(p. 253) 12. Legal reasoning and ethics
This chapter provides an introduction to legal reasoning. In the first part of the book, you will have begun building the skills that you need to find and read the law and have also been introduced to the idea of judicial precedent and statutory interpretation. You will understand, then, that the law develops as a result of decisions made by the courts as well as new legislation that comes from Parliament or the European Union. This chapter will start giving you the skills to analyse the way in which judges decide cases. There are various points of view that judges can (and do) take in deciding the outcomes of cases, so this chapter will introduce some of the theory behind judicial reasoning before moving on to show how judges reason in practice. It should be read in conjunction with chapter 4, which focuses on using legislation and chapter 7, on using case law.
The ability to appreciate and understand legal reasoning is an important academic legal skill, although it also has some practical advantages. One of the keys to academic legal success is the ability to engage critically with the law and so it is important that you begin to build your skills in analysis by seeking out the reasons that underlie particular decisions. Students often make the mistake of thinking that applying the law is simple, but this is not the case: there are many other factors which can be taken into account when deciding what the outcome of a case should be. This context provides a backdrop for the historical development of the law, an appreciation of which will enable you to develop and demonstrate your critical thinking skills.
After studying this chapter, you will be able to:
• Understand the processes involved in logical legal reasoning
• Explain how legal reasoning is more than just the mechanical application of law to facts
• Distinguish between natural law, legal positivism, and legal realism
• Be able to read a judgment and analyse the factors taken into account by judges
• Appreciate the practical benefit of understanding legal reasoning
(p. 254) 12.1 Reasoning
The Oxford English Dictionary defines the verb ‘to reason’ as:
and ‘reasoning’ as:
The action of reason; especially the process by which one judgement is deduced from another or others which are given.
You can see, then, that ‘reasoning’ (in the general sense) is working something out logically in a process of deduction. Before we move on to see what this means for legal reasoning, we must first take a brief look at some theory of logic.
One key form of logical argument is the logical syllogism which dates back to the time of the ancient Greeks (in particular Aristotle and Zeno of Citium in the third century bc ). In syllogistic reasoning, one proposition is deduced from two or more others. The proposition that is deduced is the conclusion and the two or more statements from which it is inferred are called premises.
You have probably encountered syllogistic reasoning without actually having realized so. Many logic puzzles are based upon the syllogism. For instance:
• Premise 1: All dogs are mammals
• Premise 2: All mammals are animals
• Conclusion: All dogs are animals
Have a look at the following logic puzzles and decide whether or not the conclusion is valid or invalid: in other words, whether it follows logically from the two premises without the need for any further information.
1. If today is Tuesday, then I have a criminal law seminar. If I have a criminal law seminar, then I will pack Smith and Hogan in my bag. Therefore, if today is Tuesday, I will pack Smith and Hogan in my bag.
2. All mice in England eat sunflower seeds. Some rodents eat sunflower seeds. Therefore, some rodents are mice in England.
3. All lawyers are highly intelligent. Some lawyers are not polite. Therefore, no polite people are highly intelligent.
Take a look at the answers to these puzzles with an explanation of how they were reached.
(p. 255) So, a syllogism consists of two premises and a conclusion. For a syllogism to be valid, it must be logically impossible for its premises to be true and for its conclusion to be false. You will have seen from the practical exercise that it is not sufficient that both premises are true for the conclusion also to be true. Look at this example:
• All dogs are mammals
• Some mammals can fly
• Therefore some dogs can fly
The first two premises are certainly true: dogs are mammals and some mammals (including bats and flying squirrels) can fly. However, outside the realms of mythology, there are no flying dogs. The fact that dogs are mammals and that some mammals can fly does not prove anything about the airborne capabilities of dogs. So, in this example, since it is logically possible for the premises to be true and the conclusion to be false, then the argument is not logically valid.
In legal arguments, the parts of the local argument take certain forms. The first premise (known in logic as the major premise) is generally a statement of law. This is an abstract statement of a legal rule. The second premise (known as the minor premise) is usually a statement of fact; a statement which concerns a specific person, thing, or state of affairs. The conclusion draws together the general statement of law with the particular statement of fact and therefore explains how the general rule applies to the particular facts. In the legal context, this is applying the law to the facts and is the simplest form of legal analysis or reasoning.
12.1.2 Simple legal reasoning
Legal reasoning is founded on the basic syllogistic framework. The steps in the process are as shown in Figure 12.1.
(p. 256) The steps in this process can be illustrated with a simple example:
• The issue in this particular case is whether Peter is criminally liable for the murder of John
• The facts of the case are that Peter knocked on John’s front door. When John answered the door, Peter said ‘I hate you and I want you to die’. He then shot John in the head, killing him instantly. Peter was not insane
• The legal rule is the definition of murder: where a person of sound mind and discretion unlawfully kills any reasonable creature in being (i.e. a human being) under the Queen’s Peace (i.e. not in wartime) with intent to kill or cause grievous bodily (really serious) harm
The application of the law to the facts is straightforward:
• Sound mind? We are told that Peter was not insane, so he was of sound mind at the time of the killing.
• Unlawful killing. There is nothing to suggest that Peter was acting in self-defence, was of diminished responsibility, had lost control, or was killing in pursuit of a suicide pact. Peter killed John by shooting him in the head. The killing is therefore unlawful.
• Reasonable creature in being. John is (was) a human being.
• Queen’s Peace. There is nothing to suggest that this happened during wartime.
• Intention to kill/cause grievous bodily harm (GBH). Peter’s intention is demonstrated by his words and actions. At the very least, shooting someone in the head would cause really serious harm.
Therefore, given that all the elements of the offence are made out, then Peter is criminally liable for the murder of John.
If only it was always that straightforward! Many law students—particularly those new to the study of law—assume that legal reasoning simply involves a mechanical application of the rules to the facts. This is not so. There are many other issues that courts take into account when deciding how the law should apply to particular cases. While it is true that many simple cases do involve the application of rules, there are also many hard cases that come before the courts which do not neatly fall under such a straightforward description.
12.2 Hard cases
The next exercise will illustrate the sorts of dilemmas that can come before the courts, and will also test the skills you have developed in finding case law. You will be looking at two hard cases, both of which resulted in the loss of life in extreme circumstances. The first, R v Dudley and Stephens, involves the cannibalism of a cabin boy following a shipwreck in order to save the lives of the remaining crew. The second, Re A (Children), concerned conjoined twins, Jodie and Mary, and whether it would be lawful to kill one to save the other, acting against the wishes of their parents, when leaving both joined would have resulted in their joint premature death.
Using the database of your choice, find the following cases:
R v Dudley and Stephens (1884) 14 QBD 273
Re A (Children)  Fam 147 (CA)
and answer the following questions for each case:
1. What was the legal issue in the case?
2. What was the legal rule that applied in this case?
3. What were the particular facts of this case?
4. What made this case a hard case?
5. Do you agree with the decision of the court?
You will find some comments on each of these questions at Appendix A3.1.
You should have seen by studying the two cases Re A (Children) and Dudley and Stephens that the courts sometimes have to deal with very sensitive and delicate issues. More recently, you may have heard in the news about the continuing right-to-die cases: Tony Nicklinson, who had been paralysed from the neck down since suffering a stroke in 2005, died in August 2012 after failing in a legal bid to end his life with the help of a doctor. This case ultimately ended in the Supreme Court which rejected the ‘right-to-die’ argument but the Supreme Court said that there is a ‘real prospect’ a future human rights challenge would succeed if Parliament did not reconsider the current ban. You can find the full judgment at R (Nicklinson and another) v Ministry of Justice  UKSC 38, introduced by Lord Neuberger (President) who said:
These appeals arise out of tragic facts and raise difficult and significant issues, namely whether the present state of the law of England and Wales relating to assisting suicide infringes the European Convention on Human Rights, and whether the code published by the Director of Public Prosecutions (‘the DPP’) relating to prosecutions of those who are alleged to have assisted a suicide is lawful.
So, judges have to deal with legal, ethical, and moral questions when making their decisions. Balancing these issues requires analysis of the relationship between law and morality and the role of the judiciary in making law and setting precedent. These are more abstract theoretical issues in law than you may have encountered so far on your legal studies, but it is worth persevering even if the immediate relevance of legal theory might not seem clear to you. The next section will introduce you to three different schools of legal thought before moving on to look at a classic example of different judicial approaches to the same difficult legal problem.
12.3 An introduction to legal theory
The philosophical consideration of law is commonly referred to as jurisprudence. While jurisprudence is not a compulsory topic in a qualifying law degree, some institutions require students to take a jurisprudence module at some stage in their legal studies as even a basic understanding of why the law is as it is assists in understanding the law in a deeper way and can have practical application in the real-world practice of law.
(p. 258) Within this section, we will introduce three key areas of legal theory:
• Natural law
• Legal positivism
• Legal realism
12.3.1 Natural law
Proponents of natural law consider it to be a system of law based on the laws of nature and which is, therefore, universal in application. It considers that law and morality are connected and that it is a higher system of law than any legal system constructed by man. It upholds certain rights or values that are inherent in human reason and human nature.
Natural law has been considered by philosophers over many centuries. Cicero commented in De republica (‘on the commonwealth’) that:
True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrongdoing by its prohibitions … We cannot be freed from its obligations by Senate or People, and we need not look outside ourselves for an expounder of interpreter of it. And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and for all times …
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.
Consider your viewpoint on the following issues:
1. Is it natural to be homosexual?
2. Is it natural to be racially or religiously prejudiced?
3. Is it natural to die by taking your own life?
4. It is natural to be monogamous?
5. Is it natural to use contraception?
There are no ‘right’ answers to these questions, although you will find some comments on each of them in Appendix A3.3.
So, natural lawyers will always seek to reason for an outcome that upholds morality. St Thomas Aquinas (1225–1274), the Christian philosopher and theologian, called law without moral content a ‘perversion’ of law since ‘good is to be done and promoted, and evil is to be avoided’.
The difficult question then becomes what is moral, or good, or evil and do the morals of the judiciary necessarily accord with the morals of the public?
A good example of a case that raised difficult moral issues was that of Gillick v West Norfolk and Wisbech Area Health Authority  AC 112 (HL). This case followed the publication of guidance by the Department of Health and Social Security to area health authorities on family (p. 259) planning services which contained a section dealing with contraceptive advice and treatment for young people. It stated that clinic sessions should be available for people of all ages and that, in exceptional circumstances, a doctor could exercise his clinical judgement to prescribe contraception to children under 16 without parental consent. Mrs Gillick, a Roman Catholic, sought an assurance from her local health authority that no contraceptive advice would be given to any of her daughters while they were under 16 without her knowledge and consent. The conflicting arguments were:
• If parental consent was necessary, levels of teenage pregnancy would increase
• If parental consent was not necessary, the courts would be encouraging underage sex
Gillick was determined by a 3–2 majority in the House of Lords. Using your research skills, find the case and read the judgment. Then answer the following questions:
1. What was the outcome?
2. What were the arguments put forward by the majority?
3. What did the dissenting judgments say?
4. Do you agree with the outcome?
You will find some commentary on these questions in Appendix A3.4.
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). Put another way, 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.
Thus, for the legal positivists, law is a clearly defined set of rules that is established by the state for the benefit of the state as a whole. It has no moral purpose other than to ensure the survival of the state. The theory of natural law was put forward from the sixteenth century. Thomas Hobbes in Leviathan considered that without a man-made state, the natural law would result in a ‘war of all against all’ and, in the absence of a sovereign power controlling (amongst other things) executive, legislative, and judicial power:
In such condition, there is no place for industry; because the fruit thereof is uncertain: and consequently no culture of the earth; no navigation, nor use of the commodities that may be imported by sea; no commodious building; no instruments of moving, and removing, such things as require much force; no knowledge of the face of the earth; no account of time; no arts; no letters; no society; and which is worst of all, continual fear, and danger of violent death; and the life of man, solitary, poor, nasty, brutish, and short.
(p. 260) Following on from Hobbes, Jeremy Bentham proposed the utilitarian principle of positive law, which evaluates actions based on their consequences: for Bentham, the law should create the greatest happiness for the greatest number. Bentham was not a fan of natural law, calling it ‘nonsense upon stilts’. John Austin was greatly influenced by Bentham whose theory of law also separated moral concerns by saying that law is the command issued by a sovereign, backed by threat of sanction:
The existence of law is one thing; its merit or demerit is another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry. A law, which actually exists, is a law, though we happen to dislike it.
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. More recently, HLA Hart in The Concept of Law developed the theory of legal positivism which has been continued by Joseph Raz.
Look up the case of Knuller v DPP  AC 435 (HL). This case involved a magazine which contained advertisements for readers to meet up and engage in homosexual practices. The appellants were convicted on counts of conspiracy to corrupt public morals and conspiracy to outrage public decency.
1. What was the outcome in the case?
2. Do you think that gay dating advertisements are immoral?
3. Do you think that attitudes to gay dating have changed since 1973?
4. Do you think this case would be decided differently today?
You will find some commentary on these questions in Appendix A3.5.
12.3.3 The Hart–Devlin debate
The contrast between the natural law and positivist positions was set out in a series of articles between Hart and Devlin following the consideration of the issue of legalizing homosexuality and prostitution by the Wolfenden Committee (1957). The Wolfenden Report claimed that it is not the duty of the law to concern itself with immorality.
Devlin’s position on the function of morality within the law was as follows:
Without shared ideas on politics, morals and ethics, no society can exist … If men and women try to create a society in which there is no fundamental agreement about good and evil, they will fail; if having based it on common agreement, the agreement goes, the society will disintegrate. For society is not something that is kept together physically; it is held by the invisible bonds of common thought. If the bonds were too far relaxed, the members would drift apart. A common morality is part of the bondage. The bondage is the price of society; and mankind, which needs society must pay its price.1
(p. 261) So, Devlin considered that there is a common public morality that must be protected by the law and that to remove the regulation of morality by law would inevitably lead to the spread of immoral behaviour and the disintegration of society. It followed that conduct which was viewed as immoral by the majority at the time, such as homosexuality, needed to be suppressed in the interests of society.
Devlin’s position was criticized by Hart.2 Hart disagreed with Devlin over the existence of a common morality, preferring instead the idea of a ‘number of mutually tolerant moralities’3 and that the use of law to reflect a snapshot of the dominant morality of the time was potentially harmful. Hart believed that the prohibition of conduct on the basis of a moral consensus was an unjustifiable interference with the rights of the individual to do as they wished. Therefore, legislation designed to enforce moral standards could be flawed due to the difficulties of defining morality and deciding between what is immoral and what is not. However, Hart did concede a role for the law in the maintenance of morality, but only where necessary to protect those who would engage in such immoral activities. Hart’s reluctance to treat law as a moral issue was later criticized by Dworkin who considered that law could never be entirely divorced from morality.4
12.3.4 Legal realism
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. However, realistically speaking, judges do have discretion in how they decide cases and their individual political views,5 social class, temperaments, and philosophies will all have a bearing on their reasoning and the ultimate outcome of the case before them.
This section has set out to introduce some of the main areas of legal theory and its key commentators. It is necessarily brief, but should have led you to realize that there are different schools of thought that can be applied to complex legal issues. These are summarized in Table 12.1.
Table 12.1 Key points in legal theory
Laws of nature are superior to any laws made by man
There is no superior ‘higher law’ than that made by man
Law is reflected in and explained by the decisions of the courts
Law and morality are inextricably linked
It is not necessary for law and morality to be linked
Immoral laws are not valid
Laws lacking in moral content are still valid provided that they have been enacted in the proper way
(p. 262) You may well be wondering what the real-world application of these theoretical perspectives are—after all, this is a book on legal skills and not on jurisprudence. However, an appreciation of the rudiments of legal theory can greatly assist you in understanding the principle and policy decisions behind judicial decision making and legal reasoning which can, in turn, enable you to demonstrate a greater level of critical engagement with case law when using it, particularly in essays or dissertations, in preparation for tutorials, or in the exam room. The next section will look in detail at an example which will further emphasize the point that there is no single correct answer available in relation to legal reasoning.
12.4 One case, multiple approaches
This section is based around a famous hypothetical case known as ‘the Case of the Speluncean Explorers’ written by Lon Fuller and published in the Harvard Law Review in 1948. It is similar in some respects to the real case of R v Dudley and Stephens which you encountered earlier in the chapter. It is set in the fictional land of Newgarth and the case is being heard in its Supreme Court.
In summary, five cave explorers (spelunkers) were caught underground after a tunnel collapsed. They learned through radio contact that rescue was at least ten days away, and that they could not survive that long without food. They also learned that they could survive if they were to eat one of their number. They radioed to the outside to ask whether it would be legally and/or morally permissible to kill one among them to sustain the others, but no-one above ground would answer the question.
One of the explorers, Whetmore, suggested that they throw dice to determine who should be eaten, and they all agreed. Just before the dice were thrown, Whetmore suggested that they wait until they were closer to death before proceeding; but he was outvoted, and a die was cast on his behalf. Everyone, including Whetmore, agreed that the dice were thrown fairly. Whetmore lost. When the rescuers finally reached the explorers, they found that Whetmore had been killed and eaten.
The remaining explorers were put on trial for murder under the statute which stated ‘Whoever shall willfully take the life of another shall be punished by death’ to which there was no exception applicable to this case. They were found guilty and sentenced to be hanged.
The case is now on appeal to the Supreme Court comprising five Justices: Truepenny CJ, Foster J, Tatting J, Keen J, and Handy J.
Read the full judgment of the Speluncean Explorers case carefully.
In order to analyse the reasoning of each Justice, we can start by listing whether or not they would have affirmed the conviction and sentence of the Court of General Instances as shown in Table 12.2. (p. 263)
Table 12.2 Verdicts of the Justices in the Case of the Speluncean Explorers
Affirmed conviction and sentence
Withdrew from decision
Affirmed conviction and sentence
Overall, with the Supreme Court being evenly divided, the conviction and sentence of the Court of General Instances was affirmed, and the Public Executioner was directed to hang each of the defendants by the neck until they were dead.
You should already be able to see that, even on one set of facts, the Justices came to divergent opinions—two to convict, two to acquit, and one abstention. The next part of the exercise involves a more detailed reading of each Justice’s opinion in order to determine their reasoning. We will use the opinion of Truepenny CJ as an example. He states (at page 619):
It seems to me that in dealing with this extraordinary case the jury and the trial judge followed a course that was not only fair and wise, but the only course that was open to them under the law. The language of our statute is well known: ‘Whoever shall willfully take the life of another shall be punished by death.’ N. C. S. A. (N. S.) § 12-A. This statute permits of no exception applicable to this case, however our sympathies may incline us to make allowance for the tragic situation in which these men found themselves.
In a case like this the principle of executive clemency seems admirably suited to mitigate the rigors of the law, and I propose to my colleagues that we follow the example of the jury and the trial judge by joining in the communications they have addressed to the Chief Executive. There is every reason to believe that these requests for clemency will be heeded, coming as they do from those who have studied the case and had an opportunity to become thoroughly acquainted with all its circumstances. It is highly improbable that the Chief Executive would deny these requests unless he were himself to hold hearings at least as extensive as those involved in the trial below, which lasted for three months. The holding of such hearings (which would virtually amount to a retrial of the case) would scarcely be compatible with the function of the Executive as it is usually conceived. I think we may therefore assume that some form of clemency will be extended to these defendants. If this is done, then justice will be accomplished without impairing either the letter or spirit of our statutes and without offering any encouragement for the disregard of law.
Therefore, for Truepenny CJ, the law is clear. The statute clearly applies to the conduct of the defendants: they wilfully took the life of another by putting Whetmore to death before eating him. For Truepenny CJ, it is not open to the court to ignore the clearly drafted words of the legislature. He recognizes that the Executive may provide clemency (i.e. moderate the severity of the punishment) and comments that it is not the role of the Executive to hold a hearing to judge the merits of the case: this would be encroaching too far on the role of the judiciary. Truepenny CJ concludes that justice would be done, with the defendants escaping death as the sanction for their actions via executive clemency, while leaving the integrity of the legal rule intact. Truepenny CJ does not use any arguments based on moral values in reaching his judicial decision. For him, the law is the law and the courts apply it. It is for the Executive to (p. 264) dispense justice in these particularly extreme circumstances. As his reasoning divorces law and morality, you should be able to see that he is approaching the issue from a legal positivist standpoint.
You may be interested to note that in the real-life case of Dudley and Stephens which you encountered earlier in the chapter, the court sentenced the defendants to the statutory death penalty with a recommendation for mercy. Their sentences were ultimately commuted to six months’ imprisonment by the Home Secretary (exercising executive power).
Reread the judgments of each of the other Justices in the Case of the Speluncean Explorers carefully.
For each of the Justices, consider the following questions:
1. What were the facts or issues that concerned them most in reaching their decision?
2. What theoretical position do they most closely seem to represent?
3. What do they think their role as a judge demands?
4. What do they consider to be the correct outcome?
Once you have analysed each opinion:
5. Which of the Justices do you agree with most closely, and why?
6. Which of the Justices (whose opinion you ultimately disagree with) do you find most persuasive, and why?
You will find some commentary on these questions in Appendix A3.6.
The purpose of this exercise is to demonstrate how the different theoretical perspectives introduced in section 12.3 are reflected in practice, and to underline the point that legal reasoning can be much more than the simple application of rules to a set of facts. Moreover, you should have grasped by now that, since the law of England and Wales is based on an adversarial system, that law is all about argument and, therefore, that there is no single ‘right’ answer in legal reasoning.
In practical terms, barristers get to ‘know their judges’ and understand the types of argument that will stand the strongest chances of being persuasive. For example, if you were defending the Speluncean Explorers in front of Truepenny CJ, and knew that he was, in essence, a positivist that holds to the letter of the law, you would not succeed if you ran a defence that said that the laws of society did not apply to the defendants once they were cut off from society, or that the purpose of the law of murder would not be fulfilled if it were applied to the men who acted in a way to provide the greatest chance of preserving the most life. However, if you used the same defence in front of Foster J, you would stand a much greater chance of winning your case.
12.5 Multiple approaches in real life
In this section, we will consider a case which involved multiple judgments and examine the different reasoning used by the judges in what was a 3–2 split decision. The case is (p. 265) Gregg v Scott6 which concerned the question of whether someone can claim financial damages in respect of a ‘lost chance’. Here are the facts:
The claimant, Mr Gregg, went to see his GP, Dr Scott. Gregg had just moved into the area and this was his first visit. While he was there (for sinusitis), he also mentioned a painless lump under his arm. Dr Scott described the lump as benign fatty tissue. In fact, a malignant tumour was developing. Nine months later, Gregg had moved house again and went to his new GP about the lump. The new GP also though that the lump was benign but, as a matter of caution referred Gregg on a routine basis to a surgeon. The surgeon thought something more ominous was occurring and ordered further tests, after which the cancer was discovered and treatment commenced.
At the time of the initial misdiagnosis, the claimant’s chance of surviving for ten years was 42 per cent; at the time that treatment commenced it was 25 per cent. At neither time was survival for over ten years probable (on the balance of probabilities).
The trial judge in Gregg v Scott considered himself bound by a previous House of Lords authority7 which said that, if, on the balance of probabilities, even correct diagnosis and treatment would not have prevented an injury from occurring, it followed that the claimant failed to establish that the misdiagnosis was the case of their injury. The Court of Appeal also dismissed the appeal by a majority. The claimant appealed further to the House of Lords.
Based on the facts that you know, and ignoring the operation of precedent:
1. What do you think the outcome should be?
2. Should Mr Gregg be allowed to claim damages because his statistical chance of survival had been adversely affected by the delay in treatment caused by Dr Gregg’s misdiagnosis?
The House of Lords eventually dismissed the appeal by 3–2, but each judge employed different reasoning as summarized in Figure 12.2.
1. Look at the summaries of each judge’s position in Figure 12.2.
2. Which of these, if any, is closest to your own position?
3. Do you think the House of Lords, as a whole, reached the right outcome?
You should see that there are a number of different ways in which you can think about the facts and the implications of a decision. There is no single reason that the House of Lords used in order to dismiss the appeal, but a simple 3–2 vote based on divergent sets of reasons. You should also appreciate that this situation has implications for the operation of the doctrine of (p. 266) precedent (sections 7.3.3 and 7.6) as there is no single ratio decidendi that can be distinguished in this judgment. Therefore, a later Supreme Court hearing could choose to follow any one of these sets of reasons (or more than one, or indeed none at all). Gregg v Scott illustrates the point that, in practice, judges can reach decisions based on their own reasoning and consideration of the issues that they feel are most important to them and to their personal understanding, and corresponding obligations, relating to their role as a member of the judiciary.
12.6 Legal ethics
Earlier in this chapter, we considered ideas of morality insofar as they related to legal reasoning. In this section we will introduce the closely related idea of ethical behaviour and its importance in legal practice.
Before considering this topic in more detail though, think about the following questions which begin to explore the similarities and differences between lawful behaviour and ethical behaviour:
• Is acting ethically the same as acting legally?
• If something is unethical, does that make it illegal?
• Does the illegality of an act automatically make it unethical?
• What should you do if something is illegal, but you think that it is ethical?
Two of these categories present no problem. Clearly we should do things that are legal and ethical and not do things that are illegal and unethical. The issues lie in the other two categories. If you have ever downloaded music, television programmes, or films from the Internet then this probably constitutes illegal copyright infringement: but you may think that there is nothing unethical in doing so. You may think, for example, that musicians, actors, and film-makers get enough money as it is, so depriving them of some extra royalties is not that big a deal. Does the same logic apply to the authors of textbooks who may find their work available as a free PDF on a torrent site? As authors, we would hope not, but of course we recognize that there are pirate copies of this textbook in circulation which deprive us of the royalty payment that we get each time a copy is sold. What about the situation in which drivers flash their lights at oncoming traffic to warn them about a police speed trap? This may be illegal but could be argued to be ethically justifiable.8 These acts create ethical dilemmas and ultimately an individual’s actions in such situations reflect their own personal system of values. Similarly, it is perfectly lawful to break a promise (unless it has the surrounding circumstances to make it a legally binding contract) but is widely thought of as unethical. If your parents told you that they would buy you a car if you got a first in your law degree, you would probably think it was unethical (amongst other things) if they told you after the graduation ceremony in which you picked up your first class law degree that they had actually changed their minds.
The role of ethics within the legal profession is tied up with the idea of professional misconduct. There have been principles of ethical behaviour applied to the legal profession for centuries: the Statute of Westminster I (1275) prohibited ‘deceit or collusion’ by lawyers. Professional misconduct was simply described in 1889 as something which is ‘dishonourable to him as a man and dishonourable in his profession’,9 and the earliest formulation of a code of professional conduct dates from the times of Henry VII:
• To assist the poor and oppressed without reward
• To give counsel to anyone who should seek it (p. 268)
• To dissuade clients from pursuing unjust causes and to advise them to abandon causes if it appeared that they were in the wrong
• To deal with business expeditiously and not to prolong it for gain
• To keep clients’ business secret
• To avoid corruption by money or favour
• To ‘stick with hand, foot and nail’ to the truth, never pretending that a wrong is right
• To do nothing contrary to good conscience10
Some of these principles can be linked back to broader theories of legal reasoning, for instance, the medieval ethical principle that it was wrong knowingly to defend an unjust cause can be traced to the writings of the theologian St Thomas Aquinas, who you have already encountered in the discussion of natural law in section 12.3.1.
The traditional, common law view of professional ethics in law can be summed up in the idea of ‘responsible lawyering’ which includes the lawyer’s responsibility to the court and to the processes of justice as well as to their client. In Giannarelli v Wraith,11 Mason CJ encapsulated it like this:
The advocate is as essential a participant in our system of justice as are the judge, the jury and the witness and his freedom of judgment must be protected … The performance by counsel of his paramount duty to the Court will require him to act in a variety of ways to the possible disadvantage of his client. Counsel must not mislead the court, cast unjustifiable aspersions on any party or witness or withhold documents and authorities which distract from his client’s case. And, if he notes an irregularity in the conduct of a criminal trial, he must take the point so that it can be remedied, instead of keeping the point up his sleeve and using it as a ground of appeal.
It is not that a barrister’s duty to the Court creates such a conflict with his duty to his client that the dividing line between the two is unclear. The duty to the Court is paramount and must be performed, even if the client gives instructions to the contrary. Rather it is that a barrister’s duty to the Court epitomises the fact that the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and management of a case in which he has an eye, not only to his client’s success, but also the speedy and efficient administration of justice.
Although the courts still have the right to regulate the conduct of lawyers, the governing bodies of the profession—the Solicitors Regulation Authority (SRA) and the Bar Standards Board—generally set and administer the codes of professional behaviour. Additionally, the Legal Ombudsman for England and Wales was set up by the Office for Legal Complaints under the Legal Services Act 2007 as a free scheme to resolve legal service disputes.
The right to a fair trial, as set out in Article 6 of the European Convention on Human Rights, means that the parties to a dispute, whether civil or criminal, are entitled to rely on the proceedings being conducted in line with recognized ethical principles. The mandatory principles set out by the SRA require solicitors to:
• Uphold the rule of law and the proper administration of justice
• Act with integrity (p. 269)
• Not allow their independence to be compromised
• Act in the best interests of each client
• Provide a proper standard of service to their clients
• Behave in a way that maintains the trust the public places in them and in the provision of legal services
• Comply with their legal and regulatory obligations and deal with their regulators and ombudsmen in an open, timely, and cooperative manner
• Run their business or carry out their role in the business effectively and in accordance with proper governance and sound financial and risk-management principles
• Run their business or carry out their role in the business in a way that encourages equality of opportunity and respect for diversity, and
• Protect client money and assets
If you compare these to the Henry VII principles we covered earlier, you will see that such principles have subsisted for many years and work to uphold public interest in the legal system and to ensure that the system is just and fair.
Logic and simple legal reasoning
• The logical syllogism involves forming a conclusion from two premises
• In legal reasoning, the major premise is a statement of law; the minor premise is the statement of fact. Forming the conclusion is referred to as applying the law to the facts
• There are many cases which come before the courts that do not neatly fall within the construct of simple legal reasoning
• Hard cases involve legal, ethical, and moral questions
• Determining hard cases requires an understanding of the relationship between law and morality and the constitutional role of the judiciary
• Natural law theory considers that the laws of nature are superior to the laws of man; that law and morality are inextricably linked; and that immoral laws lack legitimacy
• Legal positivism holds that there is no superior higher law than that made by man; that there is no link necessary between law and morality; and that ‘immoral’ laws are still valid provided that they have been enacted properly
• The relationship between law and morality was considered at length in the Hart–Devlin debate
• The legal realist position is that law is reflected in, and explained by, the decisions of the courts
(p. 270) Reasoning in practice
• The adversarial system in England and Wales is based upon argument and therefore there is no single ‘right’ answer in legal reasoning
• ‘Knowing your judge’ can assist in formulating arguments that stand a greater chance of success
• Decided cases can involve multiple sets of reasons from different judges with the simple majority deciding the overall outcome
1. P Devlin, The Enforcement of Morals (OUP 1965) 26.
2. HLA Hart, Law, Liberty and Morality (OUP 1963).
4. R Dworkin, Law’s Empire (Belknap Press 1986).
5. For more on this point, see JAG Griffith, The Politics of the Judiciary (Manchester University Press 1977).
6.  UKHL 2;  2 AC 176.
7. Hotson v East Berkshire Area Health Authority  AC 750 (HL).
8. Although prosecutions have been brought in such cases for obstructing the police in the course of their duty, the High Court ruled in DPP v Glendinning  EWHC 2333 (Admin) that flashing vehicles will not obstruct officers in the exercise of their duty unless there were vehicles that could have been affected by the signals that were actually speeding or were likely to speed.
9. Re G Mayor (1889) 5 TLR 407. As well as encapsulating the idea of professional legal misconduct, the use of the male gender in this quote clearly shows it to be a creature of its time.
10. Mark Humphreys, ‘Legal Ethics, Past and Present’ Law Society Gazette (30 November 2009).
11. (1988) 165 CLR 543.