Different Ethical approaches

Question 1

Define what is meant as a Rule Based Approach

Answer 1

The Rule Based Approach:

Certain moral rules must be followed and following those rules does not depend upon circumstances. It seeks to reduce ethical principles to a set of rules to follow. It does not consider anything other than the act. It sets moral rules. Acts determine morality.

Question 2

State some examples of Rule based ethical approaches

Answer 2

Duty based ethics (deontology)

Focuses on the idea that there are certain moral rules that must be followed, regardless of the circumstance. Key example of a rule based approach is Deontology particularly Kantian Deontology Ethics.

Rule Consequentialism – and principlism

An action is morally right if and only if it does not violate the set of rules of behavior whose general acceptance in the community would have the best consequences—that is, at least as good as any rival set of rules or no rules at all. It Promotes the following of rules that will normally overall produce good consequences and therefore you must follow them regardless of the circumstances.

Question 3

Define what is meant by an Outcome Based Approaches:

Answer 3

Outcome based ethics (like consequentialism and utilitarianism) focuses on the result. Maximising happiness overall for instance. However there’s different types of utilitarianism.

Consequentialism – determines whether an act is morally justified or not, depending on whether it produces good or bad consequences overall. Key issue in determining whether an action is ethically appropriate is to consider its consequences. Consequentialism requires a careful consideration of all the consequences of act, there may be some good and some bad consequences flowing from an act, in which case you need to determine whether, overall, more of the consequences are good or more are bad.

Question 4

State some examples of outcome based approaches to legal ethics

Answer 4

Utilitarianism: Utilitarianism is a family of normative ethical theories that prescribe actions that maximize happiness and well-being for the affected individuals. In other words, utilitarian ideas encourage actions that ensure the greatest good for the greatest number.

Act Utilitarianism – Act utilitarianism is a utilitarian theory of ethics that states that a person’s act is morally right if and only if it produces the best possible results in that specific situation

Question 5

Explain what is meant by a Character Based approach to legal ethics

Answer 5

A character-based approach to ethics focuses on the role of character and virtues in the decision-making process and emphasises the importance of character traits as opposed to rules or consequences.

It is a character-based approach to morality that emphasizes the character of the moral agent themselves, rather than the morality of their actions. Virtue is acquired through practice, and by practicing being honest, brave, just, generous, and so on, a person develops an honorable and moral character.

For Aristotle, eudaimonia is the highest human good, the only human good that is desirable for its own sake (as an end in itself) rather than for the sake of something else (as a means toward some other end).So in order to achieve this ultimate state you need to lead a life aimed at perusing what is worthwhile and being a virtuous human being.

Question 6

Explain Consequentialism

Answer 6

Consequentialism determines whether an act is morally justified or not, depending on whether it produces good or bad consequences overall.

For a consequentialist, the key issue in determining whether an action is ethically appropriate is to consider its consequences. An action is right if, all things considered, the consequences are good and an action is wrong if the consequences are bad.

Therefore it rejects the rules for ethics such as do not kill or do not lie because it depends on the circumstances and the ultimate outcome and consequence rather than the single action itself. So, if lying in a particular situation will produce an outcome that is more good than bad then it’s legitimate to lie.

Consequentialism requires careful consideration of all the consequencesof an act. There may be some good and some bad consequences flowing from an ac in which case you need to determine whether overall more of the consequences were positive.

Question 7

Explain some of the key issues with consequentialism

Answer 7

• What does the most ‘good’ really mean. Utilitarianism seeks to increase the good, with the greatest good being the largest amount of happiness and pleasure - however this can be problematic. Most people do not simply make decisions based on what would make them most happy or increase their pleasure.
• Consequentialism should not be restricted to happiness, but should include other kinds of goods however suddenly the approach becomes very vague.
• The approach creates uncertainties because it depends on predicting the consequences of our actions, when often we aren’t able to do so. It’s impossible to work out whether our actions will produce good or bad and how wide the net of consequences should be thrown. Full consideration of all of the possible consequences is far too complex.
• It places no weight on motivations and intentions. The act is justified under consequentialism if it produces good results even if it’s badly motivated. Thus the outcome of action can be good but it’s unethical to begin with.

Question 8

Explain Rule Consequentialism

Answer 8

Rule consequentialism is an alternative approach to regular consequentialism which promotes the following of rules that will normally overall produce good consequences.

RC argue in favour of developing rules that, if followed, will promote their best outcomes over the long run so rule consequentialism asks which general rules will promote the best consequences in the long run, assuming that everyone accepts and complies with them as opposed to what will promote the most good in this particular case.

One benefit of the rule consequentialist approach is that sometimes there is a difference between what is good for an individual person and what’s good for people as a group.

Question 9

Explain some of the key issues with Rule consequentialism

Answer 9

• It has many difficulties: it’s problematic for individuals seeking guidance on what to do in their particular situations. Working out the consequences of alternative courses of actions as required for ‘act utilitarianism’ is difficult enough; attempting to work out what rule generally to apply in cases of this kind is very complex and challenging.
• Further there’s the issue of whether within rule utilitarianism the rules have exceptions and so how these exceptions are to be calculated and implemented. Again there is no taking to account motivation and intentions.

Question 10

Explain Deontology

Answer 10

Deontology provides a quite different approach to ethics from consequentialist utilitarianism and states that there are certain moral rules which must be followed regardless of the circumstances of a scenario.

A deontological approach holds that certain actions are good or wrong in or of themselves. I.e. telling the truth isn’t good because it makes people happy but because its good in itself. For instance Kantian deontological ethics, kant argues as a principle rule is that you should never use someone else as a means to an end, and its key for lawyers in the sense that lawyers should not use clients as a means to an end, to achieve their own fails or because they believe doing certain things will create more happiness, pleasure or good, but do what’s i the best interest of their clients because that in itself is good.

It’s crucial for deontologists that a breach of an ethical principle cannot be justified simply by referring to the consequences. Telling the truth might cause pain in some cases but that is no justification for lying.

One key benefit of deontology is clarity: the rules are clearly set out and don’t differ depending on circumstances whatsoever, therefore our ethical duties are clear.

Question 11

Explain some of the key issues with Deontology

Answer 11

– Deontologists often place too much weight on duties and moral duties.

• Concequentalists question whether principles should be stuck to even in the event it causes pain and negative consequences. Some deontologists allow flexibility and accept the principle must be followed unless there are overwhelmingly bad consequences that will not justify the action or rule being fulfilled.
• A large problem or argument against deontology is where these rules and moral duties actually originated from and whether they’re wholly valid, they are mostly derived from rationality. The problem is that people’s nationality leads them to different conclusions on different moral issues.

Question 12

Explain Principlism

Answer 12

Principlism involves applying a set of prima facie principles to an ethical dilemma.

A popular way of applying a deontological approach is through an approach known as principlism. Principlism avoids some of the grand themes, through considering an application of the issues at hand, the correct ethical approach becomes apparent. It relies on four key principles;

• Respect for autonomy
• Non-maleficence
• Beneficence and
• Justice

A common morality: that is a set of principles agreed by people around the world from a broad range of perspectives. Principlists hope everyone will agree that these principles are good ones to follow whilst also acknowledging that these are prima facie principles and that there may be particular cases in which there are good reasons to not apply these principles.

They argue when approaching an ethical dilemma,we should consider what each of these four principles would have to say about how to act and this provides tools to help us look at the ethical issue but does not give us the answer that none of these principles are ranked.

However, it’s popular as it provides a workable way of thinking through the issues at play buy taking each one and thinking through its significance allowing us to consider all of not most relevant moral issues.

Question 13

Explain the concept of justice and the 3 different types

Answer 13

The requirement of justice means that the lawyer mist act fairly as between different clients and also to promote justice more widely.

This involves a commitment to the well-being of the legal profession and to the justice system as a whole. However it’s the concept of what is meant by ‘justice’ which is complex. Most theories of justice is that it’s the principle of formal equality of all people.

However Justice can be a slippery concept as there’s no clear agreement about what it contains or involves. It comprises of three key aspects;

• The procedural: The procedural aspects of justice requires a proper hearing for disputes and thus judges be free from bias. There should be opportunity for both sides to present its case and reasons given for a decision/ Procedural justice is uncontroversial.
• The substantive: Substantive justice requires that the outcomes of legal disputes are jus, what is ‘just’ a law is a huge question. SOme lawyers believe it’s the job of parliament and the courts to ensure the content of the rules is fair and the lawyers will use the existing legal rules to pursue a client’s case.
• The social: Social justice takes a broader view. Justice is not only about having a fair legal system but also ensuring that soccer generally is fair; key principles of the social dimension of justice: that offices and positions should be open to all with fair equality of opportunity and that the social system should act for the greatest benefit of the least advantaged of society.

Question 14

Explain some of the key issues with Principlism

Answer 14

• In difficult cases it doesn’t really provide a clear approach especially in cases in which the principles suggest different answers.
• Principlism does not tell us which principle to follow, indeed nearly all critical dilemmas come down to a clash between two or more principles to follow and so without any indication of which principle is of more significant importance and so lack of ranking of the principles, provides little help with resolving these ethical dilemmas.

Question 15

Define Hermeneutics

Answer 15

Hermeneutics provides a very different way of responding to ethical dilemmas from those discussed so far as it promotes listening and talking through problems. Through articulating the issues and discussing them a solution will emerge.

Question 16

Define Casuistry

Answer 16

Casuistry: It avoids relying on grand principles and applying them to the factors of the case, as does for insurance principlism, instead Casuistry recommends dealing with cases one by one and relying on the agreed approach. Lawyers feel familiar with this as it holds similarities to the system of precedent in common law jurisdictions such as the UK. So if faced with an ethical dilemma a lawyer will ask how similar cases were dealt with and seek to find the correct solution that way.

Question 17

Explain the theory of Natural law

Answer 17

Natural law has been considered by philosophers over many centuries.

The basic principle of natural law is that, as a higher law, any law made by man must accord with its principles in order to be valid. If law is not moral, then it is not law and has no authority.

There’s a complex relationship between morality and law. Many philosophers such as Aristotle and Auinas believed law derived its authority from having moral underpinnings. This is the natural law mode of jurisprudence. Natural law remains a significant element of judicial reasoning i.e. Human Rights law.

Question 18

Explain the theory of Legal Positivism

Answer 18

In contrast to natural law, legal positivism holds law and morality to be separate issues. Man-made law is stated (or ‘posited’; hence ‘positivism’) by the legislature, and, provided that it has been properly enacted, it is legally valid, regardless of its moral content (or lack thereof).

Whereas natural law is considered valid by virtue of its content (and thus invalid due to a lack of moral content), positive law is considered valid by virtue of its source only (and thus would be valid despite a lack of moral content). Legal positivism considers that law is a human construct and does not recognize a higher natural law.

The focus of legal positivism shifted during the mid-twentieth century from the role of the legislative institutions to the role of the courts. Hans Kelsen proposed a pure theory of law which also rejected the necessity of a connection between law and morality, stating that laws did not require additional moral content for their legitimacy.

Positivists in the 1th century believed that the search for a relationship between law and morality was of secondary importance and that understanding how law obtained its authority and society was more significant. More recently people have seen law as deriving authority from a system of rules. Rules draw legitimacy from fundamental laws accepted as basic to society.

Question 19

Explain the theory of Legal Realism

Answer 19

From the 20th century realist believe all this theorising was rather missing the point. The law is what it is and is determined by factors prosaic as who represented the parties, who was on the bench and most importantly the facts of the cases being heard or appealed.

Legal realism takes a different view to that of natural law or legal positivism. Legal Realists are less concerned with what the law should be, or its precise wording in statute, instead holding the view that the law should be understood in the context of how it is used in practice.

In other words, this position is more ‘real-worldly’ in that the law is reflected in the decisions of judges. Legal realists simply look to describe what the law is, rather than what it ought to be. The leading proponent of legal realism was an American jurist, Oliver Wendell Holmes, who considered that if law just required the mechanical application of rules, then there would be no need for adversarial proceedings: courts would just apply the law.

Question 20

Explain the Hart v Devlin debate (conflict between Natural Law vs Legal Positivism)

Answer 20

The Hart–Devlin debate was a famous debate in the mid-twentieth century between legal philosophers Patrick Devlin and H. L. A. Hart about whether the law is a suitable tool for the enforcement of morality. Devlin argued that the law is a suitable tool to enforce morality, while Hart disagreed.

Delvin believes in the theory of Natural law: that natural law, morals, are the higher law and that any law made by man must accord with its principles in order to be valid. If a law is not moral then it is not a law and has/should have no authority.

Hart however is a Legal Positivist and balives law is considered valid by virtue of its source only and thus would be valid despite a lack of moral content. Legal positivism considers that law is a human construct and does not recognise any higher natural law.

Hart and Devlin held different views on the extent to which the state should regulate private behaviour. Hart was a legal positivist and accordingly believed the state should only regulate behaviour that is harmful to others or that interferes with the basic rights of individuals.

In contrast, Devlin argued that the state has a legitimate interest in regulating private behaviour that threatens the moral fabric of society. He believed that the state has a duty to promote a common morality, and that this requires it to regulate behaviour that is seen as morally offensive to the majority of people.

The debate between Hart and Devlin focused on two central questions. The first was whether the state has a legitimate interest in regulating private behaviour. Hart argued that the state should only regulate behaviour that is harmful to others or that interferes with the basic rights of individuals. Devlin, on the other hand, believed that the state has a duty to promote a common morality, and that this requires it to regulate behaviour that is seen as morally offensive to the majority of people.

The second question was the relationship between law and morality. Hart argued that the law can be separated from morality, and that the state should only regulate behaviour that is harmful to others. Devlin, however, believed that the law and morality are intertwined, and that the state has a legitimate interest in regulating behavior that is seen as morally offensive to the majority of people.

The Hart-Devlin debate remains an important and influential discussion in the field of jurisprudence. While there is no clear consensus on these issues, the debate has helped to shape our understanding of the relationship between law and morality, and the role of the state in regulating private behaviour.

Question 21

State the 7 key ethics cases you could utilise to analyse various ethical dilemmas

Answer 21

R v Brown [1994] 1 AC 212

R V Ministry of Justice [2014] UKSC 3

R (Purdy) v Director of Public Prosecutions [2010] 1 AC 345

R v Dudley and Stephens (1884) 14 QBD 273

Re A (Children) [2001] Fam 147 (CA)

R v Howe 1987

Airedale NHS Trust v Bland - [1993] 1 All ER 821

Question 22

Outline the group of characteristics Lord Bingham declared were defining factors of the rule of law

Answer 22

The rule of law is a concept used to describe a group of characteristics necessary for a functioning and civilised state. Lord Bingham is noted for his defining factors of the rule of law which are;

1. The law must be accessible, intelligible and predictable.
2. Questions of legal rights and liability should ordinarily be resolved by application if the law and not the exercise of discretion.
3. The laws if the land should apply equally to all, save to the extent that objective differences justify differentiation.
4. The law must afford adequate protection of human rights.
5. Means must be provided for resolving, without exercise cost or delay, civil disputes which means the parties cannot resolve themselves.
6. Ministers and public officers must exercise the powers conferred to them reasonably, in good faith, and for the purpose of which the powers were conferred without exceeding the limits of such powers.
7. The state must comply with its obligations in international law.