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

4 - The nature of law and why it matters

Summary

Law, morality, and legal ethics

Lawyers have obligations, stated in officially promulgated codes of conduct and other authoritative sources of law, to do things such as keep their clients’ secrets and be effective advocates for their clients’ positions. It is therefore quite tempting to try to justify the conduct of lawyers by referring to the law, for example.: “The law requires lawyers not to disclose confidential information.” Think about it for a minute, though. The law may create obligations, but it may not follow that it creates moral obligations. Suppose someone says, of the lawyer representing the real killer, Wilson, in the wrongful conviction case from Chapter 1, “You did wrong morally by keeping Wilson’s secret.” it is not necessarily an adequate answer for the lawyer to say, “I had a legal obligation to do so.” There is potentially a gap between legal and moral obligation. Perhaps there is a way across that gap (another bridge!), but it has to be made clear whether, and under what circumstances, a legal obligation makes any difference in the domain of morality.

In an article that was somewhat scandalous when it was first published in the Harvard Business Review, Albert Carr, a former advisor to US President Harry Truman, heaped scorn on those who argued that businesspeople ought to be guided by the standards of ordinary morality (which Carr identified as the morality taught in religious traditions). Instead, Carr argued, business ought to be understood as a game, like poker, and the ethical norms of business ought to be only to follow the rules of the game. As long as some action is not illegal, it is ethical as long as it complies with the rules of the game, and the game of business, as it turns out, permits a variety of seeming wrongs, including industrial espionage, deceptive labeling of food products, firing older workers to reduce pension costs, indifference by auto manufacturers to the safety of their products, and the substitution of inexpensive, possibly dangerous ingredients in health care products.

Carr, Albert Z., “Is Business Bluffing Ethical?,” Harvard Business Review (Jan.–Feb. 1968), p. 143–53
Zabella v. Pakel, 242 F.2d 452 (7th Cir. 1957)
Simon, William H., The Practice of Justice (Cambridge, Mass.: Harvard University Press 1998), p. 37
Kramer, Matthew H., Objectivity and the Rule of Law (Cambridge: Cambridge University Press 2007), p. 143
Austin, John, The Province of Jurisprudence Determined (London: J. Murray 1832)
Hart, H. L. A., The Concept of Law (Oxford: Oxford University Press, 2d edn., 1994)
Green, Leslie, “Law and Obligations,” in Coleman, Jules and Shapiro, Scott, eds., The Oxford Handbook of Jurisprudence & Philosophy of Law (Oxford: Oxford University Press 2002)
Lyons, David, Ethics and the Rule of Law (Cambridge: Cambridge University Press 1984), pp. 70–71
Schauer, Frederick, The Force of Law (manuscript, forthcoming 2014), § 3.3
Coleman, Jules, “Negative and Positive Positivism,” in Cohen, Marshall, ed., Ronald Dworkin and Contemporary Jurisprudence (Totowa, N.J.: Rowman & Allanheld 1983), p. 31
Shapiro, Scott J., Legality (Cambridge, Mass.: Harvard University Press 2011), pp. 269–70
Hart, H. L. A., “Positivism and the Separation of Law and Morals,” Harvard Law Review 71: 593–629 (1958)
Fuller, Lon L., “Positivism and Fidelity to Law – A Reply to Professor Hart,” Harvard Law Review 71: 630–72 (1958)
Fuller, Lon L., The Morality of Law (New Haven: Yale University Press, 2d ed., 1964)
Baumgarth, William P. and Regan, Richard J., eds., Aquinas on Law, Morality, and Politics (Indianapolis: Hackett, 2d edn., 2002)
Finnis, John, Natural Law and Natural Rights (Oxford: Clarendon Press 1980)
Nussbaum, Martha C., Sex and Social Justice (Oxford: Oxford University Press, 1999), pp. 41–42
Murphy, Mark C., Natural Law in Jurisprudence and Politics (Cambridge: Cambridge University Press 2006)
Cover, Robert M., Justice Accused (New Haven: Yale University Press 1975)
Alexy, Robert, The Argument from Injustice (Oxford: Oxford University Press, Paulson, Bonnie Litschewski and Paulson, Stanley L., trans., 2002)
Marmor, Andrei, Philosophy of Law (Princeton, N.J.: Princeton University Press 2011), p. 114
Luban, David, “Natural Law as Professional Ethics: A Reading of Fuller,” in Legal Ethics and Human Dignity (Cambridge: Cambridge University Press 2007), p. 110
Dworkin, Ronald, “The Model of Rules I,” in Taking Rights Seriously (Cambridge, Mass.: Harvard University Press 1977)
Dworkin, Ronald, Law’s Empire (Cambridge, Mass.: Harvard University Press 1986), p. 19
Shapiro, Scott J., “The ‘Hart-Dworkin’ Debate: A Short Guide for the Perplexed,” in Ripstein, Arthur, ed., Ronald Dworkin (Cambridge: Cambridge University Press 2007)
Fried, Charles, Contract as Promise (Cambridge, Mass.: Harvard University Press 1981)