Positivism and Legal Ethics Arguments

8/4/2019 Positivism and Legal Ethics Arguments

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POSITIVISM AND LEGAL ETHICS ARGUMENTS

Professional Responsibility

Bill Simon

1. The Pepper Principle: Lawyers should take every reasonably available action to

advance the clients goals unless it is plainly prohibited by law.

a. Three premises:

i. Lawyers owe fidelity to law

ii. Law is strongly differentiated from morals (= Positivism)

iii. Other than i, the lawyer's only important duty is to the client's autonomy.

b. Two critiques: Luban's critique focuses on iii, but we first consider a critique

focused on ii.

2. Positivism

Positivism (for our purposes) is the doctrine that law is strongly differentiated from

morals. How is law differentiated from morals?

a. Law =commands and prohibitions backed by state sanctions (Holmes).

b. Law =norms enacted in accordance with law making procedures recognized as

legitimate (H.L.A. Hart).

3. Critique of Positivism (as used in the Pepper principle):

a. The general claim: Law is not strongly separated from morals.

i. As a descriptive matter, people do not view law this way.

ii. As a normative matter, the ethic that results when we combine the Positivist

definition of law with the professional duty of fidelity to law is unconvincingly narrow.

Reflective professionals could not achieve self-respect or social respect on the basis of such

an ethic.

b. The sanctions ('bad man") perspective:

i. Amibguity: Does the "bad man" recognize a duty to accept sanctions, or is his

only duty to accept the consequences of whatever he can't get away with? (Luban's "low

realism")

ii. Most people (bad and good) see important distinctions between tax-type

sanctions (parking, "efficient breach" of contract) and penalty-type sanctions (e.g.,

punishment for murder).

iii. Consider NLRB, Google cases

c. The procedural perspective

i. Problem: Only the text gets enacted, but our understanding (of both what law

is and what makes it binding) includes the underlying purposes and values.

ii. Compare the fornication and serial killer cases.

4. Luban's critique: Law is not enough

Non-legal morality is a sufficient basis for lawyer decision-making; competing

values should be weighted against client interests.

a. Values shared widely throughout society

b. Lawyer's idiosyncratic values