Legal Ethics and the Separation of Law and Morals

Abstract

This paper explores the jurisprudential question of the relationship between moral values and legal norms in legal advising and counseling in the context of an analysis of the so-called torture memos prepared by lawyers in the Office of Legal Counsel in 2002. The principal claim of the paper is that the torture memos are morally bankrupt because they are legally bankrupt. The lawyers' actions were wrong from a moral point of view because the lawyers failed with respect to their obligation to treat the law with respect, not simply as an inconvenient obstacle to be planned around. The morality of torture plays no direct role in this analysis. Although it is easy to say at a high level of generality that torture is immoral, it is possible for reasonable people to disagree in good faith over application questions, such as whether a particular interrogation technique should be deemed torture, or whether there may be some moral justification for torture in a particular case. In order for citizens and law enforcement officials to cooperate in the project of defending national security while also respecting human rights, it is necessary to reach some provisional settlement of these normative debates. Because the law enables social action in the face of disagreement, it is entitled to respect by affected individuals and also lawyers acting in a representative capacity. The position defended in this paper contrasts with two widely accepted views. The first, which I call the standard lawyers' defense of the torture memos, maintains that moral values are excluded from legal reasoning. This position rests on a misunderstanding of legal positivism or, in its more sophisticated versions, on an argument for the exclusive or hard strand of positivism. The more plausible version of inclusive positivism permits moral values to become incorporated into conventional practices of legal reasoning. The second view, which is more common within the academic legal ethics literature than among practicing lawyers, holds that the role of lawyer is directly moralized, in the sense that a lawyer acting in a professional capacity is bound by the same moral principles as an ordinary moral agent would be in the same situation. In order to defend this position, it is necessary to briefly set out the argument for the authority of law that I have defended at length elsewhere. This paper further fleshes out that argument by providing a hypothetical narrative suggesting how law derives its authority from its capacity to enable coordinated social activity in the face of persistent moral disagreement, specifically regarding the morality of torture.