Here I explain why it’s wrong for lawyers to pursue unjust legal outcomes.* [ *Based on: “Devil’s Advocates: On the Ethics of Unjust Legal Advocacy,” in Ethics in Politics: The Rights and Obligations of Individual Political Agents, ed. Emily Crookston, David Killoren, and Jonathan Trerise (Routledge, 2017), pp. 285-304. ]
I find the arguments strong, but I can’t help feeling that the right objection has not been made, although I do not know what that is.
I also have trouble imaging a superior alternative. I am not very familiar with legal systems that do not use the adversarial approach, but it appears they depend heavily on the competence and benevolence of the state agents running them, and so also seem deeply flawed. This may qualify as a circumstance where no adequate realistic solution exists, and we must face perplexing trade-offs.
Lawyer-client privilege was not mentioned here. Should this also be abolished? Should a lawyer be obligated to report any evidence of wrongdoing learned during a defense?
The post treats the legal system as an ideal, run by persons of integrity. When we regard the system more realistically, perhaps the accused deserves at least one person on their side, to counterbalance the biases and flaws of the system.
For this to count as a serious dilemma, I ought to be able to cite reasons why abolishing this sort of advocacy would injure innocent defendants. I don’t seem able to.
How would things differ in Ancapistan? Certainly, anyone engaged in an arbitration could hire anyone they wished to help defend them. What norm or code of ethics would prevent such a defender from advocating for a guilty person? What recourse would be due, and to whom, for the violation of such a norm? Does the advocate become an accomplice to the crime? Can the plaintiff seek restitution? This might make things difficult for innocent defendants.
Our justice system practices moral and cultural relativism. I just finished Yasmine Mohammed’s book”Unveiled,” in which she tells of how she was physically abused as a child by her radically religious parents and how, after seeking legal help, lost the case because the parents were Islamic, allowing them to commit child abuse. For reference, this took place in Canada. Had religion not been considered, they likely would have been charged.
But to steelman an objection: I think my discomfort with 2.4(2) is I still think there’s a not-unreasonable argument that, assuming the justice system remains adversarial, the justice system produces more accurate outcomes (on average) if defense lawyers try to represent their clients well rather than try to do bring about the most just outcome -- because defense lawyers simply have much less access to information than the court system (e.g., they can’t subpoena or hear out all the evidence). I don’t think providing plausible cases where this isn’t true (e.g. a lawyer clearly knows their client is guilty) necessarily refutes the claim on average.
That said, I think a compelling response to this steelman is something like: “If defense lawyers have less information, then they’re just more likely to have reasonable doubt than the court system is at the end of the trial, so it would still be justified -- as long as, from their vantage point, they have reasonable doubt -- for them to represent their clients well in these cases.”
Another point is, assuming the current adversarial system remains, the state continues having an incentive to get defendants prosecuted, often using their superior resources as the prosecution. If the state isn’t truth-seeking, it seems plausible to me that a situation where a defense lawyer acts in a truth-seeking way while the state does not produces an unjust outcome.
The state is already supposed to act in a truth- and justice-seeking way; this is universally accepted. (Though many prosecutors are unethical.) Only the defense is exempt. Interestingly, no one has complained that this leads to injustice, or that we need to have a general ethic of complete disregard for justice on the part of prosecutors in order to maximize justice.
I don’t think the morally relevant question in determining the moral obligations of the defense (when treating the state’s actions as exogenous) is what the state is supposed to do, but rather what the incentives of the state are in practice. My guess is that once someone is charged with a crime, in practice, prosecutors have every incentive to win the case and see them convicted, not to see the most just outcome happen.
I’m a bit confused by 2.4(1). The rule utilitarian argument here is “if everyone followed this rule, social outcomes would be good, so we ought to follow the rule.” You are saying the sentence “if everyone followed this rule, social outcomes would be bad, so we ought to never do the action” is false. Why does the falsehood of the second sentence imply the first one is false? Presumably the logical conclusion of “if everyone followed this rule, social outcomes would be bad” should “not everyone should follow this rule,” while the logical conclusion of “if everyone followed this rule, social outcomes would be good” should be “everyone should follow this rule.”
In other words, in my mind, “if X is a rule, you ought to do it” does not imply “if X is not a rule, you ought to not do it.” That strikes me as denying the antecedent?
I wish you'd do another Rational Egoist podcast with Michael Liebowitz. Instead of debating him this time, discuss your book Justice Before the Law. After spending 25 years in prison, he's quite interested in the criminal justice system.
I find the arguments strong, but I can’t help feeling that the right objection has not been made, although I do not know what that is.
I also have trouble imaging a superior alternative. I am not very familiar with legal systems that do not use the adversarial approach, but it appears they depend heavily on the competence and benevolence of the state agents running them, and so also seem deeply flawed. This may qualify as a circumstance where no adequate realistic solution exists, and we must face perplexing trade-offs.
Lawyer-client privilege was not mentioned here. Should this also be abolished? Should a lawyer be obligated to report any evidence of wrongdoing learned during a defense?
The post treats the legal system as an ideal, run by persons of integrity. When we regard the system more realistically, perhaps the accused deserves at least one person on their side, to counterbalance the biases and flaws of the system.
For this to count as a serious dilemma, I ought to be able to cite reasons why abolishing this sort of advocacy would injure innocent defendants. I don’t seem able to.
How would things differ in Ancapistan? Certainly, anyone engaged in an arbitration could hire anyone they wished to help defend them. What norm or code of ethics would prevent such a defender from advocating for a guilty person? What recourse would be due, and to whom, for the violation of such a norm? Does the advocate become an accomplice to the crime? Can the plaintiff seek restitution? This might make things difficult for innocent defendants.
Our justice system practices moral and cultural relativism. I just finished Yasmine Mohammed’s book”Unveiled,” in which she tells of how she was physically abused as a child by her radically religious parents and how, after seeking legal help, lost the case because the parents were Islamic, allowing them to commit child abuse. For reference, this took place in Canada. Had religion not been considered, they likely would have been charged.
I’m undecided on this post.
But to steelman an objection: I think my discomfort with 2.4(2) is I still think there’s a not-unreasonable argument that, assuming the justice system remains adversarial, the justice system produces more accurate outcomes (on average) if defense lawyers try to represent their clients well rather than try to do bring about the most just outcome -- because defense lawyers simply have much less access to information than the court system (e.g., they can’t subpoena or hear out all the evidence). I don’t think providing plausible cases where this isn’t true (e.g. a lawyer clearly knows their client is guilty) necessarily refutes the claim on average.
That said, I think a compelling response to this steelman is something like: “If defense lawyers have less information, then they’re just more likely to have reasonable doubt than the court system is at the end of the trial, so it would still be justified -- as long as, from their vantage point, they have reasonable doubt -- for them to represent their clients well in these cases.”
Another point is, assuming the current adversarial system remains, the state continues having an incentive to get defendants prosecuted, often using their superior resources as the prosecution. If the state isn’t truth-seeking, it seems plausible to me that a situation where a defense lawyer acts in a truth-seeking way while the state does not produces an unjust outcome.
The state is already supposed to act in a truth- and justice-seeking way; this is universally accepted. (Though many prosecutors are unethical.) Only the defense is exempt. Interestingly, no one has complained that this leads to injustice, or that we need to have a general ethic of complete disregard for justice on the part of prosecutors in order to maximize justice.
Thanks for the reply!
I don’t think the morally relevant question in determining the moral obligations of the defense (when treating the state’s actions as exogenous) is what the state is supposed to do, but rather what the incentives of the state are in practice. My guess is that once someone is charged with a crime, in practice, prosecutors have every incentive to win the case and see them convicted, not to see the most just outcome happen.
I’m a bit confused by 2.4(1). The rule utilitarian argument here is “if everyone followed this rule, social outcomes would be good, so we ought to follow the rule.” You are saying the sentence “if everyone followed this rule, social outcomes would be bad, so we ought to never do the action” is false. Why does the falsehood of the second sentence imply the first one is false? Presumably the logical conclusion of “if everyone followed this rule, social outcomes would be bad” should “not everyone should follow this rule,” while the logical conclusion of “if everyone followed this rule, social outcomes would be good” should be “everyone should follow this rule.”
In other words, in my mind, “if X is a rule, you ought to do it” does not imply “if X is not a rule, you ought to not do it.” That strikes me as denying the antecedent?
I wish you'd do another Rational Egoist podcast with Michael Liebowitz. Instead of debating him this time, discuss your book Justice Before the Law. After spending 25 years in prison, he's quite interested in the criminal justice system.