The abandonment of ethics by the American legal profession through the adoption of the ‘Lawyer’s Amoral Ethical Role’. The resulting material decline in the Nation’s moral standards. (Part 3 of 4)1 Federalist 104 described the abandonment of ethics by the legal profession and their attempts to morally justify the unjustifiable. Federalist 105 provided the rebuttal to the alleged moral justification. We now need to turn our attention to the consequences of the adoption of the so-called ‘Lawyer’s Amoral Ethical Role’2 on our Society. These consequences are the material undermining of both the Rule of Law and of the moral standards of the Nation. The Rule of Law and a just Society.
The four pillars of a just society.
Decent societies strive to be just and righteous. There are four pillars that constitute the supports for the foundation of a righteous society. These are: Government, the Church, the School and the Family.3 Of these Government in general and the Judiciary branch in particular are expected to lead by example in righteousness, fairness and justice. The ‘Church’ does so by invoking its moral authority and the power of the word of the Lord to encourage, or sometimes frighten people, into staying on the straight and narrow. The School does so by teaching moral codes and honor systems in class. The Family does so by teaching the same at home. The path of virtue and righteousness is a straight and narrow uphill road that is full of rocks and pitfalls. The road to hell is a downhill slippery slope, wide, comfortable and paved with good intentions. It runs parallel and ever beckoning to the path of virtue. The nature of man makes it easy to shift from virtue to sin, from the hard uphill road to the easy downhill slide. At the present time it is obvious that the legal profession has not chosen to travel the hard road. The principle of the Rule of Law
The Bible tells us that God gave Moses the Ten Commandments as the Rule of Law to be obeyed by the people of Israel, not as laws to be subjected to self serving ‘interpretation’. From that day until the days of the advent of the American legal profession’s new concept of the ‘lawyer’s amoral ethical role’, the law has been regarded as the law, made to be obeyed. Laws are not suggestions, advisory opinions, or guides to facilitate calculations of the cost effectiveness of non compliance. Obedience and respect by all of laws as written is the meaning of the Rule of Law. To be sure man’s laws are not perfect. They represent the opinion of the enactors not knowledge. Laws can never provide the kind of certainty that science provides. In a democracy it is hoped that laws reflect justice and the majority views of the people. However not all laws are good. Sometimes good men promote civil disobedience to protest bad laws. Sometimes they succeed in changing bad laws.4 However the general principle for democratic civilized societies is that the Rule of Law is the cornerstone of their system of justice and their civilizations. There is no room in civilized societies for members of the Judiciary to consistently counsel clients to question compliance with laws from a personal advantage and cost analysis point of view. That practice has always been known to prevail with gangsters, criminals, moral imbeciles, and other moral and social misfits, but never with members of the legal profession of any civilized society before this one. The consequences of the ‘Lawyer’s Amoral Ethical Role’ on the Rule of Law and moral conduct.
The first and most dramatic consequence of the so called ‘Lawyer’s amoral Ethical Role’ is the material undermining of the Rule of Law and of ethical conduct in Society. That result came about, whether intentionally or not, by the material undermining of the ability of all four pillars of the Rule of Law to promote ethical behavior.5 Let us examine how this was done. (1) The Judiciary. The Judiciary is the heart and soul of the problem. It is primarily responsible for the decline of morals and the Rule of Law, in large part as a result of the evolution of the ‘Lawyer’s Amoral Ethical Role’. For the following reasons:
The power and authority of the ‘Church’ has been materially undermined by the legal profession on the basis of the constitutional principle of ‘separation of church and state’. The principle is sound but the envelope has been pushed to extremes. To the point where the ACLU (American Civil Liberties Union) has challenged the right of a judge to display the Ten Commandments in his courtroom.6 The founding fathers believed in God and invoked rights that they asserted came to man directly from God. To many in the Nation the separation of Church and State was not intended to go as far as the Judiciary has seen fit to push it. One may agree or disagree with that position. However the fact remains that the authority of the Church and therefore the Church’s ability to effectively influence ‘moral’ behavior has been dramatically reduced as a result. The Church7 has increasingly become the target of lawsuits intended to try and attach responsibility to it regardless of fault. That kind of activity undermines the ability of the Church to recruit good people to serve and to do the work for which it exists. The result is that the Church’s ability to influence behavior in a positive way has been materially reduced by the actions of the Judiciary. (3) The Schools
The authority of the schools to run their institutions in the best interests of their students in particular and Society in general has been materially undermined by the legal profession. In an excess of zeal propelled in part by the new ‘amoral’ role, the legal profession and the Judiciary have succeeded in doing the following:
The family where it is still strong and united continues to be the main promoter of ‘moral’ behavior. But it does not exist in a vacuum. The entire Society, infected with the immoral role that lawyers play every day, assaults it. The authority of the Church which once gave great moral direction and support to the family has been dramatically weakened by the legal profession. The public Schools have been similarly weakened. So the battle continues, but it is being lost not won. The Lawyer’s ‘amoral’ ethical role has successfully undermined the Rule of Law and moral conduct in the land. It has done so directly by officially adopting an attitude that encourages disobedience of the law. It has also done so by undermining directly and indirectly the three other main sources of respect for moral principles and the Rule of Law: The Church, The Schools and the Family. The result in practice of the Lawyer’s Amoral Ethical Role.
How does this new role change what goes on every day in the practice of law and how does it affect the Nation? Let us see what happens to the client. Effect on the client Let us imagine almost one million lawyers trained to view the law as ‘flexible’, changeable, interpretable in however far fetched way in the best interests of the client, and at worst viewed as a guide to the cost of non compliance. If each lawyer transmits this message to a single client a day, over a period of one year the message has been transmitted to over two hundred million people. Many clients will discuss the message with partners, friends, family and others. So the message is repeated loudly, clearly and often to the whole Nation in a very short time. Let us examine the result on the client’s behavior pattern.
The French say that which is not moving forward is moving backwards. No Nation stands still in its attempts to seek justice and righteousness for all. It moves forward or slides backward. The slippery slope to hell creates increased momentum for evil with the passage of time. Hitler’s path to genocide began with the Nuremberg laws in 1933. It took 8 to 10 years for his momentum to reach its genocidal zenith. The legal profession’s so-called ‘amoral ethical role’ is often a ‘facilitation of evil’ by the profession’s own admission. It is immoral and an affront to civilized societies. It has undermined the ability of all four pillars of our ‘just society’ to do their job. Its evil momentum is increasing and it will destroy the Nation if it is not stopped.
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About the author: This writer is a constitutional scholar who wrote Federalists 86 through 99, in defense of the Constitution. He is like Madison, a non lawyer and like Hamilton an immigrant and naturalized American.