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Ethics and the law:

Towards 2010

by Simon Longstaff

A week ago (May 1998), the Chief Justice of New South Wales delivered an address in which he explored the role of law in a changing Australia. One of his themes was that the law acts as a kind of shelter to protect people from some of the less desirable effects of change - especially violent change.

Chief Justice Gleeson's theme evolved from his consideration of a scene in Robert Bolt's play, A Man for All Seasons, in which the great English saint, Thomas More, defends himself against criticism that he is more concerned with legality than justice. The Chief Justice recounts the action as follows:

[o]ne of More's relatives remonstrates with him for taking a stand upon a narrow and technical point of law to resist the will of the king. Part of the reason for Roper's concern was that the ultimate consequence of More's obstinacy would not only be loss of life, but also the forfeiture of his property and, therefore, the impoverishment of his family. The criticism made by Roper is one that is frequently made about lawyers. It was that he was more concerned about legality than about justice.

Roper says to More, 'You would give the devil the benefit of law'. More says, 'Yes, what would you do? Cut a great road through the law to get at the devil?' Roper replies, 'I would cut down every law in England to do that'. More says, 'And when the law was down and the devil turned around on you, where would you hide; the laws being all flat? This country's planted thick with laws from coast to coast, and if you cut them down, do you think you could stand in the winds that would blow through them?'.

Gleeson goes on to agree with Justice Scalia of the Supreme Court of the United States that the winds of change are not always “cleansing and beneficial”. Indeed, they can be violent and destructive. In these circumstances, the law acts as a wind break - offering a kind of protection that we are only likely to value when we lose it.

Reading Chief Justice Gleeson's evocative speech turned my mind to other scenes from great plays and, in particular, the awful storm in which King Lear experiences the horrific reality of changes that he has wrought upon himself (a lesson in itself). In doing so, he loses all the manifest trappings of dignity and along with them, at least part of his mind.

Yet, Lear and his reduced entourage (the remaining part being a wise man playing the fool, a sane man playing the lunatic, and a blind man who can finally see) also come to a better understanding of the shelter offered by law in the midst of tempestuous life. Having become one of the most wretched of his own people, Lear finally realises that the law (as it is administered in practice) may preserve the strict requirements of form without partaking of justice, in substance.

For all his madness, Lear is clear about the distinction. In fact, the remnants of an institutionalised difference is recorded in the play when, in the course of assembling a court to judge the deeds of Goneril and Regan, Lear instructs his companions as follows:

Thou robed man of justice, take thy place. And thou, his yoke-fellow of equity, bench by his side.

It is, for many of us, hard to imagine a time before the fusion of ‘law’ and ‘equity’. Indeed, we are taught to believe that where there is conflict between the more general principles of equity, as applied in the Court of Chancery, and the strict legal rules enshrined in the common law of the King's Bench, equity will prevail. This may be so. However, if a sense of justice does shape the law, why do so many seem to relate to Lear's observation:

Plate sin with gold and the strong lance of justice hurtless breaks; Arm it in rags, a pygmies straw does pierce it.

Let me try to indicate the relevance of all of this for tonight's discussion. Let me state quite clearly that I am not one inclined to support crude, populist attacks against the legal profession. My experience has been that there are many practitioners who are committed to a high ideal in the pursuit of justice. Despite this, I believe that we face a future that will positively require the legal profession, as a whole, to rediscover and develop an understanding of the basic values and principles that underpin the law as a system of justice (and not just a set of rules).

That is, lawyers will have to turn their back on the still powerful doctrine of legal positivism and instead, embrace an ethical framework that can inform our understanding of what constitutes substantive justice. But, what kind of future might require such a result?

An uncertain glimpse of the future

I now want to engage in a very imperfect form of crystal ball gazing. Although not very original, my view of the future will be contested. After all, we are living in a time of profound and rapid change affecting virtually every part of society in which there is plenty of room for disagreement about the shape of the future. In the year 2010 (which, we should note, is very close):

The world will be a significantly more complex place: as technology continues to develop exponentially, so the options facing us will increase. For example, 'ectogenesis' (growing a foetus in an artificial womb) will be technically feasible. Likewise, there will be opportunities to clone mature individuals, genetically engineer 'desirable' traits in humans, patent new forms of life, have property rights in certain genetic patterns, engage in close surveillance of virtually any part of the planet and so on. In these circumstances, it is unlikely that legislators will be able to keep up with the changes. Rules will either be non-existent, inconsistent or inadequate.

The world will be a significantly 'smaller' place:

Again, it will be advances in technology that further 'shrink' the world. By 2010, it will be possible to speak, in English, to a person, say, in China and have that person hear you speak in Mandarin. In turn, instantaneous electronic translation will convert the other person's Mandarin into English. As a result of this, you will be able to consult with anybody, anywhere - providing only that they have access to the technology.

It is possible that developments in communications technology will reveal that people of different races, cultures and religions share more in common than many suppose. Indeed, it is likely that the major difference will come to be recognised as between pre-modern and modern societies.

Jurisdictions will be porous or will, in some cases, effectively disappear:

Electronic commerce, the further development of global organisations operating across global markets and the continuing development of international treaties (UN, OECD, WTO, etc.) will further erode certainty about which, if any, jurisdiction should apply. Indeed, it will become increasingly difficult to say either where events occur or the responsible entities reside. Moves to develop an international framework of laws (and courts etc) will lag well behind the facts on the ground. In the meantime, the rich and powerful nations will attempt to ensure that they dominate the agenda.

The major institutions of society will continue to enjoy a low level of trust:

In which there is broad public cynicism about the motives and functions of formal institutions such as government, the professions, business, the churches and so on.

Various communities will be reviewing the various informal 'licences to operate' enjoyed by government, business and the professions:

There is nothing sacred about current social arrangements. Various privileges accorded by society (such as the limited liability enjoyed by investors) may be amended or removed if the community comes to believe that arrangements such as these are not ultimately leading to an increase in the stock of ‘common good’. Limited privileges still enjoyed by the legal profession may be removed - with the practice of law being treated as if just another business.

There will be no consensus about what counts as a good society:

It will have been about forty years since a majority of Australians supported (or even recognised) a largely unarticulated understanding of what a ‘good’ society might look like. With luck, this period of uncertainty will be seized as an unparalleled opportunity to move beyond the unthinking conventions of the past. This is not to suggest that the lessons of the past be rejected. However, if they are to be retained, then it should only be because they are considered vital and embraced anew.

A non-Western power is likely to be a dominant influence in the region:

Most of Australia's history, since European settlement, has passed in a region where either Britain or America have been the dominant powers. It is extremely likely that China will assume the mantle of leadership, in this region, early on in the next century. There is no reason to assume that the Chinese legal system will have grown to be more like that, in Australia, during this period.

Each, or any, of the features briefly outlined above should provide a significant challenge to the legal profession. At one level, there will be a need to review the ethical principles that govern the conduct of lawyers qua members of the profession. For example, would the 'cab rank' rule apply if the military junta, in Myanmar, were to seek the advice of Australian counsel when suing an NGO, in an international tribunal, for interfering in the sale of a timber concession (covering lands currently inhabited by tribal people) to a Hong Kong based multinational with an Australian CEO? Which rules of professional conduct should apply when an Australian barrister is running a case in Brunei (or when a Shanghai lawyer advises an Australian company) - the Australian or local variety?

However, as I indicated at the outset, I believe that there are more fundamental ethical questions to be addressed. In the circumstances, outlined above, it is unrealistic to expect that an exclusively rules-based approach to law can operate. This will be especially so if lawyers approach their task in too narrow a fashion - preferring only to examine the letter of the law and proceed accordingly.

Many people will be looking for some semblance of certainty in a world of change. Legislators and lawyers may be tempted to provide the desired illusion. However, I do not believe that the image of certainty can be sustained - especially if it depends on the consistent application of rules that lag behind a rapidly changing world of experience, and where there is no common acceptance of what is common about the ‘common law’.

At the same time, we need to recognise that the future will include its fair share of disputes, theft, acts of violence and so on. If lawyers cannot devise a response that aids in the proper resolution of these issues, then I fear that the perennial solution of 'taking the law into one's own hands' will be assumed by many.

Now, if law (as a set of rules and precedents) is liable to fail, how can lawyers be expected to fulfil their traditional role in the resolution of disputes and the administration of justice? My only response is to suggest that lawyers will, without exception, have to re-discover or rejuvenate (and/or re-negotiate) some basic principles of justice (much like the old principles of equity) that can provide a basic philosophical (and ethical) framework to be applied in cases where the existing framework is found to be unsuitable or unserviceable.

Let me be clear, I am not wanting to suggest that hundreds of years of legal history be discarded. I am not suggesting that the common law and statutes be abandoned. However, I do think that we have to recognise that the world is not exclusively populated by people who share these traditions. Furthermore, we need to be thinking now about the ways in which we are going to develop a shared set of concepts that will allow for sensible discussion when legal issues have to be decided across or in the interstices of different legal systems.

Chief Justice Gleeson observed, last week, that:

It would be a paradox if our modern, changing, society were to come to the view that the common law actually had something to teach it; that some of its values are really expressions of basic decency; and that to abandon them would expose us all to serious risk.

Yet, how many lawyers truly understand, let alone agree about, the basic values on which the common law is based? How many could apply them to new circumstances, or engage in debate about them with people from different backgrounds?

I fear that the number is too few and I do not believe that the future will allow this level of understanding to be the monopoly of judges who, one might assume, have a certain capacity for this kind of thinking. However, I believe that such issues will eventually become a routine concern of many practising lawyers as the average practitioner will have to engage in ethical debate about how basic values and principles should be applied in order to secure a just outcome.

It is not just the likelihood of a heightened pattern of engagement with different systems that suggests the need for a broader understanding of ethics within the legal profession. Domestic concerns would tend to suggest the desirability of a similar outcome. Although their judgement may be ill-informed and unfair; many people believe that the legal profession has failed to serve society rather than itself.

Part of this perception is reflected in the belief that there is one law for the rich and another for the poor - and that the legal profession either condones or is indifferent to this state of affairs. Chief Justice Gleeson is one of many who recognise that:

... the benefits of the rule of law are not evenly distributed, and that there are individuals and groups who receive less of its shelter and protection than others.

Despite an obvious air of cynicism, I believe that the community desperately wants lawyers to be the truly noble profession that it professes to be. That is, it looks to lawyers to take a leading role - not just in administering the system of justice - but also, in speaking out against what appear to be unjust laws, in actively working to ensure that the shelter of the law is available to all, and so on.

The way ahead

This outcome will not be achieved merely by wishing it to be so. Rather, we need to accept that there is some truth in the cliche that the truth can be made and not just discovered. Bearing this in mind, I would hope that the legal profession would initiate a number of processes designed better to equip its members for the role that they will have to play. Some of the steps that the profession might consider taking include:

• Actively encouraging and supporting measures to broaden the ethical component of university education and professional training for lawyers. This would, for example, include a requirement that courses in jurisprudence be compulsory,
• The profession supporting a public debate about rival conceptions of justice, in Australia and abroad,
• The profession encouraging the development of a legislative template that records the basic values and principles that are supposed to be captured in law, and
• The profession playing an active role in providing a critique of new and existing laws, and the system of justice – with a view to its continual improvement

In other words, the challenge for the next century is to combine the insights of More and Lear by developing lawyers who care about justice as much as they care about law. These people will not only possess a high level of skills in reasoning, argument and advocacy. They will also possess discernment and moral courage.

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