Questioning the Morality of the Law: A Necessity for Lawyers?
by Lisa van Dord, 2022 Law Fellow
Since Montesquieu introduced the idea of the trias politica in 1748,1 many legislators have consciously adopted checks and balances as defining characteristics of their legal systems. These measures serve to prevent governments from abusing the power they have over their citizens, to ensure the law is applied equally to everyone. The legal system, therefore, has devised a set of actors that are supposed to keep each other in check. As a result, various offices must be created to balance each other, bringing competing actors into being intended to neutralize one another’s incentives and ambitions, thereby poising the powers of the state vis-à-vis its citizens. While this may not seem like an inherently moral undertaking, it is. We must recognize that.
Each of the actors within this system—be they attorneys, judges, members of the legislature, or members of the executive branch—must serve in their role to allow the system to function. These roles cannot be separated from the individual moral compasses of those who fill them. What I call “role morality,” or what your role in the system requires of you, is often distinct from the personal moral system of an individual actor. Role morality, as such, is required for the functioning of the system. And yet, it detaches your own personal ethical compass from the role you take on because morality finds social fulfillment elsewhere.
During FASPE, we discussed several instances in which fellows felt constrained from doing what they thought right by their role in the legal system. I would like to concentrate on just this conflict— a case in which an attorney personally disagrees with specific applicable laws but is still supposed to apply them. How should a lawyer behave in such an instance?
Assuming we are talking about a democratic legal system shaped to uphold the rule of law, a country's laws are made by the legislature. The legislature often consists of individuals elected by the citizens to represent them. Through this representation, the aggregate morality of its citizens is enshrined in the country’s laws. In this sense, there is some connection, even if tenuous, between a nation’s laws and the broad moral principles of its citizens.
Questioning the law and how it applies in practice may seem to be a natural aspect of the role of an attorney. By virtue of their profession, attorneys engage with the laws and the way these laws work in practice. Who better to think about the morality of those laws than those are working with them every day? When looking at this issue from the perspective of role morality, however, this outlook becomes problematic.
The role of an attorney is to advise natural and legal persons on the law and to represent them in various proceedings. As such, it is the role of an attorney to be partial and to act in their client's best interest. It is not to for them to decide how or whether the law should apply: that is for the judge to decide. Allowing attorneys to call into question applicable laws to the extent that attorneys are in effect deciding which laws should apply (or not apply) paves the way for their unchecked power. The role of an attorney allows for far-reaching scrutiny of the morality of laws. Full rejection, absent judicial power, however, makes each attorney an arbiter of the law. In my view, the role of an attorney cannot work with public and evident disregard for specific laws. What would happen to all the other laws? Does an attorney just get to decide which laws do apply and which don't—solely on the basis of their own moral judgment? With everyone deciding on morality and legality, no one is.
In a perfect world, in which each attorney is a perfect moral actor, this might not be a problem. But given that attorneys may be wrong in their assessment of the immorality of a certain law, this becomes an issue. Especially in today's world, which is filled with “cultural bubbles” and echo chambers, the risk of attorneys feeling righteous in their judgment of the law has grown more immediate. What would happen then? Who has given the attorney the status to decide which laws should and should not apply? As such, the broad disavowal of certain laws by attorneys significantly harms the credibility and legitimacy of the entire legal system. Each then decides for themselves. If attorneys are openly rejecting their role in the legal system, the public receives a message that attorneys do not believe in the legislature and judiciary to do their job, harming faith in the system as a whole.
At the same time, this position has its flaws. As an attorney, I believe in the system that I am playing a role in. I believe that I can stay within my role morality while also acting morally on a personal level by questioning laws in court, so long as I leave it up to the judicial system to decide publicly on my being correct or incorrect. I believe in the integrity of the judiciary, that the system of representation (though it may be flawed) is working and the laws that are passed reflect broadly shared sentiments in society.
The analysis becomes more contentious when the legal system itself has become corrupted in some way. If you cannot count on the system to safeguard morality, what do you do? During the FASPE trip, we discussed the vulnerabilities of the legal system and the dangers of relying on its functioning, if, for example, it began pursuing evil ends. In those systems, role morality may serve as a tool for personal deception, allowing individuals to escape responsibility for a system that they form an integral part of, a system they uphold. Would, then, playing my role, counting on the system to land on the right decision rather than relying on my (faulty) self to decide on the morality of certain laws, change me into a perpetrator? Counting on the system is thus no solution to this problem.
The solution, perhaps, lies between the two extremes—neither fully relying on yourself, nor relying fully on the system, acknowledging your own, as well as the system's, limitations. Scrutinizing the law you are applying, analyzing the functioning of the system you are in every day—questioning whether you agree with the outcomes of cases you are handling and whether you trust your legal system to do right—these must form the foundation of ethical self-interrogation for attorneys. If all attorneys, judges, legislators, and executives would trust themselves a bit less and question more, perhaps even feel a bit less righteous, we might be able to trust the system to do right in the end.
Lisa van Dord was a 2022 FASPE Law Fellow. She is an associate at De Brauw Blackstone Westbroek.
- C. Montesquieu, 1748, The Spirit of the Laws; in: A. Cohler, C. Miller, and H. Stone (eds.), Cambridge: Cambridge University Press, 1989.