Globalization has not only witnessed the growth of international trade, but also a rise in immigration, the proliferation of the legal market,Footnote 1 pro bono services,Footnote 2 and legal education.Footnote 3 One of the effects of globalization is that lawyers, regardless of their geographical location, are likely to be dealing with clients from different parts of the world. The teaching of professional legal ethics should, therefore, prepare future lawyers for cosmopolitan legal practice.Footnote 4 Ethics may be defined as the application of moral philosophy to addressing questions of right and wrong.Footnote 5 Inspired by deontological ethics, this article seeks to equip law students to deal with an interconnected and globalized world by incorporating Kantian moral cosmopolitanism (KMC) to the teaching of professional legal ethics for barristers and solicitors in England and Wales.
In general terms, cosmopolitanism is the idea that moral obligations are owed to all human beings, irrespective of race, gender, nationality, or any other defining characteristics.Footnote 6 Nussbaum, in her influential essay on cosmopolitan education, asserts that moral ideals of justice and equality are best served by a commitment to cosmopolitanism which holds that a person’s “allegiance is to the worldwide community of human beings.”Footnote 7 Consequently, future barristers and solicitors should be taught to be cognizant of moral duties owed to third parties. It will be argued that KMC is a useful conceptual tool for interpreting and expanding the duties contained in the codes of professional conduct for barristers and solicitors. This article also contends that Clinical Legal Education (CLE) programs are an appropriate methodology for teaching KMC.
This article will proceed as follows: After the introduction, Part B provides a brief outline of the main elements of Kant’s philosophy and theory of education. Part C discusses the professional codes of conduct for barristers and solicitors and highlights their limitations in relation to moral cosmopolitan education. Part D examines the teaching of professional legal education at both undergraduate and postgraduate levels. Parts E and F examine Kant’s theory of ethics in order to construct a moral cosmopolitan framework to supplement the professional codes of conduct. Part G argues that CLE is an appropriate methodology for teaching KMC values.
B. Kant and Cosmopolitan Moral Education
There are three broad themes which render Kant’s philosophy compatible with the teaching of professional legal ethics: Autonomy, moral education, and duty. The concept of autonomy underpins Kant’s moral theory. Prior to Kant, autonomy had been strictly a political term. He was, thus, the first philosopher to import this concept into ethics.Footnote 8 For Kant, morality can only arise from freedom.Footnote 9 Complete freedom is only possible where it is not influenced by “non-self-determined causes” such as external pressures, for example lawyer coercion, or internal causes, such as a person’s personal preferences or inclinations.Footnote 10 Freedom, in this strong sense, is autonomy of the will, as opposed to heteronomy, which is the subjection to any determination from either external or internal sources.Footnote 11 Thus, on Kant’s account and drawing on Rousseau,Footnote 12 subjection even to the will of God is heteronomy, not freedom.Footnote 13 The concept of autonomy can play an important role in legal ethics by reminding lawyers to treat clients as autonomous individuals and allowing them to reach their own decisions.Footnote 14 Heteronomy can also be a useful conceptual tool as it can direct lawyers to be cognizant of pressures affecting a client’s ability to make autonomous decisions, such as undue influence from a family member.
Moral education relates to Kant’s question: “How then, are we to seek [moral] perfection, and from whence is it to be hoped for?” His answer is: “From nowhere else but education.”Footnote 15 Although Kant’s educational theory is primarily aimed at children, its main tenets are applicable to legal education by virtue of the fact that his objective was to develop moral character:
One must also pay attention to moralization. The human being should not merely be skilled for all sorts of ends, but should also acquire the disposition to choose nothing but good ends. Good ends are those which are necessarily approved by everyone and which can be the simultaneous ends of everyone.Footnote 16
Kant’s theory of education contains not only a cosmopolitan dimension but also shares a similar aim with professional legal ethics: The cultivation of ethical/moral character.Footnote 17 For Kant, education is either physical or practical.Footnote 18 The latter, which is relevant for present purposes, is concerned with cultivating personality,Footnote 19 and consists of skill, worldly prudence, and morality.Footnote 20 Skill, which is necessary for the cultivation of talent, must be “thorough and not superficial.”Footnote 21 Kant, however, does not define “skill.” According to Pring, skill is “the generic term for knowledge, understanding, mental capacity, practical competency, and interpersonal sensitivity, thereby blurring important distinctions.”Footnote 22 Adopting Pring’s definition, it can be argued that a thorough, as opposed to superficial, understanding of legal ethics requires studying law in a practical context. Worldly prudence and morality both relate to developing a “good character.”Footnote 23 The former, “consists in the art of using our skillfulness effectively, that is, of how to use human beings for one’s purposes.”Footnote 24 However, to engage in worldly prudence, self-control is necessary in order to avoid using others as mere means. In the context of clinical programs, it is almost impossible for students to develop into reflective practitioners without using the experiences of their clients/patients for their deliberations.Footnote 25 Some students might elect to take part in clinical education out of self-interest. There is, therefore, a risk that such students may use clients as mere means rather than ends in themselves. To militate against the mere use of others, Kant’s second formula—discussed in part F.3—can act as a moral constraint to prevent using others as mere means, and thereby facilitating self-control.
To develop one’s moral character, Kant writes, “[o]ne should give children some pocket money with which they could help the needy, and then one would see whether they are compassionate or not.”Footnote 26 Moral education, therefore, involves fostering compassion in students. Kant’s advice regarding giving children pocket money to nurture compassion may be interpreted to mean that he supports the idea of providing students with opportunities, grounded in practical experience, to develop their sense of compassion. Compassion, for present purposes, is defined as “the feeling that arises in witnessing another’s suffering and that motivates a subsequent desire to help.”Footnote 27 Compassion, therefore, promotes positive obligations to assist those who are suffering.
The concept of duty underscores the professional codes of conduct for barristers and solicitors, for example, duty of confidentiality, duty to avoid conflict of interest, and the duty to act in the best interest of the client. Kant’s educational theory involves instilling students with a sense of duty, which is divided into duty to oneself and duty towards others. The latter requires “[r]everence and respect for the rights of human beings.”Footnote 28 Kant argues that it is essential that students are given the opportunity to “put [reverence and respect] into practice.”Footnote 29 Thus, practice-oriented education is an essential element of Kant’s theory of moral education. The next section will examine the professional codes of conduct and highlights some of their limitations in relation to moral development.
C. The Professional Codes of Conduct for Barristers and Solicitors
The legal profession in England and Wales is divided into two main branches: Barristers and solicitors. Barristers are regulated by the Bar Standards Board (BSB),Footnote 30 while the Solicitors Regulation Authority (SRA) is responsible for the regulation and education of solicitors.Footnote 31 The BSB’s role includes setting out the education and training requirements for becoming a barrister and setting the standards for professional conduct in the BSB’s Handbook.Footnote 32 The Handbook includes the Code of Conduct, which contains the ten core duties (CDs) that underpin the BSB’s regulatory framework, and the conduct rules (rCs), which are designed to supplement the CDs. The codes of professional conduct for solicitors are in the SRA’s Standards and Regulations. These provide two codes of professional conduct: A code for law firms and a code for solicitors.Footnote 33 The Standards and Regulations also stipulate the seven Principles, which are “the fundamental tenets of ethical behaviour” which solicitors must uphold.Footnote 34 In the event of a conflict between the Principles, those that safeguard the wider public interest—Principles 1 and 2—take precedence over an individual client’s interest —Principle 7.Footnote 35
In its 2018 report, entitled Balancing duties in litigation, the SRA warned solicitors that they are not “hired guns” whose only duty is to their client.Footnote 36 Solicitors also owe duties to the courts, third parties, and to the public interest.Footnote 37 The report highlights incidents where solicitors have engaged in improper or abusive litigation such as taking unfair advantage of unrepresented parties, misleading the court, or acting for clients whose cases are weak or unwinnable. The report also found that some solicitors pursued their own interests at the expense of their clients. KMC, with its commitment to autonomy and dignity, can address some of the concerns raised in the SRA’s report. Although the Handbook and the Standards and Regulations provide guidance on ethical behavior, they suffer from various limitations.
I. The Limitations of the Professional Codes of Conduct
The teaching of professional legal ethics is intended to prepare future lawyers to address ethical dilemmas such as conflict of interest,Footnote 38 acting with integrity.Footnote 39 Although these dilemmas can be resolved by following the professional codes, there are various limitations associated with the sole reliance on the professional codes of conduct. First, they “will only help develop the sensitivity and judgment to recognize possible breaches of the rules and how to apply them.”Footnote 40 Second, a common aim of professional codes is to outline the norms of professional practice. They outline, inter alia, the obligations owed to clients, general ethical principles, and advice on how these principles may apply in a practical context.Footnote 41 Thus, breach of the SRA’s Principles and/or duties owed to clients, such as the duty of confidentiality, can result in disciplinary action brought against the law firm and the lawyer. The professional codes are, therefore, primarily concerned with censure and maintaining the public’s trust, rather than promoting moral reasoning. Third, professional codes are drafted to protect the “ideal of the lawyer as an adversarial advocate.”Footnote 42 However, the adversarial approach not only encourages moral neutrality but also privileges the interest of the client.Footnote 43 A possible consequence of privileging client’s interest is that students may be trained to adopt a “hired-gun” approach. However, as stated in Balanacing duties in litigation, solicitors also owe duties to the courts, third parties and to the public interest.Footnote 44 Fourth, using the codes of conduct to teach professional ethics, without a “coherent theme or explicit moral philosophy”Footnote 45 limits the resolution of ethical problems to the application of the rules contained in the codes. Professional codes are, therefore, limited in their application to “easy cases.” Moral philosophy can enhance the scope of the codes of conduct by promoting ethical decision-making and a cosmopolitan ethos.
Fifth, professional codes generally set out the minimum requirements of ethical behavior.Footnote 46 However, prescribing a set of norms is not the same as providing a framework for guiding the lawyer’s conduct. Promoting professional legal ethics among students and lawyers should require more than simply positing a set of minimum standards of behavior. Lawyers ought to be taught to address situations which are either not included in the codes of ethics or included but are ambiguous. An example of the latter is the duty to act in the best interest of the client.Footnote 47 Lawyers, for example, must decide whether to act in a manner that promotes client autonomy or adopt a paternalistic approach. This may contribute to inconsistent behaviour on the part of the lawyer. Moreover, owing to the fact that autonomy and paternalism are complex philosophical terms, students should be given guidance in relation to interpreting these concepts. Finally, given the globalization of the legal profession, it is debatable whether the codes of conduct can address ethical issues in the international arena, such as local customs and the values and expectations of clients in different jurisdictions.Footnote 48 One approach to addressing the limitations of the Handbook and the Standards and Regulations is to incorporate KMC into the teaching of legal ethics.
D. Teaching Professional Legal Ethics in England and Wales
At the time of writing, students who wish to qualify as barristers or solicitors must successfully complete three stages. The first involves the completion of either a law degree or the Graduate Diploma in Law (GDL).Footnote 49 This is then followed by a vocational programme: The Bar Professional Training Course (BPTC) for barristers, or the Legal Practice Course (LPC) for solicitors. The final stage is the apprenticeship: A one-year pupillage for barristers or working as a trainee-solicitor for two years.
Despite Economides and Roger’s recommendation to the Law Society that legal ethics should be mandatory in undergraduate law degrees, the teaching of legal ethics is not a compulsory part of the law degree or the GDL.Footnote 50 It is, however, included as part of the BPTC and the LPC, albeit in a limited way.Footnote 51 The teaching of ethics on the vocational courses is predominantly concerned with the application of the professional codes to hypothetical scenarios. Students, during the vocational courses, are assessed on whether their response to an ethical issue is one which is within the codes of conduct. Nicolson argues that teaching ethics at this stage is “too late” because students would have already been exposed to ethics, legal practice, and professional roles, albeit in an unstructured way.Footnote 52 Nicolson concedes that in the absence empirical research, it is difficult to buttress this claim.Footnote 53
The separation between the teaching of law and ethics can be attributed to the pervasive influence of legal positivism, where students are taught to view law in technical terms and its analysis is carried out in a value-neutral manner.Footnote 54 In other words, students are taught that the law’s moral content is irrelevant.Footnote 55 This echoes Austin’s formulation of legal positivism: “The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry.”Footnote 56 Thornton refers to the teaching of law as a value-neutral autonomous discipline as “technocentrism.” She criticizes this pedagogic practice on the ground that it “focuses primarily on legal rules [and] creates a law school environment in which the technocratic is normalized.”Footnote 57 Despite modules which include socio-logical theories of law and feminist critique, legal formalism remains a dominant approach in undergraduate legal education and the vocational courses. Students are, therefore, taught that “thinking like a lawyer” entails “learning how to separate ‘legal’ issues from other types of issue (moral, political, or social).”Footnote 58 However, while moral values are seen as significant to moral decision-making, students may be led to believe that there is no necessary connection between law and morality.Footnote 59 Thus, absent from the teaching of legal ethics on the vocational stages are important concepts, which inform legal practice, such as autonomy, as well as academic critique of the dominant professional norms and the moral responsibility of lawyers. Crucially, the codes fail to effectively promote ethical sensitivity. The limitations of the formalist approach to legal education is highlighted by Sarat, who writes that law students “have learned little about encountering people in situations of stress and fashioning solutions to their problems in ways that are responsive to the human as well as legal dimensions of the problems.”Footnote 60 There is, therefore, scope for the teaching of legal ethics to be enhanced by engaging students with a philosophical framework that promotes moral decision-making through experiential learning. The next section examines key elements of Kant’s philosophy and theory of pedagogy and their significance to legal ethics.
E. Kant’s Deontological Ethics
Kant’s commitment to the concept of duty, irrespective of the consequences, makes him the quintessential deontologist.Footnote 61 Actions, for Kant, have moral worth when they are performed from a duty to the moral law. To illustrate this point, he provides the example of a grocer not overcharging his customers.Footnote 62 If the grocer’s honest actions were done out of self-interest and not out of a sense of duty to the moral law, then such actions are not truly moral in the Kantian sense. This strict test for determining moral actions can be seen in a second example provided by Kant: That of a person who is not inclined to help those in distress.Footnote 63 If this person performs an action benefitting those facing hardships out of duty to the moral law, then their action has moral worth. Conversely, one might help others because “they find an inner pleasure in spreading happiness…and can take delight in the contentment of others.”Footnote 64 Such actions are described as not possessing “genuinely moral worth.”Footnote 65 Although this might appear peculiar at first, on closer examination, why should a person’s moral worth be dependent on what nature or circumstances have endowed them with accidentally? Take for example a client with limited financial means who is being threatened with a notice of eviction. A lawyer may desire to help such a client because of subjective reasons, rather than out of duty to the moral law, such as a commitment to access to justice. This can be contrasted with a client charged with various criminal offenses and who is rude and aggressive towards their lawyer. One may be less sympathetic towards the criminal/aggressive client than the client being threatened with eviction. However, if out of duty to the moral law, the lawyer displays care and respect towards the criminal client, then their actions are said to have moral worth.
In his Metaphysics of Morals, Kant presents a taxonomy of duties which he divides into juridical duties and ethical duties.Footnote 66 The former can be coercively enforced by external means such as civil and criminal law. Juridical duties are not relevant for present purposes because the focus of this article is on the moral conduct of the individual as opposed to enforcing ethical behavior through external mechanisms. Ethical duties, on the other hand, must not be externally enforced, as this would violate the rights of the person coerced.Footnote 67 Certain moral endowments, such as the feelings of respect, self-esteem, and love for other human beings, are the “subjective conditions” of morality.Footnote 68 A person must constrain themselves to follow these obligations through their own reason and motives, established a priori from rational capacities.Footnote 69 Kant distinguishes between two types of ethical duties: Perfect and imperfect. Perfect duties, on the one hand, prescribe a specific type of prohibition/omission and do not permit discretion. Imperfect duties, on the other hand, stipulate only a general objective, they do not dictate the specific type of action by which that objective is realized.Footnote 70 Unlike perfect duties, imperfect duties permit discretion in their implementation. Kant provides four examples in relation to perfect and imperfect duties: (1) the duty to refrain from suicide; (2) the duty to abstain from making false promises; (3) the duty to develop our talents; and (4) a duty to help those facing hardships.Footnote 71 Duties (1) and (2) are perfect duties because they do no permit discretion. Duties (1) and (2) are also negative duties because they prohibit the stipulated actions. Duties (3) and (4) are imperfect positive duties, and unlike perfect duties allow for discretion in their implementation. For example, lawyers are able to fulfill their duty of beneficence (4) by taking part in pro bono activities. In relation to the duty of beneficence, Kant states, “[t]his is, however, merely to agree negatively and not positively with humanity as an end in itself unless every one endeavors also, so far as in him, to further the ends of others.”Footnote 72 A general duty of beneficence should be understood as a duty to engage in pro bono work to assist individuals and marginalized groups in the realization of particular ends they have freely set for themselves.
Kant’s duty to others is not confined to the imperfect duty of beneficence. He divides our duties to others “as human beings” into two categories, the duties of “love” and the duties of “respect.”’Footnote 73 Although he calls them “duties of love,” Kant does not mean that they are duties to have specific feelings towards others. Instead, these should be thought of as duties to act towards others in certain ways.Footnote 74 Failure to fulfil duties of love amounts to “lack of virtue.”Footnote 75 Thus, lawyers have a general duty towards clients regardless of how they may feel about them. This abstraction of specific sentiments towards others does not mean that students and lawyers should be discouraged from nurturing certain feelings:
It is therefore a duty not to avoid the places where the poor who lack the most basic necessities are to be found but rather to seek them out, and not to shun sickrooms or debtors’ prisons and so forth in order to avoid sharing painful feelings one may not be able to resist.Footnote 76
Thus, students should participate in programs such as pro bono services and CLE to develop emotions such as sympathy and, as stated previously, compassion. Kant’s ethics, therefore, require students and lawyers to seek places where people are suffering and in need of help, not only to develop a sense of sympathy, but also to fulfil the duty of benevolence. The purpose of acquiring such attitudes is not “a duty to share the sufferings” of others; it is “a duty to sympathize actively in their fate.”Footnote 77 According to Kant, a person has a duty to “cultivate the compassionate natural (aesthetic) feelings in [themselves]” in order to “make use of them as so many means to sympathy based on moral principles and the feeling appropriate to them.”Footnote 78 Kant classifies “sympathy” into two categories. The first, “humanitas practica,” the capacity to share the feelings of others, is useful in terms of promoting the happiness of others.Footnote 79 The second type of sympathy, “humanitas aesthetica,” involves the sharing of other’s feelings but does not necessarily give rise to practical actions.Footnote 80 Thus, the former should be cultivated to promote the duty of beneficence in legal ethics. Sympathy is “one of the impulses that nature has implanted in us to do what the representation of duty alone would not accomplish.”Footnote 81 This can be interpreted to mean that sympathy can strengthen a lawyer’s duty towards others. Alternatively, Guyer suggests that what Kant has in mind is that individuals’ natural inclination to sympathy can act as a conceptual tool to direct what actions need to be taken to fulfill one’s “imperfect” duty of benevolence.Footnote 82 Wispé defines sympathy as “the heightened awareness of another’s plight as something to be alleviated.”Footnote 83 Thus, sympathy can serve as a mechanism for relating to others by giving rise to an affinity between two parties.Footnote 84 Developing a sense of affinity involves students imagining themselves to be affected by the same hardships as those affecting their clients and/or marginalized groups. Emotions, such as sympathy, can function as a “pair of moral eyes” that permit lawyers to see where their moral obligations arise.Footnote 85 However, Kant warns that sympathy can give rise to:
[Individuals] flattering themselves with a spontaneous goodness of heart that needs neither spur nor bridle and for which not even a command is necessary and thereby forgetting their obligation, which they ought to think of rather than merit.Footnote 86
Those who are in a self-congratulatory state of mind may imagine themselves as so good-hearted that they do not require the “yoke’ of duty.”Footnote 87 In relation to duties of respect, namely those “duties to one’s fellow human beings arising from the respect due to them,” Kant has in mind obligations not to be arrogant towards others and not to defame or ridicule them.Footnote 88 The Kantian lawyer must be modest, dignified, and humane.Footnote 89 Even to clients who have been charged with or are guilty of serious criminal offenses.Footnote 90 Kant’s justification for imposing a duty of respect is that arrogance, defamation, and ridicule are “contrary to the respect owed to humanity as such.”Footnote 91 Failure to show respect owed to “every human being as such is a vice.”Footnote 92 According to Guyer, duties of respect are perfect rather than imperfect duties.Footnote 93 They are not only expressed as negative duties, in the sense they must be avoided, but also allow no room for “judgement or latitude.”Footnote 94
Professional legal ethics can also be enhanced by drawing on Kant’s philosophy regarding the duty to engage in law reform. This duty is absent from the professional codes of conduct. According to Kant, citizens have the right to inform their governments of unjust practices that require reform.Footnote 95 This right suggests that states have a correlative duty to promote this right.Footnote 96 However, he does not explicitly argue that citizens have a duty to exercise their right to inform their governments of injustices and petition for redress.Footnote 97 This oversight on Kant’s part is immaterial because it is implicit in his theory of beneficence that a person has an imperfect duty to assist others. Moreover, given Kant’s cosmopolitan ethics, it can be argued that an English or Welsh lawyer’s moral right to inform a government of injustices is not restricted to the United Kingdom.
Kant’s commitment to duty to the moral law led him to reject consequentialist theories such utilitarianism. This raises the question of “How do we determine our duties to the moral law?” To answer this question, we need to examine Kant’s supreme principle of morality.
F. Kant’s Supreme Principle of Morality
Kant formulated the categorical imperative (CI) as the supreme principle of morality: “All imperatives command either hypothetically or categorically.”Footnote 98 The CI can be distinguished from a hypothetical imperative (HI). A HI can be expressed as follows: “If a person wills an end and certain means are necessary to achieve that end and are within his power, then he ought to will those means.”Footnote 99 A HI typically begins with an “If …” or contains an “if:” “If you want to do well in your law degree, then attend all your lectures.” On the one hand, the obligation to attend one’s lectures is dependent on the objective to do well in the exams and, hopefully, secure employment in a law firm. A CI, on the other hand, is an unconditional and binding command irrespective of whether it confers, directly or indirectly, any benefits. The CI is not tainted by any conditional desires. Instead, it simply commands “Do X and let the consequences be what they may.”Footnote 100 Although there is one CI, also known as “the imperative of morality,”Footnote 101 Kant puts forward various versions of it. The most common formulations are:
1. “Act only on that maxim through which you can at the same time will that it should become a universal law”Footnote 102
2. Act in such a way that you always treat humanity, whether in your own person or in the person of another, never simply as a means, but always at the same time as an end.Footnote 103
3. A rational being belongs to the kingdom of ends as a member, when, although he makes its universal laws, he is also himself subject to these laws.Footnote 104
Each of these formulae will be examined in the relation to the teaching of legal ethics.
F. Three Most Common Formulae
I. The First Formula
When examining the first formula, which concerns the form of the CI, it is important to focus on the term “maxim.” There is an assumption that whenever a person acts, they have a reason or an intention for the action;Footnote 105 for example, a student decides that volunteering in a pro bono center will increase their employment prospects. The student’s reason for volunteering is subjective and conditional on their desire to secure a job in a law firm. This example falls under the definition of a HI. The first formula, however, requires individuals not to act on maxims other than those that could at the same time become universal law. This ensures that subjective principles of action (maxims) comply with the demands of duty. Unlike the HI, the CI does not depend on an “if;” the volunteering in this example is done for its own sake and not for the sake of some self-interested end. Similarly, complying with the duty of confidentially should be done out of a sense of duty to the client rather than simply because it is stated in the codes of conduct.Footnote 106 What the first formula does not address, however, is what makes an action right. It simply informs individuals of what may happen if everyone, including themselves, acted according to their maxims. The first formula allows students to reflect on their proposed actions by asking: “What if everyone acted this way?” It asks them to imagine a world where their decisions were a law for everyone to follow and whether they would be willing to live in such a world.Footnote 107 The emphasis is not on what an individual would want or find acceptable but on what they can will or intend “as a universal law.” Intuitively speaking, universalizing one’s maxims reveals cases of unfairness, deception, and cheating.Footnote 108 The first formula raises the following question: Why should individuals be concerned about making exceptions for themselves? The answer is to be found in Kant’s second formula.
II. The Second Formula
Kant’s second formula is concerned with the content of the CI and, as a result, provides the standard of what amounts to a morally right action.Footnote 109 For this standard, consider the common definition of “Humanity.”Footnote 110 Humanity refers not just to humankind in the biological sense.Footnote 111 Humanity also alludes to an individual’s capacity to freely set their own ends.Footnote 112 An important consequence of placing a special value on a client’s capacity to set and rationally pursue their own values, is that it allows them to freely “pursue their own life plans subject only to the constraint that others be allowed a similar freedom.”Footnote 113 A rational person, in the Kantian sense, is one who can set their own ends and can autonomously act on them.Footnote 114 When advising clients, lawyers are not only to respect the client’s capacity to make plans but also respect—within legal limits—the plans they make.Footnote 115 This entails a client’s decision being free from manipulation and coercion. It is because an individual can set their ends and autonomously follow those ends that they have worth and should be respected.Footnote 116 According to Kant, an individual’s free will is what gives them dignity and unconditional worth.Footnote 117 A person’s dignity has an “unconditional and incomparable worth.”Footnote 118 Kantian ethics possess an important feature which can enhance the teaching of legal ethics, namely, all clients are ends in themselves and deserving of respect, because any person “can measure [themselves] with every other being of this kind and value [themselves] on a footing of equality with them.”Footnote 119 This obligation can direct lawyers to be attentive to the principle that they “cannot deny all respect to even a vicious man … even though by his deeds he makes himself unworthy of it.”Footnote 120 Kantian ethics can enhance the professional codes of conduct in relation to acting with independence,Footnote 121 acting in ways that encourage diversity,Footnote 122 and acting in the best interest of the client.Footnote 123 Focusing on client autonomy and dignity can also play a role in assisting lawyers to address heuristic bias.Footnote 124
Kant’s moral theory has been described as an “Appeal to Autonomy.”Footnote 125 Actions, according to Kant, that are carried out from duty to the moral law demonstrate the autonomy of the person. He claims that “Autonomy is … he ground of the dignity of human nature and every rational nature.”Footnote 126 Kant’s idea of autonomy does not refer to self-determination in the juridical sense.Footnote 127 An autonomous action is a free action because it is directed by reason and not by desire or inclinations.Footnote 128 Freedom, for Kant, is displayed when a person acts according to the duty to the moral law, the CI. For Kant, “a free will and a will under moral laws are one and the same thing.”Footnote 129 In other words, freedom is exercised when an individual acts according to duty to the moral law and not according to their desires. These moral duties are determined by reference to the CI.
Autonomy for Kant is grounded in both dignity and respect.Footnote 130 O’Neill describes Kant’s conception of autonomy as, “a matter of adopting law-like principles that are independent of extraneous assumptions that can hold only for some and not for other agents.”Footnote 131 This notion of autonomy is based on reason rather than on what the individual desires. In the context of professional legal ethics, O’Neill’s principled autonomy approach rejects lawyer behavior such as coercion, deception, and manipulation. The value of this form of autonomy is that it must be based on principles to which everyone could consent.Footnote 132 An autonomous lawyer, in the Kantian sense, is one whose actions are free from emotions and inclinations. This can aid a lawyer in reflecting on whether their advice to their client is, for example, tainted by emotions towards their client, such as bias. Following Kant’s concept of autonomy, there is no obligation on a lawyer to follow a client’s instructions if such instructions are based on desires or inclinations. However, a lawyer’s role is not to impose their morality on their clients. Lawyers should enable their clients to achieve their ends, within legal limits.Footnote 133 An alternative conception of autonomy is put forward by Beauchamp and Childers:
To respect an autonomous agent is, at a minimum, to acknowledge that person’s right to hold views, to make choices, and to take actions based on personal values and beliefs. Such respect involves respectful action, not merely a respectful attitude…It includes, at least in some contexts, obligations to build up or maintain others’ capacities for autonomous choice while helping to allay fears and other conditions that destroy or disrupt their autonomous actions. Respect, on this account, involves acknowledging decision-making rights and enabling persons to act autonomously, whereas disrespect for autonomy involves attitudes and actions that ignore, insult, or demean others’ rights of autonomy.Footnote 134
Respecting a client’s autonomy should not equate to a lawyer acting as a “hired-gun.” A client-centric model also entails respecting a person’s dignity. According to Freedman:
One of the essential values of a just society is respect for the dignity of each member of that society. Essential to each individual’s dignity is the free exercise of his autonomy. Toward that end, each person is entitled to know his rights with respect to society and other individuals, and to decide whether to seek fulfilment of those rights through the due process of law.Footnote 135
Freedman’s client-centric model can be expanded to include the client’s rights as well as any moral or legal duties the client might have towards others. This requires being mindful of Mill’s account of liberty: “[T]he only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.”Footnote 136 This principle, also known as the “harm principle,”Footnote 137 can be applied to the lawyer-client relationship to protect the wider public interest and third parties.Footnote 138 For example, where it transpires that the intention of a vexatious client is to cause emotional or financial harm to the other party, the harm principle can help inform the lawyer to provide the client with additional options such as alternative dispute resolution. However, the harm principle does not mean that the lawyer should behave in a paternalistic manner. KMC rejects lawyer dominance and paternalistic behavior. Dworkin defines paternalism as “the interference with a person’s liberty of action justified by reasons referring exclusively to the welfare, good happiness, needs, interests or values of the person being coerced.”Footnote 139 A paternalistic lawyer is one who assumes the role of primary decision-maker in the belief that they are acting in their client’s best interest.Footnote 140 Although Kant did not define paternalism, anti-paternalist sentiments are implied in his second formula as well as his absolute prohibition on conduct such as lying. Further evidence of his negative view on paternalism can be found in his political writings where he states that a “paternalistic government” treats its citizens “like minor children who cannot distinguish between what is truly useful or harmful to them.”Footnote 141 Paternalism interferes with the client’s rational autonomy and reduces the client to a “means to ends of the paternalist’s making, rather than being recognized as the source of his or her own ends.”Footnote 142 Kantian ethics can avoid situations where the lawyer becomes the primary decision maker.Footnote 143 Respecting client autonomy entails avoiding using clients as mere means, for example lying or deceiving clients for economic gain.Footnote 144
III. The Third Formula
Kant’s third formula, which connects the first two formulae of the CI, holds that individuals should act as if they were members of an ideal kingdom of ends in which they were both subject and sovereign at the same time. Persons within this moral community (“kingdom”) are members of a possible social order,Footnote 145 whereby each member makes moral decisions. freedom of each person is acknowledged and consistently respected by all the members of this community.Footnote 146 This denotes reciprocal relationships between persons.Footnote 147 Morality, therefore, includes one’s commitment to others.Footnote 148 Moral behavior conceived in this way highlights the idea of interdependence and may prevent future lawyers from acting only as “hired guns” who zealously pursue their clients ends, irrespective of the consequences on third parties. By accepting that every person has the ability to make choices and decisions, the third formula provides a form of equality for all.Footnote 149 By asking individuals to imagine themselves to be equal members of a moral community, Kant’s theory of ethics is described as “ethics of democracy” because “[i]t requires liberty (allowing everyone to decide for himself), equality…, and fraternity (think of yourself as a member of a moral community).”Footnote 150
For Kant, the kingdom of ends acts as a nexus to his cosmopolitan political community.Footnote 151 According to Fine, Kant’s conception of cosmopolitanism is “widely viewed as the philosophical origin of modern cosmopolitan thought.”Footnote 152 Kant defines cosmopolitanism as “as the womb in which all original predispositions of the human species will be developed.”Footnote 153 Kant’s cosmopolitanism deals with the cultivation of a global community within which every person can develop their human capacities.Footnote 154 Although influenced by the Stoics,Footnote 155 Kant’s conception of moral cosmopolitanism was in response to a world which he believed had become interconnected to the point where “the violation of right at any one place on the earth is felt in all places.”Footnote 156 For present purposes, moral cosmopolitanism is applied to the teaching of professional legal ethics to foster a sense of moral obligations to the universal human community.Footnote 157
Kant’s conception of cosmopolitanism, however, is “limited to conditions of universal hospitality,” a right not to be treated with hostility when visiting foreign lands.Footnote 158 This notion of cosmopolitanism is essentially a combination of Kant’s second and third formulae. Kant’s moral community can be extended to include obligations towards others in the global community.Footnote 159 Within this ethical community, human beings are “ultimate units of concern” entitled to equal consideration regardless of their citizenship, nationality, or any other characteristic.Footnote 160 According to Appiah, cosmopolitanism also requires a second limb: Individuals should be mindful of each other’s differences and “there is much to learn from these differences.”Footnote 161 Recognizing cultural, religious, or language differences can act as a reminder to students and lawyers that they ought to take seriously the values and beliefs of their clients. Cosmopolitanism conceived of these two limbs provides an avenue for lawyers to be conscious of their clients’ values and “lived experience.”Footnote 162 Awareness of such differences can be beneficial to various aspects of the lawyering process such as interviewing, negotiating, and strategizing.Footnote 163
This section has outlined key concepts, in Kant’s philosophy, concerning the cultivation of a cosmopolitan moral character. The next section argues that CLE is an appropriate methodology for teaching KMC.
G. KMC and CLE
Unlike professional codes of conduct, CLE can act as a methodologyFootnote 164 for bridging the gap between theory and practice.Footnote 165 CLE includes, but is not limited to, pro bono legal activities.Footnote 166 For present purposes, CLE incorporates a variety of experiential methods such as live-client clinics, Street Law, mooting, and client interviewing and counselling.Footnote 167 In general terms, experiential education involves connecting real-life to learning through the process of reflection.Footnote 168 Nicolson contends that live-client clinics are “an excellent and viable means of assisting in the process of moral character development.”Footnote 169 Although live-client clinics have an advantage over other forms of experiential learning, by virtue of the fact that students are dealing with “live” cases, KMC can be taught using any form of experiential learning because it is concerned with applying moral education in a practical context. In addition to promoting social justiceFootnote 170 and developing reflective practice,Footnote 171 CLE can foster empathy and compassion because it “puts the emotional content back into law.”Footnote 172 The BSB’s Professional Statement for Barristers stipulates the need to demonstrate emphatic behavior.Footnote 173 A 2016 study demonstrated that formal training can increase empathy in adults.Footnote 174 The teaching of empathy can be incorporated into CLE programs by including the following four experiential elements: Classroom-based role play, self-reflection, situated learning, and acting in a manner that is responsive to the situation and the client.Footnote 175 Similarly, Kant’s duty of respect, compassion, and sympathy can be taught through CLE programs using the same four elements. Pence raised the issue of whether compassion can be taught in medical ethics in his widely cited article.Footnote 176 He concluded that compassion can be taught provided this virtue is taught alongside other medical virtues. The teaching of compassion can be incorporated into CLE programs, such as live-client clinics, where students are encouraged to develop their communication skills, self-reflection, and to take action, where feasible, to assist those who are suffering injustices.
CLE has also been said to act as a vehicle for ethics-focused learning,Footnote 177 inculcating students with human rights-based values,Footnote 178 and promoting moral decision-making.Footnote 179 CLE is, therefore, an appropriate vehicle for developing the values espoused by KMC. In the context of medical education, moral reasoning:
[P]romotes a consideration of patients on an individual level and the adoption of a holistic approach to their care. The resultant concordance of doctor and patient may increase the likelihood of mutually satisfactory decisions, patient compliance and beneficial clinical outcomes.Footnote 180
The benefits of moral reasoning can also apply to CLE and legal practice, as both the medical and the legal profession value, inter alia, the concept of patient/client care. However, professionals should not impose their personal opinions about a given situation.Footnote 181 Instead, they ought to depart from their personal frames of reference to achieve a better empathic understanding of their clients.Footnote 182 KMC, which rejects paternalism, can contribute to moral education by directing students to be attentive to any inclinations that may affect their decision-making.
In addition to rejecting paternalistic behavior, KMC also places a moral constraint on activities which use clients as mere means. In a CLE setting, KMC rejects treating persons, natural and legal, purely instrumentally for the purposes of achieving one’s own ends. In relation to law firms, as profit-making entities, there is a risk that some organizational practices may lead to clients being used as mere means, such as where lawyers receive cases they know little or nothing about.Footnote 183 Newman and Walsh warn that:
Such practices undermine the ability of clients to act as autonomous decision makers in relation to their case; they are simply being processed without necessarily being able to truly express their wishes about how a case proceeds. As a result, many clients failed to develop rapport with their representative, engendering anxieties that their lawyer did not know them or their case.Footnote 184
The above practices echo Hobbes’ remark that “the value, or worth of a man is, his price.”Footnote 185 KMC can serve as a rejoinder to Hobbes’ claim, regarding the worth of an individual, and can address neo-liberal practices that treat lawyers and clients as commodities with little regard for their autonomy. KMC also involves being cognizant of the client’s values and characteristics. The value of using experiential learning as a vehicle for teaching KMC is due to it being “universally effective as a structure and philosophy of teaching and learning.”Footnote 186 Although Kant’s work predated CLE, his philosophy and theory of pedagogy are relevant for present purposes due to his commitment to experiential learning and moral education.Footnote 187
KMC can enhance CLE at both the local and global levels. Integrating KMC at the local level involves analyzing and interpreting the content of rules, such as the codes of professional conduct, through a KMC lens, which promotes compassion, respect, and highlights one’s moral commitment towards others. In the context of live-client clinics, KMC encourages students to place themselves “in the shoes of others”Footnote 188 and to take an interest in their culture.Footnote 189 This approach is based on a contextualized understanding of the client, which can prevent students and lawyers from viewing clients as “abstract people with predetermined traits.”Footnote 190 Instead, KMC draws attention to the fact that persons are “unique individuals with particular characteristics situated within a real world.”Footnote 191 Thus, when acting for a client, regardless of whether they fall within any of the protected characteristics found in the Equality Act 2010,Footnote 192 KMC requires the student/lawyer to enter into a dialogue with their client in order to “overcome the otherness in the other.”Footnote 193 This holistic approach allows the advisor to engage in a fact finding exercise to determine their client’s values and aims. At the global level, KMC’s cosmopolitan underpinnings create a moral responsibility towards persons in other jurisdictions.Footnote 194 KMC can be used as a framework for transnational collaborationsFootnote 195 between clinics and non-governmental organizations. The pedagogic advantages of transnational collaboration include developing an awareness of injustices in other parts of the world and engaging in the law of other jurisdictions. An example of applying KMC to transnational collaboration is through law reform. There is currently an emerging body of literature which advocates for policy clinics.Footnote 196 KMC can be incorporated into policy clinics due to its commitment to law reform.
KMC, which views organizations as moral communities, can also develop professional legal ethics within a business entity. KMC requires law firms to be mindful of the fact that persons—this includes clients and employees—are ends in themselves and deserving of respect. Consequently, each member in an organization has a moral relationship to others. KMC can, therefore, act as a moral constraint against hierarchal organizational behavior, such as bonuses awarded to the partners only. The significance of a business entity being viewed as a moral community is that it involves democratization of the organization. This entails a reciprocal relationship between those in authority and employees. Consequently, a KMC framework involves critique and endorsement of the rules that govern employees in an organization.
This article has argued that the teaching of professional legal ethics can be enriched by adopting a holistic approach informed by KMC. The juxtaposition of the professional codes of conduct with the suggested KMC model can direct students to possess more self-awareness of their actions and to ensure that client autonomy is not undermined. Respecting client autonomy, under KMC, entails the lawyer ascertaining the client’s values, cultural background, and any other material information relevant to the client. KMC also provides moral duties, namely obligations towards individuals outside one’s immediate community or jurisdiction. This allows students to engage and reflect on global issues such as the social and economic turmoil caused by the Covid-19 pandemic. Thus, KMC provides cosmopolitan obligations to distant suffering and injustices. Although Kantian ethics involves the abstraction of inclinations from one’s moral deliberations, KMC incorporates sentiments, such as sympathy and compassion, because they can foster “cosmopolitan emotions” and increase sensitivity for human suffering.Footnote 197
Beyond legal education, KMC can be applied to legal ethics on three levels. First, law practices can be viewed as moral communities consisting of staff, clients, and other stakeholders, whereby each person in this community has a moral relationship to everyone else.Footnote 198 With regards to duties towards clients, a lawyer who views this moral community as merely a means to achieving their own ends is acting contrary to the second formula. The second level concerns duties owed to the moral community within a law practice’s geographical location and/or jurisdiction. The third level provides a moral justification for lawyers to engage in the provision of pro bono services to clients outside their legal jurisdictions.