Professional Ethics and Personal Integrity

Professional Ethics and Personal Integrity

Edited by

Tim Dare and W. Bradley Wendel

Professional Ethics and Personal Integrity, Edited by Tim Dare and W. Bradley Wendel This book first published 2010 Cambridge Scholars Publishing 12 Back Chapman Street, Newcastle upon Tyne, NE6 2XX, UK

British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library

Copyright 2010 by Tim Dare and W. Bradley Wendel and contributors All rights for this book reserved. No part of this book may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the copyright owner. ISBN (10): 1-4438-2128-4, ISBN (13): 978-1-4438-2128-5

TABLE OF CONTENTS

Abstracts.................................................................................................... vii The Ethics of Judicial Method..................................................................... 1 Tom Campbell Impartiality: Balancing Personal and Professional Integrity in Judicial Decision-making........................................................................................ 21 Sarah M. R. Cravens Damned Lying Politicians: Integrity and Truth in Politics ........................ 44 Damian Cox and Michael Levine Professional Interpretation and Judgment, and the Integrity of Lawyers .. 68 Dean Cocking and Justin Oakley Integrity and Zeal ...................................................................................... 79 Gregory J. Cooper Detachment, Distance, and Integrity ....................................................... 100 Tim Dare Ethical Lawyering and the Possibility of Integrity .................................. 125 Sharon Dolovich Personal Integrity and Professional Role in Lawyering .......................... 186 William H. Simon Can Virtue Ethics Provide Legal Ethics? ................................................ 201 Christine Swanton Why I am a Hired Gun and a Paternalist ................................................. 217 Duncan Webb

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Table of Contents

Personal Integrity and the Conflict Between Ordinary and Institutional Values...................................................................................................... 238 W. Bradley Wendel Bibliography............................................................................................ 270 Contributors............................................................................................. 286 Index........................................................................................................ 289

ABSTRACTS

This collection draws together a set of papers which explore the notion of integrity and its implications for a range of professions. Two papers, those by Tom Campbell and Sarah Cravens are original contributions to judicial ethics, a neglected topic in professional ethics in general and legal ethics in particular. Cravens explores the implications of the demand for impartiality in the judicial role. A good judge is one who exhibits excellence at separating personal moral beliefs from decisions about what the law requires in a given case. Cravens uses a set of hypotheticals to illustrate how this excellence in separating personal beliefs from decisions about what the law requires could be better supported in the rules and practices of judging, reaching what might at first seem to be counter-intuitive conclusions about judicial recusals (that they are appropriate only very rarely); about the appropriate process for the selection of judges (that there should be no popular election of judges); and about current limitations on judicial speech (that current restrictions on speech should be loosened considerably). Campbell takes a more broadly jurisprudential approach. He presents the theory of normative legal positivism and its implications for legal reasoning, and goes on to defend the idea that the choice between practical theories of legal interpretation involves ethical questions for judiciaries and indeed for all legal practitioners. He defends the idea, in other words, that judges might be subject to a professional ethical obligation to follow a particular positivist method of adjudication. Campbell also addresses the question how an ethics of legal interpretation can be formulated and enforced, considering the effectiveness of existing methods of monitoring judicial method, most obviously the appeals process, before asking whether traditional strategies used to promote occupational ethics ethical audits, discipline procedures, compulsory training and education, and regulation have a place in the promotion of judicial ethics, understood here as compliance with the interpretative method he has defended. Damian Cox and Michael Levine also address an important but largely ignored topic, namely the relation between a respect for truth and the integrity of professional politicians, whose professional effectiveness may depend upon an aptitude and willingness to engage in mendacity or truth obfuscation. They have two broad aims. First they set out to

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Abstracts

identify the extent to which professional integrity in politics is compatible with various truth obfuscating tactics, and to defend the claim that while the relation between truth and integrity in politics is not straightforward, nevertheless there is a distinction between the honest and the mendacious politician. Second, they examine the causes of mendacity in politics, asking why it is hard to find consistently honest politicians, and why citizens are so vulnerable or indifferent to the lies of politicians. The remaining papers in the collection address the tension between personal and professional integrity in legal practice. Justin Oakley and Dean Cocking take issue with those who argue that the apparent tension between the demands of a lawyers professional role and ordinary morality can, at least in part, be addressed by a better appreciation of the significance of the lawyers role, that such an appreciation allows lawyers to reconcile their role obligations with broadbased moral standards, and so helps preserve a lawyer's personal integrity. Drawing on the phenomenon of post-retirement shame, they argue that lawyers who act on defensible role demands can nonetheless be acting wrongly in particular cases, and that such reconciliation strategies can promote a misplaced confidence in the conventional role demands of criminal defence lawyers, undermining rather than preserving a lawyer's personal integrity in certain cases. They go on to argue for the advantages of a virtue ethics approach to these issue, and to comment on the notion of professional detachment. Greg Cooper sets out to provide an overview of the legal ethics literature, an overview which both functions as a map of the territory and which helps to identify answers to some of the problems encountered in that territory. He focuses on the tension between personal integrity and the lawyers duty to zealously pursue their clients ends: the problems of integrity and zeal, he writes, are the twin headaches for legal ethics. Drawing on work by Bernard Williams and Thomas Nagel, Cooper locates the obligations of the lawyers role within the larger arena of the plural and conflicting demands of practical deliberation. Following Williams, he rejects the hegemony of impartial morality. Following Nagel, he argues that ordinary moral reasons (both consequentialist and deontological) compete for deliberative priority with both the special obligations that attach to the various roles we come to occupy and with the more particular projects that give shape to an individual life. From this perspective it can be seen that the problems of integrity and zeal pull in opposite directions. A number of prominent approaches to legal ethics can be distinguished in terms of the manner in which they respond to this tension.

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Tim Dare examines some recent accounts of personal integrity, which ground integrity in autonomy, integration and identity, as part of a defence of the idea that what is actually central to integrity is a certain kind of commitment to critical reflection and a readiness to embrace its implications. It is this commitment, he suggests, which actually explains the appeal of the alternative accounts. Understanding integrity this way, he suggests, allows us to reconcile integrity and the authority of role demands. More specifically, it allows us to see how lawyers might be subject to strongly differentiated role obligations without sacrificing their integrity, for such reflection should lead them to acknowledge the authority of the obligations of their professional roles. Sharon Dolovich argues that any complete account of legal ethics must include a theory of moral character, and that, since the character traits central to ethical lawyers depend upon the institutional structure of legal practice, widespread moral renewal of the legal profession requires focus upon structural reform, and in particular upon questioning of the centrality of the profit motive to modern legal practice. Dolovich develops her arguments by focussing on the work of Deborah Rhode, whose contextual approach, while not itself including an account of moral character, implicitly requires traits of the sort Dolovich thinks essential to ethical practice. William Simon observes that much of the legal ethics literature uses questions of role morality to frame the discussion questions that arise from the gulf between ordinary morality and the lawyer's professional morality. However this framework, he argues, courts two dangers. One is a tendency to treat personal virtue as asocial and inherently threatened by social demands. The other is the assumption that some of the more controversial positions of the bar's dominant doctrines and ideologies are entailed by the basic contours of the lawyer role. In response to the first tendency, Simon appeals to the concept of "meaningful work" in romantic social thought to suggest that social role is as much a pre-requisite for as a threat to virtue. In response to the second, he suggests that many of the positions that are often seen to create a gulf between ordinary morality and the lawyer role are highly contested and contestable within the professional culture. An implication of the argument is that the underlying theoretical issues in legal ethics are issues of jurisprudence more than role morality, turning on questions internal to the legal system, such as the relation of law and morals, the significance of formality, and the identity of organizations. Christine Swanton defends virtue ethics against objections that the approach cannot provide a framework for legal ethics. The objections can

Abstracts

be seen to have the form of a dilemma: either virtue ethics violates conditions of adequacy (such as those proposed by Tim Dare) for a legal ethics, or, if it meets objections that it cannot provide a framework for legal ethics, it is no longer recognizable as a virtue ethics. This paper first answers the Dare objections by elaborating a distinction between prototype and (role) differentiated virtue, illustrating the distinction with the virtue of integrity. Second, it addresses the second horn of the dilemma by considering the nature of virtue ethics. Duncan Webb sets out to reconcile two apparently opposing extremes in the legal ethics literaturehired gun models (advocating lawyer neutrality and client autonomy) and paternalistic models (advocating value based intervention at the expense of client autonomy). Attention to the realities of legal practice, Webb argues, allows us to see that lawyers can both give client autonomy (properly understood) a central place in the practice of law, and accept that there will be situations where the lawyer must take actions which have a significant value component and profoundly affect the rights of the client. A central empirical claim underlying Webbs approach is that many clients are not able to understand the legal context of their situation adequately to ensure that the decisions they make in respect of the law will in fact assist in achieving the ends which they intend. Compounding this impediment to autonomy is the fact that it is inevitable that lawyers will frame information and advice in a way which is tilted in favour of a particular approach. Webbs paper suggests that a robust model of lawyering should face up to the impossibility of perfect client comprehension, and the reality of lawyer bias and provide an approach based on principles which both respect client autonomy and recognise the active role that the lawyer has to play shaping client decisions. Brad Wendel argues that the insistence that ethical reasoning proceed from the objective or impartial point of viewwithout regard for the idiosyncrasies of the agents psychology or interestscan make it difficult to account for why objective values ought to matter to any given person. In response, some ethical theorists have emphasized that the reasons upon which agents act are reasons for them, not reasons in some abstract sense. As Thomas Nagel puts it, if we abstract away from the perspective of the agent, we have to abandon the idea of acting for reasons. Building on this line of argument, Christine Korsgaard gives an account of the normative force of ethics that makes use of the concept of reflective endorsement from the point of view of an agents practical identity. Practical identity is a description under which you value yourself . . . under which you find your life to be worth living and your actions to be worth undertaking,

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which we might call a notion of integrity. Its significance for ethics is that the value of integrity provides a reason for action that is internal to the process of moral reasoning, thus bridging the is/ought gap. From here, Wendel asks whether there are things that one ought to value, whether ones practical identity ought to be aimed at becoming a certain kind of person? In the context of professional ethics, he considers the role of professional identity in ethical deliberation. An agents conception of herself as a lawyer may be an important aspect of her practical identity, but it may be in tension with other commitments that she has as a person, outside her professional role. Finally, he considers the possibility that conflicts between personal and professional aspects of practical identity may give rise to the moral remainders famously described by Bernard Williams.

THE ETHICS OF JUDICIAL METHOD TOM CAMPBELL

Overview
This chapter brings together work in legal theory, in particular the theory of ethical (or normative) legal positivism, and issues in legal ethics, in particular the nature and scope of judicial ethics. It is commonplace to say there is a judicial duty to adjudicate cases according to law. This refers, at least in part, to a duty to follow the relevant adjectival law according to the procedures laid down for law and in law. However, the telos of such due process is the identification and application of the relevant substantive law to the facts, as they are found to be by a court following the appropriate legal procedures with good faith and professional competence. Arguably, it is this duty to make decisions according to law that is the core judicial contribution to the rule of law and the grounds of most other judicial duties, such as impartiality, attentiveness and the avoidance of conflicts of interest. This underlying rationale for this construction of judicial ethics is threatened by radical disagreement as to what it means to make decisions in accordance with law, and the methods by which this meaning is institutionalised. Without consensus on these matters, there can be no basis for criticising adjudicative conduct, provided that it can be presented as a manifestation of a good faith endeavour to put into practice some conception or other of in accordance with law. If there are no acceptable grounds on which judges (and others) can reach justified agreement as to the content and application of doing justice in accordance with law, then no judge can properly be held accountable for failure to conform to this set of norms, the core foundation of judicial ethics collapses, and the basis for higher courts overruling the decisions of lower course is compromised. In the context of this analysis, the chapter explores, first, the extent to which adopting and utilising a particular legal methodology is subject to normative criteria and, second, whether following an agreed methodology of adjudication should be regarded as a matter of professional judicial ethics. After presenting a prima facie case for an affirmative answer to the

The Ethics of Judicial Method

above questions, it goes on to ask, but not to answer, a third question, as to the extent to which the mechanisms and institutions that are generally utilised to establish, encourage and enforce occupational ethics (such as ethical audits, complaints procedures, discipline procedures, and compulsory continuing education) should be brought to bear in order to promote an ethical approach to judicial method. The tentative suggestion is that the moral and political significance of adopting both a preferred rule of recognition and particular method of legal interpretation should be more fully recognised and more fully incorporated within a system of judicial ethics, and ethical accountability in this sphere should be enhanced through more transparent mechanisms of meta-regulation.1

Justice according to law

The judicial duty to do justice according to law is entrenched in codes of judicial ethics and judicial oaths of office. Interesting conceptual questions could be raised about whether this is a legal duty despite its unenforceability, but it is certainly a moral and perhaps an ethical duty, and one to which judges are, or appear to be, committed as constitutive part of their social role. So much is not in doubt. Within this parameter of consensus there is, however, little agreement as to how the identification and interpretation of relevant legal rules should be undertaken, and what sort of criteria should be brought to bear in evaluating different approaches to these central aspects of judicial method. And, if these issues of judicial method, and the different conceptions of the rule of law in which they are embedded, are to be determined on moral grounds (and on empirical and philosophical considerations only to the extent that these are relevant to those moral grounds), who is it that should make these determinations? There is rather more agreement that the adoption and utilisation of a particular method of judicial reasoning (whether or not that is a moral question) involves a collective commitment in that it is something that should not be left to the discretion of the individual judicial officer but function as a set of agreed methods and rules for the judicial branch as a whole. The collective approach is what makes it, in my terminology, a matter of professional ethics, rather than personal morality. I take the
1

Meta-regulation is a method of governance that combine a measure of external for the implementation of a system of self-regulation. It involves monitoring and to some extent controlling the operations of the processes of self-regulation as distinct from enforcing substantive standards that limit self-regulation, a form of governance commonly referred to as co-regulation. See Parker 1999.

Tom Campbell

choice of judicial method to be an ethical question if (1) it is fundamentally a moral question and (2) the occupation group in question (in this case judges) ought (morally) to have an agreed set of standards to which their members have a moral obligation to conform and which is supported by an ethical integrity system within the profession and subject to external oversight. However, on my, admittedly limited, sampling of the literature, once the reader goes beyond the introductory warm up paragraphs of authorised writing on judicial ethics, there is little direct reference of judicial method as a significant ingredient in judicial codes of conduct, although it may feature elsewhere as an assumed part of judicial education which concerns applying the law, and making decisions and giving reasons for decisions.2 Judicial ethics, it seems, requires that there be no hint of bribery or any conflicts of interest that cast doubt on the impartiality of the court with respect to the parties involved. A judge should not decide a case in accordance with who pays her most, her prospects of promotion, her hopes of future employment, her political affiliations or her personal preferences for one litigant over another. There are also requirements that she should be alert, courteous, attentive to the arguments presented, and so on. Such virtues give us a picture of idealised procedural justice in an impartial hearing, but not much idea of the basis on which the decisions in this impartial settling should be made. It is understood that tossing a coin to select or interpret a law, while in itself impartial, will not suffice. Such decisions should be, in some sense of other, in accordance with law, but there is little agreement as to what that means in concrete terms beyond taking notice, in some way or another, of relevant law. Putting it dramatically, according to law could encompass anything from a strict adherence to the most specific recent legislation and case law on the matter, to an application of general moralcum-legal principles thought to underlie the system in question. It is the nature of this disagreement about legal method, on which I raise the question: are these moral questions or technical matters of an amoral kind? The extent of disagreement as to proper judicial method is apparent in the voluminous jurisprudential literature on these questions.3 Behind the familiar terminology of literalism and liberalism, originalism and purposive construction in judicial method, the emphasis on rules as against principles, and the debate about whether legal principles can or
See National Judicial College of Australia: http://njca.anu.edu.au/; Thomas (1996), and Australasian Institute of Judicial Administration (2007) 3 For examples, see MacCormick 1978, Marmor 1995, Corcoran and Bottomley (2005) and Goldsworthy (2007).
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The Ethics of Judicial Method

should be moral principles, there lies an astonishing variety of judicial practice that is to some extent held in check by the appellate process in which there is frequent reference to mistakes of law, but usually little sign of coherence and transparency as to the criteria for labeling a decision mistaken. This chapter cannot traverse this vast literature but presents the outline of a case for accepting the moral and ethical normativity of the issue at stake by dipping into the debate concerning the legal theory of ethical positivism.4 Ethical positivism is an atypical form of legal positivism which builds on three ingredients, drawing from the work of Joseph Raz (1979), Frederick Schauer (1991), and Jeremy Waldron (1999), although in ways that each may wish to disown. First, ethical positivism accepts the Razian functionalist view that, sociologically, law is about providing authoritative guidance for conduct in important areas of social interaction, which it takes to be as much a moral affirmation of the utility of law as a politically neutral analysis of law, in the more wide ranging sense of mandatory general rules which can be used in the service of all sorts of much less attractive ends. Second, following Schauer, ethical legal positivism holds, that this authoritative guidance function requires rules that are specific enough to provide practical guidance and settle authoritatively the disagreements that arise within social interactions and facilitate ongoing social cooperation within the different spheres of social life. Formally bad laws, which are unclear, inconsistent and insufficiently general, do not fulfill these functions well. Finally, ethical legal positivism is linked to democratic theory in that it endorses the Waldronian theme that, inter alia, politics is about settling disagreements about what these rules should be, supporting, for a variety of moral reasons, a democratic system in which, as far as is practicable, elected representatives determine the rules and a separate branches of government administer and settle controversies as to their application. To categorise this approach in terms of current philosophy of law paradigms, the theory of ethical positivism is Dworkinian in that it espouses a model of judicial method on moral grounds, sharing the view (Dworkin 1986) that the standard competing conceptualisations of law are not philosophically autonomous. However, it is even more committedly anti-Dworkinian in that the moral grounds adopted require a strict moral commitment to the production and application of rules that can be understood and applied (contra Dworkin) without bringing in moral judgments to the adjudicative process except indirectly in the form of a
4

Campbell 1996.

Tom Campbell

commitment to the technical goal of the accurate implementation of the authorised rules. Taking ethical legal positivism as an illustrative theory, we can see that there are two different questions involved here: (1) what is the correct theory of judicial method, or, more particularly whether we ought we to adhere to ethical positivism, (2) whether the correctness or incorrectness of an interpretive method is a moral (and also, perhaps, ethical) as opposed to a conceptual or empirical question. Further, these types of question address two relatively distinct phases of judicial process, the first of which seeks to identify the relevant legal rules to be applied to the controversy in question and the second of which concerns how to understand these rules in relation to the particular circumstances of the case. The first is a matter of legal validity; the second is a matter of legal interpretation.

Choosing a Rule of Recognition

The concept of legal validity comes into play in the analysis of what is involved in identifying the laws that judges ought to apply. In the positivist tradition, from which the term emerged, validity point to the authoritative criteria that determine what is and what is not the law in a particular jurisdiction, that is the criteria that judges ought to use in their adjudicative determinations of the cases that come before them. According to H. L. A. Hart, for instance, the concept of validity is grounded in the social fact that judges deploy a rule of recognition to find and establish the legal or non-legal status of putative rules and principles. The model here is of a rule that lists the criteria that are either necessary or sufficient for being deemed to be valid law, that is judged actually to be rather than just aspire to be law (Hart 1994). For Hart, validity is distinguished from desirability, in that meeting the criteria of validity determines whether something is law rather than whether it is good or bad law. On some views, including Harts own, as expressed in the Postscript of the 2nd edition of The Concept of Law (Hart 1994), desirability can in fact feature in the criteria of a particular rule of recognition,5 but, because it need not do so, the idea of validity is distinguishable from that of desirability as such. This has come to be known as the separability thesis: the contention that law and morality are not necessarily connected. Indeed, the point of the language of validity is precisely to be able to make the distinction between formal and material
What Hart called soft legal positivism, now more generally referred to as inclusive legal positivism (Waluchow 1994).
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The Ethics of Judicial Method

standards, and so between law and good law. The parallel is with logic, where the validity of an argument is a matter of its form and the interrelations of its parts, while the truth of its components and its conclusions is another matter. There are valid arguments that lead to erroneous conclusions, as when one or more of the premises are factually wrong. Similarly, there are valid laws of dubious content, as when their application leads to undesirable outcomes. The rule of recognition is a secondary rule, used to identify or validate those (primary) rules that apply to ordinary non-legal conduct. The rule of recognition is a rule about rules, and makes sense only in the context of its role in a system in which it has a gate-keeping function for excluding or admitting primary rules. It follows, as Hart points out, that a rule of recognition cannot itself be valid, at least not as a rule of the system of which it is the gate-keeper. In this respect, it has the status of a primary rule, applying, in this case, directly to judicial conduct, by laying down what it that judges ought to take into account when determining what is and what is not law in a jurisdiction. But, unlike other primary rules, it cannot itself become law through the operation of a rule of recognition. It must always remain a non-legal rule with respect to its own system (although it may of course be incorporated into the primary rules of another legal system). A rule of recognition may be, for instance, a political, or an ethical or a prudential, but not, in any straightforward sense, a legal rule. Arguably, rules of recognition are ethical rules, part of an institutional morality containing norms for the conduct of judges. From this perspective, judicial ethics requires some such concept as a rule of recognition if there is to be an operative system of law that fulfils the basic requirements for a legal system that is sufficiently law-like to fulfill the functions that render law valuable. Any such system must be able to distinguish between appropriate and inappropriate adjudication, and any working conception of adjudicative appropriateness requires being able to test judicial conduct in this sphere against the guidelines provided by rules of recognition. Without a way of distinguishing between decisions made in accordance with law and decisions not made in accordance with law, the core of judicial conduct is normless, and such distinctions cannot be drawn without a rule of recognition. It is not necessary to construe legal validity in this way. Harts purpose in explicating his model of the union of primary and secondary rules was self-consciously explanatory, perhaps with an unacknowledged evaluative agenda that emerges from time to time. Others analyse validity in a detached conceptual manner, often as part of the exercise of ascribing

Tom Campbell

meaning to the world law,6 as Dworkin appears to interpret Hart as doing (Dworkin 1986, pp.33-37).7 Both these approaches are acceptable within their own terms but they do not address the further questions which arise when we ask which rule of recognition ought to be adopted, a question that is clearly both intelligible and political important. This intelligibility and significance surfaces in the debates that have followed the publication the 2nd edition of The Concept of Law, with its Postscript constructed by the editors from Harts notes after his death. Harts position is that a rule of recognition is an element in a theory that seeks to provide sociological explanation and understanding of law. He holds that, if we see law as a union of primary and secondary rules, then we will better understand the inner workings of developed legal systems. Where and insofar as we have a community of judges or legal officials that use a common rule of recognition to identify the rules that are binding on a populace, and are typically followed by that populace, then we have law in a sense familiar to educated citizens of contemporary societies. A common but mistaken criticism of Hart is to say that a rule that describes judicial practice is not a rule but a description, and therefore, in his own terms, lacking in normative force.8 This is to misrepresent both Harts use of the rule of recognition in his descriptive sociology and his account of social norms. To start with the second misrepresentation, the existence of a social rule does presuppose a regularity of conduct in the relevant group. This regularity, however, is only considered to be the manifestation of a rule if it comes about because the regular behaviour is the result of rule-following, that is a process whereby individuals are aware of having an obligation to act in that particular way and act accordingly, either out of a belief in the importance of the rule or as the result of social pressure. Further, a rule is a social norm of a group only if non-conformity to the rule is met by a degree of adverse reaction from other members of the group. Seeing a rule of recognition as a social norm,
Thus Coleman 1982, p.147: Legal Positivism makes a conceptual or analytic claim about law, and that claim should not be confused with programmatic or normative interests certain positivists, especially Bentham, might have had. 7 Liam Murphy identifies the difference between Dworkin and Hart as being whether the appeal to political considerations by lawyers and judges is properly understood as part of an argument about what the law (already) is. Thus we have a genuinely conceptual question, a question about a concept: does or should our concept of law allow that legal questions are answered in part by reference to political consideration (Murphy 2001, p.372). See also Raz 1979, pp.37-8. 8 For a sophisticated form of this criticism, see Perry 2001.
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The Ethics of Judicial Method

therefore, assumes a measure of conformity to a pattern of judicial decision-making, but, equally importantly, it requires conscious following of the rule and, as important, critical reaction to departures from it. This is what gives it normative force in that society. And this is what provides the basis for the description/explanation offered in Harts descriptive sociology. This model of a rule of recognition may be challenged on many counts. Descriptively, no significant regularity may be observed, little rule consciousness may be apparent and there may be a general absence of critical reaction to any pattern of absence of pattern in judicial decisionmaking. Hart cannot make an a priori judgment that every legal system has a rule of recognition in advance of an empirical study to see if this is in fact the case. Normatively, it may be argued that the conformity and reactions to non-conformity are mistaken, in that they are not justified. Indeed it would be a fallacy to which positivists must be particularly sensitive, to argue that because something is done with approval and not done with disapproval that such approval and disapproval are justified. Hart simply rejects the normative objection as irrelevant to his purpose. The empirical normativity with which he is concerned how norms exist and function in social life makes no presupposition about the correctness of the norms in question, which is a separate matter of critical morality. As to the first objection, relating to descriptive accuracy, he would agree that the existence or non-existence of a rule of recognition is a matter of degree that varies with the extent of the conformity, together with the strength and distribution of the beliefs and reactions in question. He readily acknowledges that the sort of developed legal system he has in mind is something that has gradually emerged from a system that lacked precisely these features with respect to secondary rules and can be gradually lost as a legal system degenerates (Hart 1994, chap. 6). Nevertheless, Hart has considerable confidence that rules of recognition exist. On what is this confidence based? No doubt this confidence arises partly on his personal observation of legal practice during his experience as a working lawyer. In the world of judges and other legal officials and commentators, criticisms are made of judicial practice in identifying or failing properly to identify law, particularly by other judges. Judges do have working criteria of what counts as a source of law and can formulate them when asked. Yet how can Hart react to the facts that these phenomena vary from legal system to legal system and that there is considerable disagreement in particular jurisdictions when it comes to making explicit its rule of recognition? Here, it seems, his sociological jurisprudence must move from hermeneutics to functionalism. Functionalists would claim that a

Tom Campbell

legal system cannot fulfil its function in a complex society, unless there is a working consensus as to a single rule of recognition, operating as Hart describes. If there is no such rule of recognition there can be no unity and cohesion to a system, and all the benefits that derive from being able to settle disagreements about competing primary rules, having ways of settling disputes about their application and seeing to their predictable enforcement, would be lost. Functionalist theories of this sort are explanatory if the function is one that is consciously sought, especially if it has to be fulfilled, certainly for the social group in question to survive, but perhaps simply to continue in its existing form. However, functional societal relationships may also feature as the basis for critical normative reflection. Thus, if the existence, or the existence of a group in a particular form, is thought desirable or undesirable, then the functional explanations can be transmuted into instrumental recommendations or condemnations. Notice here that the object of critical evaluation may not be the content of a rule of recognition, but the having or not having such a rule at all, independently to some extent of its content. We need rules, perhaps almost any rule, to control and deal with disputes. It is therefore possible to criticise departure from an established rule of recognition without thinking that the rule in question is a good, or the best, one. The values of coordination, order, peace and the efficient pursuit of individual and collective shared goals may not dictate any particular content for rules of recognition. If you like, the validity of a rule has a moral importance that is not derived from its truth-value. Hart himself does not take the matter further, being content to note that the descriptive and the prescriptive exercises are quite different in kind (Hart, 1994, 240). However, continuing disquiet is expressed with this situation. Some of this disquiet is justified, but much of it is not. Thus, it is well argued, that the content of some rules of recognition renders them less efficient in relation to the functional values than they would otherwise be. Any criterion that is less than clear cut in that its use may give rise to reasonable disagreement, is to that extent undesirable because it undermines the utility of the rule in relation to its functions. This is a formal matter, insofar as it does not depend on the way in which clearcutness is achieved, but it does make the content of a rule of recognition relevant to its capacity to operate as a rule of recognition. In one way, all that Hart has to concede here is that there are empirical limitations to what can serve as a rule of recognition. As a descriptive sociologist he will certainly not want to say that a legal system is somehow not a legal system simply because it does not have a highly

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The Ethics of Judicial Method

effective rule of law. Acknowledging that there are thresholds and extremes here, he can be fairly relaxed about empirical variations of this sort for his broad sociological thesis. Hart does take issue with those cases where so-called rules of recognition are not rules at all. Thus it may be asked what we are to make of a rule of recognition that says that whatever the judge decides is law is law, a hypothesis that is by no means a mere flight of fancy. Of this, Hart is inclined to say, in his criticism of Legal Realism, that this is not a rule that a judge could follow, and so it is not a rule at all. A scorer cannot act as a scorer if he has to make up what counts as a score each time she makes a decision about what the score is (Hart 1994, pp.142-146). Yet it is a rule that a judge can follow. The rule is that she must decide the case in one way or another. However, as Hart notes, it then becomes impossible to criticise that decision, although it is possible to criticise the judge for failing to make a decision at all, and in some situations any decision may be better than none. Of course, if that is the rule of recognition it will be unlikely that there is a legal system in the sense that there need not be any consistency between judges and indeed between the judgments of each individual judge. If we want a less chaotic law, and one that does not need constant litigation, we had better get another rule of recognition. Here Hart simply backs off. He accepts that rules of recognition are more diverse than he made out them to be. They contain reference to morality (soft or inclusive legal positivism), they allow for a measure of scorers discretion, and they may vary from judge to judge in the same system. What matters is that whether or not something is a law depends on some social fact and not directly on a moral judgment that has not been incorporated in law, as when moral judgments are licensed by a rule of recognition. (The terminology here is derived from Raz, 1991, p.37.) As matters of fact, he can hardly deny these evident truths. And it does not greatly endanger the general success of his descriptive/explanatory venture for him to acknowledge them. While his objective remains descriptive, he perforce must remain a soft (or inclusive) legal positivist (See Coleman, 2001a). Yet there is no reason why he should not be more ambitious than this, as he is from time to time when noting the benefits of a system of law that gives clear guidance as to the sources of law but permits a degree of judicial flexibility in how the rules are interpreted. Indeed it is clear that his conceptual preference for an analysis of law that excludes direct appeals to morality that are not authorised by a rule of recognition are political in that he commends such an concept as helping to make it clear

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that, just because something is the law, this does not mean that it is morally justified, thus encouraging a critical attitude to law. He may, and perhaps occasionally does, go further than this and argue for the desirability of hard legal positivism. Certainly, his theory provides adequate foundations for a prescriptive version of legal positivism according to which critical reasoning is brought to bear on what constitutes a good rule of recognition, one that is effective in ending disputes, economical in the demands it makes on judicial expertise, readily accessible to ordinary citizens for their own use, good at encouraging and sustaining cooperation and effective in the process of ensuring equity in punishment and the deterrence of undesirable conduct.9 To take such a line opens up the possibility of hard prescriptive positivism, the theory which says that the best rule of recognition is one that judges and citizens can apply without involving themselves in making controversial moral or other speculative judgments (Campbell 1996, pp.69-73).10 This leads to a more effective system in relation to the goals of order, dispute resolution, conduct control and coordination, and may be seen as particularly appropriate in a democratic system where contentious moral and factual issues call to be decided by debate and decision-making involving, in so far as is possible, all those affected by the decisions in question. This is the approach of ethical legal positivism, which is explicit in the moral judgments that it makes in relation to the professional roles of judges, lawyers, police and citizens. It is an approach that has deep roots in legal theory and political philosophy11 but one that is currently resisted or evaded within the ranks of legal academia.12 The reasons for this resistance or evasion are presented as primarily intellectual but they may also be ideological, for prescriptive hard positivism threatens to curtail the significance of judges, lawyers, legal academics in the name of democratic governance and the rule of positive law.
Liam Murphy points out that Hart offers moral reasons for adopting a concept of law that makes political considerations part of law only if the use of political arguments is validated by a rule of recognition, but he claims that, despite some ambiguity, Harts functionalist claims need not be taken as endorsing any moral views; Murphy 2001, p.378. See also Dworkin 1984, Perry 2001, and Moore 1991. 10 See Raz 1979, p.195 for the sources thesis that laws existence and content can be identified by reference to social fact alone, without resort to any evaluation. 11 Particularly in Bentham. See Postema 1996, pp.328-40. 12 For exceptions, see MacCormick 1985, Perry 1995, and Waldron 2001.
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The Ethics of Judicial Method

Ethical legal positivism is, of course, only one amongst many alternative normative approaches that may be taken to the selection of a rule of recognition. Further normative issues are involved in decide whether or not it is desirable to abandon or modify the requirement that there should be a rule of recognition to be followed by judges generally or even by individual judges. Consistency and clarity may or may not be instrumentally valuable in a system of command and control. However, the issue has been explored sufficiently to render plausible the conclusion that the significance and merits of the concept of legal validity, and the content that may be given to any rules of recognition that are adopted, raise morally normative issues, which become ethical issues as soon as we accept the desirability of there being a common rule of recognition adopted and applied within a specific jurisdiction.

Alternative foundations for choosing an interpretive method

Identifying relevant law is but the first step in the complex process of adjudication. A further step is the adoption of a method for dealing with laws that are, for instance, formally inadequate in that they are unclear, vague, ambiguous, inconsistent or incomplete. Our second objective is to explore how far adoption of a method of interpretation is a moral and, perhaps, an ethical enterprise. The issues involved here may be illustrated in relation to three common broad methods adopted by commentators who seek to bring some theoretical order to legal interpretation while resisting the introduction of moral criteria to accomplish this. The first is conceptual, having to do with the concept of interpretation, the second draws on theories of language. The third draws on doctrinal traditions. What we may call conceptualism is an approach to which analytical philosophers are particularly prone, which purports to deal with such issues as the identification and interpretation of law solely by way of conceptual clarification, aided by the appeal to how particular linguistic forms are utilised in practical situations. Thus, the conceptualist approach focuses on the analysis of the concept of interpretation and related terms in both legal and other contexts. Traditionally interpretation is generally distinguished from understanding, so that it is deemed possible to understand legal rules, for instance, without having to interpret them. Interpretation comes in, it is said, to deal with marginal cases where the rules are not sufficiently clear. On this view, interpretation is said to be a particular approach to the

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meaning of something that can be understood in a number of different ways. Interpretation comes into play only when a sentence is not clear in the context of it use. Interpretation is thus a choice of alternative possible readings of semantically problematic texts. More recently, it has been noted that interpretation is used more widely to make out the meaning of something (Concise Oxford Dictionary 1976). This can be taken in a variety of ways from expounding the meaning (of abstruse or foreign words, writings, dreams etc) to simply understanding or explaining the standard meaning of a word or sentence. Others point out that while interpretation must always be interpretation of something, it is in many spheres an activity of changing or developing that something to make it different from how it has been presented by others (e.g. in the interpretation of a piece of music, or a complex set of data). Overall, in the literature, analyses of interpretation have become very broad, drawing from a wide range of the contemporary usages of the term. It is often used as a synonym for any cognitive or affective engagement with any phenomenon that is capable of being considered meaningful, not merely language. What emerges from this is a rather amorphous and variable concept that can be rendered more precise in a variety of ways. What then matters in debate over specific types of interpretation, such as legal interpretation, is to make it clear how the participants are using the terms in question so that we can bring some clarity to the discussion. The corollary of this is to render it impossible to move from the diverse discourse that features the terminology of interpretation, to how it is or ought to be used in a specific context, such as that of law. Law is not, for instance, a musical performance or an attempt to make sense of scientific observations of natural phenomena. Nevertheless, in the extensive academic and professional literature on judicial interpretation it is common to argue from conceptual analysis to interpretive theory. Roughly the logic seems to go something like this. Everyone agrees that it is part of the judicial role to interpret law, conceptual analysis reveals that interpretation while it must be of something can actually purposefully change that something, therefore it is part of the judicial role and therefore perfectly proper for judges to change law by presenting it in a different way with a different meaning than it had before. Yet it is clear that conceptual analysis alone can do not more than tell us what legal interpretation can be, not either what it is or what it ought to be. If choosing a method of legal interpretation were a matter of the analysis of concepts, such as interpretation and law, then no moral

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criteria would be involved, no one could be blamed for the choices they make and there would be no basis for establishing an ethics of legal interpretation any more than one would have grounds for supporting an ethics of painting or dramatic production. All that could be established is that the language of interpretation does not necessarily exclude drawing on moral ideas, so that ethical positivism could not be shown to be a necessary component of a legal system. Neither, however, would it require it. Conceptualisation does not demonstrate that ethical positivism is either conceptually deficient or morally inadequate. In practice, all that conceptual analysis of the idea of interpretation can achieve is some clarification of the alternative methods that might be adopted in adjudication. Conceptual analysis of itself cannot, for instance, establish that interpretation is necessarily either a moral process or not a moral process. This means that we are left with the alternative of seeking to develop a non-moral style of interpretation. The question remains, should we so do. Conceptual analysis merges with other modes of more genuinely philosophical modes of discourse that seek explanation or understanding of puzzling epistemological and ontological matters. Sometimes this incorporates moral selection, but more characteristically it has to do with identifying the key propositions needed to give an intelligible account of problematic phenomena. This takes us to a core area of contemporary philosophy of language. Some positions within the philosophy of language involve the claim that human discourse cannot be understood except as a purposive enterprise necessarily involving moral presuppositions. (See Campbell 2002.) In this case no understanding and/or interpretation of legal or any other discourse can be morally neutral. This is implicit in philosophical analysis to the effect that all understandings of language presuppose a set of conditions that include morally situated assumptions arising from the purposeful nature of human communication, especially when we are concerned with guiding conduct. On such an analysis we cannot avoid taking a moral stance in our reading of rules, for we are bound to take a position as to the purposes such rules serve. While this leaves largely open precisely which moral method we should adopt in the interpretation of legal rules, it does exclude some alternatives (such as ethical positivism) and claims to do so on non-moral grounds. Refraining from the ad hominem riposte that, if all communication is morally implicated then this must also apply to formulating theories in the philosophy of language, the flaw in this approach is to assume that, even if language is predominantly purposive

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this means either that the purpose of a communication is always in doubt or that communication is not possible between those who do not share the same purposes. More generally, theories of language that deny the common reality of successful value-free communication fail to take into account the data that they seek to explain. In which case it makes perfect sense to aim at morally neutral communication. What remains true is that whether or not we should do so in particular contexts depends on the purposes that we have in mind and these are subjects to moral assessment. No sustainable theory of language can deny that workable distinctions between questions of fact and questions of value can be made. It then becomes a moral questions as to whether this is a distinction that ought to be embedded in law by separating the evaluative legislative function from the factual adjudicative one. There is, therefore, no a prior refutation of the possibility of adopting, and therefore of preferring, a morally neutral and non-purposive interpretation of the language of positive law A third, ostensibly non-moral approach to judicial method, is the doctrinal approach that appeals to the internal norms of legal practice as authoritatively established in that practice. The doctrinal approach involves drawing on the legally authoritative methods of interpretation, such as the generally accepted the rules of statutory interpretation, or the principles of common law reasoning, and assuming the desirability of the collective adherence to such convention al systems. This approach comes closer to legal positivism through its conventionalist aspects according to which the fact that a system of rules is in general use does serve as a reason for retaining and adhering to that system. Within positivism, accepted rules of interpretation are relevant to what methodology ought to be adopted insofar as they can be used to establish an agreed approach to adjudication. The rule of positive law requires systemic consistency of methodology, therefore if something is standard practice there is good reason to follow it. This is the argument for conventionalism, which holds that there are good practical reasons for following rules simply on the basis of the fact that they are generally followed. Such conventionalism is particularly relevant when we come to consider whether there should be a working consensus and hence a professional ethics of judicial method. It does not help, however, where there is a range of rather different and perhaps incompatible methods commonly employed and presented in various versions of the accepted the doctrines, or whether there is reason to question the acceptability of the current practice in this regard. On the ethical positivist model there are

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strong moral reasons for an agreed dogmatics of judicial interpretation, but dogmatics itself cannot establish what particular dogmatic system ought to be adopted.

Problems with choosing the positivist method of interpretation

Continuing the exploration of the judicial methods associated with ethical positivism in order to illustrate the underlying moral elements in the choice of a judicial method, this section reflects on some of the perceived problems with this approach in relation to issues that arise concerning formally defective legislation and contemporary trends in constitutional law. One of the prime practical objections to positivist interpretation is that it cannot be done with the materials provided. The rules provided are not clear, they are often contradictory. Legislatures just do not produce the raw material for the rule of positive law. And appellate courts are not much better with respect to making the rationales behind their decisions clear enough for the discernment of rules that can be understood and applied without recourse to controversial criteria. There is poor drafting, confused and confusing case law, and sometimes an absence of applicable law. What is the positivist judge to do in such circumstances? Before we answer that question, we should note (1) that the requirement of ethical positivism can be framed in such a way as to make it evident that clear rules and precedents should be followed where they exist, and (2) the positivist idea of ethical interpretation is part of a broader theory of normative positivism that requires formally good law-making. It is a theory of a good legal system in which the judiciary have a defined and limited role whose realisation is dependent on a whole range of factors over which judges have no control. Judicial ethics alone is not enough for the sustenance of a good legal system, although judicial ethics alone can do enormous damage, as it does when it gives up on the search for legislative intent through the examination of legislative texts in their context. However, what are positivist judges to do in such second-best situations? Not convict? Leave disputes unresolved? Perhaps, make decisions that, if followed, help to bring about the clear rules that did not hitherto exist hence remedying the defect of legislative deficiencies? But what of the substance of such decisions? Here there are the familiar alternatives of drawing on broad moral principles held to be enshrined in existing law, reasoning from the perceived purpose behind the legislation

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in question, or mimicking democratic process by drawing on what are believed to be community values and social expectations? Perhaps all the ethical positivist has to say here is that the situation is regrettable, that any method taken to deal with formal legislative deficiencies should aim to remedy these, and that there should be transparent and agreed ways of dealing with the problems in question. This takes us to another of the reasons for speaking of an ethics of interpretation, namely that in such second-best circumstances whatever methods are adopted to deal with the situation should be judicially shared methods that are as amenable as possible to predictive understanding, that is, they enable informed others, such as legal counsel, to make reliable predictions as to what courts will decide in future with respect to the defective area. This suggests that whatever moral choices are involved in determining the method of dealing with the absence of clear rules, these should be seen as not matters of individual judicial discretion but as part of a judicially coordinated effort to follow agreed standards: this fits the ethical model of judicial morality. Ethical positivist methods of interpretation also come up against the problem that they are not readily applicable to much that goes on under the head of contemporary constitutional law, a sphere in which there is inevitably a great deal of highly generalised terms, implicit understandings and morally loaded conventions that renders the aim of interpreting through text and structure alone impossible. However this is not a problem with constitutions per se, if they are conceived of as primarily rules about the allocation of power. Such constitutions can in principle be quite precise and amoral in content (although not in justification). We may have thin constitutions in the form of rules about rules that effectively allocate political power. Most of the problems that arise for the ethical positivist, however, concern thick constitutions which, through bills of rights, propose deep common law moral principles, or other substantive provisions that are often stated in morally salient terms. These can be avoided by taking the line, which follows logically from the democratic tenets of ethical positivism, that constitutions should be thin not thick, avoiding as much as possible evidently abstract moral concept in favour of more concrete and empirical terms. An argument that is frequently deployed in relation to constitutional law is that judges must take a liberal and progressive line on constitutional interpretation in order to keep it up to date with changing economic, social and political circumstances. This is quite a strong practical argument where constitutional amendment is a very difficult process, but it is far

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from a necessary feature of constitutionalism, and it can be seen as a fundamentally moral question of who has the right to effectively alter constitutions other than by explicitly formulated and constitutionally authorised processes of amendment. Clearly, there is a major moral issue of legitimacy here which relate to how, if at all, constitutions should be entrenched. One of the points commonly made in defence of bills of rights and liberal interpretation of laws in general, is that they are electorally popular or at least ought to be adopted when they do obtain majority support. This takes us to the problem of democratic self-destruction. Democratic process can not only lead to morally termed legislation it can also be used to vindicate methods of interpretation that are endorsed by elected representatives in Interpretation Acts, or indeed in statutory Human Rights Acts, which invite judges to abandon normative positivism for a more ad hoc approach that seeks to implement current or enduring social values or do whatever is necessary to further the broad purpose of any enacted legislation. Positivist legalism is not routinely democratically popular. What does the democratically inclined judge do when the democracy tells her to take over parts of the legislative role from the elected politicians? If the people want the judiciary to be guardians of moral values can they decline to do so, or can they decline to do so if they endorse ethical positivism partly on democratic grounds? One approach here is to declare that judges are self-governing and ought to adopt the judicial method that they, collectively favour. This, however, is subject to the same problem, in that judiciaries may also choose to adopt inclusive legal positivism or some other form of natural law. Perhaps there should be constitutional entrenchment of the positivist rule of law: a constitutional requirement that entrenches the principle that poorly drafted legislation may be judicially declared void for vagueness, or void for moralising, just as we can have a constitution that does not recognise a democratic decision to abolish democracy. Less dramatically we may think it a judicial duty to ignore interpretation acts that requires a purposive method that undermines the rule of positive law. However, while this may reduce the incidence of the problem, it does not remove it. This moral conundrum is, however, endemic to democratic theory and not an objection that applies particularly to ethical positivism. It is, perhaps, the sort of moral question that individuals have to decide for themselves and is therefore, in the context of judicial conduct, a matter of judicial morality not of judicial ethics.