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Keren Bright The Open University Law School

Responding to the Ethics and Values Recommendations of the Legal Education and Training Review: What, Why (and How)?. Keren Bright The Open University Law School. Question:.

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Keren Bright The Open University Law School

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  1. Responding to the Ethics and Values Recommendations of the Legal Education and Training Review: What, Why (and How)? Keren Bright The Open University Law School

  2. Question: • Does the teaching of the law degree in many institutions place too much emphasis on the mechanical/technical? Are we producing shallow-minded technicians? • (Of course there are lots of legal technical rules which are formulated for reasons of efficacy not morality.)

  3. LETR Recommendation 7 • The learning outcomes at initial stages of LSET should include reference to (as appropriate to the individual practitioner’s role) to an understanding of the relationship between morality and law, the values underpinning the legal system,and the role of lawyers in relation to those values.

  4. LETR • p. 21 … regulators are encouraged to consider developing a broad approach to this subject rather than a limited focus on conduct rules and principles. • p. 1393 Recommendation 7: It is recognised that the extent and depth of focus on these issues will vary significantly between education and training schemes, and there is no expectation that these different elements are given equal weight. At the core of this recommendation, however, is the importance of developing understanding and appreciation of legal values …

  5. R.Burridge and J.Webb ‘The Values of Common Law Education: Rethinking, Rules, Responsibilities, Relationships and Roles in the Law School’ (227) 10 Legal Ethics 72 • ‘Legal values’ is an ill-defined, seldom debated term and one which remains underdeveloped. They argue that no values are exclusively legal and that those, like truth or justice, that may be associated with law, are also found in other disciplines, professions or epistemologies, expressing underlying moral values.* • * ‘Legal Ethics at the Initial Stage: A model curriculum’, Boon, A., December 2012, The Law Society

  6. Question: • Should ‘legal principles’ have been added to Recommendation 7? Or doesn’t it matter? • … the values and principles underpinning the legal system …..

  7. Dictionary definitions • Values: one’s judgement of what is valuable or important in life; one’s principles or standards • [Legal values: whose judgement?; whose principles or standards?] • Principle: fundamental truth or law as the basis of reasoning or action; personal code of conduct • On principle: on the basis of a moral attitude

  8. To name but a few legal principles and / or values that have a moral foundation: • Natural justice; no man may be a judge in his own cause / the rule against bias; hear the other side / the right to a fair hearing • Concepts of reasonableness and proportionality • Procedural fairness and abuse of process • The distinction between legal and equitable interests • The device and remedy of constructive trusts • Equitable maxims such as ‘he who comes to equity must come with clean hands’ • The neighbour principle: parable of the good Samaritan • Piercing the corporate veil when circumstances permit • The relative strength of the bargaining parties and the distinction between businesses and consumers • The reasons for the difference between the standard of proof in criminal and civil cases • Mens rea, the degree of fault and the distinction between intention, recklessness and negligence

  9. Question: • How is it possible that law students emerge from a law degree without ‘an understanding of the relationship between morality and law, the values underpinning the legal system, and the role of lawyers in relation to those values (LETR Recommendation 7)? Surely these are implicit in what we teach law students. Morality is the bedrock of much law (which is not to say that the two completely overlap: they plainly don’t).

  10. Lost in translation?

  11. Surely we teach this? • Moral objectivism: one absolute set of moral values. Moral objectivism and the irreducible minimum. (e.g. The European Convention of Human Rights?) • Moral relativism: moral values change over time, which often result in the law following suit. (e.g. cohabitation; homosexuality)

  12. Should we teach moral philosophy? • Moral theory: Rights; Virtue Ethics (e.g. Aristotle); Consequentialism (e.g. Mill, Bentham); Duty theories (e.g. Locke, Kant) • Do we really want to add more ‘stuff’ to the law degree? • Can we teach morality and the law without moral philosophy? • Do we have enough curriculum in terms of legal values and principles anyway?

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