairs legal positivism and the moral legitimacy of law, commitments that legal dualism suggests are incompatible. The Article argues that, while Wendel makes many important contributions, his argument is not fully successful to the extent it conflicts with legal dualism. It concludes that he—and others—should acknowledge and address the need for ethical attorneys to act as natural lawyers. That means lawyers sometimes must make moral judgements in saying what the law is. A draft of the article is available.

Pawel Skuczynski: The Concept of Dilemma in Legal Ethics Education

In ethics the concept of dilemma has a specific meaning. It encompasses situations of conflict of duties or obligations, in which the choice of one conduct necessarily involves the impossibility of different conduct and thus leads to inflicting a specific evil, and the choice of one conduct is necessary. Therefore, the situation of dilemma always involves the problem of the evil caused out of necessity and moral responsibility for it, so the problem of "dirty hands".

However, in legal ethics education this term is understood rather intuitively as a collective category for different kinds of situations, e.g. when it is necessary to make the choice subjectively perceived as difficult, conflicts of disproportionate values, conflicts of roles and duties, as well as conflicts of conscience.

Furthermore, it is not clear what kind of dilemma is in question. Firstly, they may be rooted in the professional roles, i.e. be specific, for example, for the profession of judge or advocate. Secondly, dilemmas may have their source in the specificity of each branch of law and have a nature of merely ethical problems of law. Thirdly, dilemmas may have their source in such solutions adopted in particular branches of law that modify the performed professional roles and therefore constitute not only an ethical issue of the law itself, but also of the professional ethics.

The aim of the paper is to analyze those differences and discuss if they can be explained by reference to particularities of common law and civil law legal cultures.

Robert Atkinson: The Curious Fate of Atticus Finch

For many American lawyers, particularly those who came of age in the civil rights era, Atticus Finch, the single-parent, county-seat lawyer of Harper Lee’s 1960 novel To Kill a Mockingbird, has been a continuing inspiration. He not only defended a Black man falsely accused of rape by a white woman in Depression-era rural Alabama; he also struggled all the while to save his young son and daughter from both the pervasive racism of their hometown and an all-too-easy hatred of their racist white townsfolk. For a growing chorus of scholars, however, Atticus’s approach to racial injustice has seemed “too little, too late,” at best no better than the Brown court’s “with all deliberate speed.”  Two recent events have re-opened that debate: the publication last summer of Harper Lee’s second novel, Go Set a Watchman, and her death earlier this year. Against that background, this presentation will re-consider Atticus’s legacy as a lawyerly role model.

Anusha Devi H: Identifying Philosophy and Objective Ethics in Law for Pursuing a Harmonious Global Society

It is fair to say that philosophy is the underpinning of every law and retaining ethics in the society is the prime tenacity of law. However there is continually a lack of clarity on what is ethical and what isn’t due to the subjectivity of understanding the term ethics. The paper aims to identify certain significant philosophical notions embedded in law and the understanding of what ethics is through four avenues. First, it brings about a relation between J.S. Mill’s harm principle and principles of natural law with regard to radical freedom and existentialism thereby discouraging restrictions on the individual, imposed by any law. Second, it draws a connection between Kant’s ideas and current scenario of laws framed. Third, it identifies what ethics truly is by way of noting actions, pleasure, pain and punishment through consequentialism. Fourth, the paper aims to bring about a remedy through ethics and philosophy for the various conflict of ideas in law witnessed in the global world thereby proposing an ideal society.

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