Skip to main content Accessibility help
×
Home
  • Print publication year: 2014
  • Online publication date: October 2014

3 - The adversary system

Summary

The preceding chapter explored ethical arguments at the microlevel, considering the connection between moral values such as dignity and autonomy and the duties they entail as a matter of professional ethics. This chapter shifts to the macrolevel, but retains a similar structure. Lawyers believe they have duties that are justified in the context of the adversary system of adjudication. The questions to be considered in this chapter are, first, what are those duties in general terms? Second, what is the adversary system, and how is it distinctive? And third, how might one go about justifying the adversary system on two types of moral theory – consequentialist and deontological?

The lawyer’s ethical view of the world

In the wrongful conviction case described in Chapter 1, Wilson’s lawyers maintained all along that they did not do anything wrong by electing not to disclose Wilson’s statement that he, not Logan, had committed the murder for which Logan was serving a lengthy prison term. The lawyers did not believe they were exempt from the demands of ethics. Rather, they believed that they were following a set of ethical principles that was worthy of their respect. Certainly, the law, in the form of the duty of confidentiality within the rules of professional, required them to respect Wilson’s decision not to admit publicly that he had killed the security guard. Beyond that, however, the lawyers believed that they did the right thing more generally, that the law rightly required them to keep Wilson’s secret, and that they should not be subject to criticism in ethical terms for following the law. As one of Wilson’s lawyers put it:

“If I had ratted him out … then I could feel guilty, then I could not live with myself,” he says. “I’m anguished and always have been over the sad injustice of Alton Logan’s conviction. Should I do the right thing by Alton Logan and put my client’s neck in the noose or not? It’s clear where my responsibility lies and my responsibility lies with my client.”

Related content

Powered by UNSILO
Schwartz, Murray, “The Professionalism and Accountability of Lawyers,” California Law Review 66: 669–98 (1978)
Postema, Gerald J., “Moral Responsibility and Professional Ethics,” New York University Law Review 55: 63–89 (1980)
Merryman, John Henry, The Civil Law Tradition (Stanford: Stanford University Press, 2d edn., 1985)
Damaška, Mirjan R., The Faces of Justice and State Authority (New Haven: Yale University Press 1986)
Hazard, Jr. Geoffrey C. and Dondi, Angelo, Legal Ethics: A Comparative Study (Stanford: Stanford University Press 2004)
“Introduction,” in Scheffler, Samuel, ed., Consequentialism and Its Critics (Oxford: Oxford University Press 1988)
Rawls, John, A Theory of Justice (Cambridge, Mass.: Belknap Press 1971), p. 24
Kant, Immanuel, Grounding for the Metaphysics of Morals (Ellington, James W., trans.) (Indianapolis: Hackett 1981)
Foot, Philippa, “The Problem of Abortion and the Doctrine of Double Effect,” in Virtues and Vices (Berkeley: University of California Press 1978)
Thomson, Judith Jarvis, “The Trolley Problem,” Yale Law Journal 94: 1395–1415 (1985)
Reath, Andrews, “Kant’s Moral Philosophy,” in Crisp, Roger, ed., The Oxford Handbook of the History of Ethics (Oxford: Oxford University Press 2013)
Barrett, Edward F., “The Adversary System and the Ethics of Advocacy,” Notre Dame Lawyer 37: 479–88 (1962)
Fuller, Lon L. and Randall, John D., “Professional Responsibility: Report of the Joint Conference,” American Bar Association Journal, 44: pp. 1159–62, 1216–18 (1958)
Kahneman, Daniel, Thinking, Fast and Slow (New York: Farrar, Straus & Giroux 2011)
Luban, David, “The Adversary System Excuse,” in Luban, David, ed., The Good Lawyer: Lawyers’ Roles and Lawyers’ Ethics (Totowa, N.J.: Rowman & Allanheld 1983), p. 96
Rhode, Deborah L., In the Interests of Justice: Reforming the Legal Profession (Oxford: Oxford University Press 2000), pp. 53–54
Hazard, Jr. Geoffrey C., Ethics in the Practice of Law (New Haven: Yale University Press 1978), pp. 122–29
Dare, Tim, The Counsel of Rogues? A Defence of the Standard Conception of the Lawyer’s Role (Farnham: Ashgate 2009), p. 6
Waldron, Jeremy, “Rights,” in Goodin, Robert E., Pettit, Philip, and Pogge, Thomas, eds., A Companion to Contemporary Political Philosophy (Chichester: Wiley-Blackwell, 2d edn., 2012)
Rondel v. Worsley, [1967] 3 All E. R. 993, 999 (H.L.)