When it comes to day to day living, many people are in agreement on what is right and what is wrong. Giving change to people who ask for it, shoveling your elderly neighbour's driveway, and turning off the lights when you're not in the room: good. Killing, robbing, and drug trafficking: bad. Helping the police to convict mobsters who kill, steal, and traffic drugs: good.
While many moral debates can get complicated, this one rarely does. Even when helping the police involves turning on your compatriots – "snitching" – many people (although notably not the President of the United States of America) think the practice is a net good.
There's a recent case in Australia where opinion has been rather more split. Why? Well, the informant was a lawyer – specifically, a lawyer who had worked with the accused parties. Here's a sampling of commenters on both sides:
In this case I feel it is for the greater good that human garbage like Mokbel are convicted even if the system has to be bent to do so.[^1]
The job requires strict adherence to the ethical rules. If you let your dog run the house, the house gets torn apart.
The brave lady in question went above and beyond to keep Victorians safer. If these thugs are released or sentences reduced there will be uproar.
The right to an open and fair trial is a hallmark of a democratic country even if sometimes a defendant who is in fact guilty gets acquitted.
While I’m normally happy to see violent mobsters go to jail, here I must disagree with everyone who offered support for the lawyer. I think it was wrong of her to inform on her clients and correct for the high court to rebuke the police in the strongest possible terms. I certainly don’t want any of those mobsters back on the street and I hope there’s enough other evidence that none of them have to be released.
But even if some of them do end up winning their appeals, I believe we are better off in a society where lawyers cannot inform on their clients. This, I think, is one of the ethical cases where precedent utilitarianism is particularly useful in analysis and one that demonstrates its strengths as a moral philosophy.
(To briefly recap: precedent utilitarianism is the strain of utilitarian thought that emphasizes the moral weight of precedents. Precedent utilitarians don’t just consider the first-order effects of their actions on global wellbeing. They also consider what precedents their actions create and how those precedents can be later used for others for good or ill.)
The common law legal system is premised on the belief that the burden of proof of crime rests upon the state. If the state wishes to take away someone’s liberty, it must prove to a jury that the person committed the crime. The accused is supposed to be vigourously defended by an advocate – a lawyer or barrister – who has a legal and professional duty to defend their client to the best of their abilities.
We place the burden of proof on the government because we acknowledge that the government can be flawed. To give into every demand it makes leads to tyranny. Only by forcing it to justify all of its actions can we ensure freedom for anyone.
(This sounds very pretty when laid out like this. In practice, we are rather less good at holding the government to account than many, including myself, would like. Especially when the defendant isn’t white. I believe part of why society fails to live up to its duty to hold the government to account is sympathies that commonly lie with police and against defendants, the very sympathies I’m arguing against holding too strongly.)
But it’s not just upon the government that we place a burden to avoid pre-judging. We require advocates to defend their clients to the best of their abilities because we are skeptical of them as well. If we let attorneys decide who deserves defending, then we have just shifted the tyranny. Attorneys can make snap judgements that aren’t borne out by the facts. They can be racist. They can be sexist. They can make mistakes. It’s only by forcing them to defend everyone, regardless of perceived innocence or guilt, that we can truly make the state do its duty.
This doesn’t mean that lawyers always have to go to trial and defend their clients in front of a judge and a jury. It could be that the best thing for a client is a guilty plea (ideally if they are actually guilty, although that’s also not how things currently work, especially when the accused isn’t white). If a lawyer truly believes in a legal strategy (like a guilty plea) and the client refuses to listen, the attorney always can walk away and leave the trial defense to another lawyer. The important thing is that someone must defend the accused and that that someone will be ethically bound to give it their best damn shot.
Many people don’t like this. It is obviously best if every guilty person is punished in accordance with their crime. Some people trust the government to the point where they view every accused as essential guilty. To them, lawyers are scum who defend criminals and prevent them from being justly punished.
I view things differently. I view lawyers as people who have signed up for an alternative morality. While conventional morality holds that we should punish criminals, lawyers have signed up to defend all of their clients, even criminals, and to do their best to prevent that punishment. This is very different from the rest of us!
But it’s complimentary to my (our?) morality. It is not only best if we appropriately punish those who break the law. I believe is also best if we do it without punishing anyone who is innocent.
We cannot ask lawyers to talk to their clients, figure out if they’re innocent or guilty, and then inform the judge or dump as clients all of the truly guilty. This will only work for a short while. Then everyone will figure out that you have to lie to your attorney (or tell the truth if you’re innocent) if you want to avoid jail. We’re now stuck trusting the judgement of attorneys as to who is lying and who is telling the truth – judgement that could be tainted by any number of mistakes or prejudices.
In the Australian case, the attorney made a decision she wasn’t qualified to make. She, not a jury, decided her client was guilty. She doesn’t appear to be wrong here (although really, how can we tell, given that a lot of the information used in the convictions came from her and her erstwhile clients weren’t able to cross-examine her testimony) but if we don’t want a system where a random lawyer gets to decide who is guilty or not, the important thing isn’t that her testimony is true. The important thing is that she arrogated power that wasn’t hers and thereby undermined the justice system. If we let things like this stand, we enable tyranny.
The next lawyer might not be telling the truth. He may just be biased against black clients and want to feel like a hero. Or she might be locked in a payment dispute and angry with her client. We don’t know. And that should scare us away from allowing this precedent to stand. A harsh rebuke here means that the police will be unable to use any future testimony from lawyers and protects everyone in Australia from arbitrary imprisonment based on the decisions of their lawyer.
Focusing on the precedents that actions set is important. If you don’t and instead focus solely on each issue in isolation, you can miss the slow erosion of the rights and freedoms that we all rely on (or desire). Its suitability for this sort of analysis is what makes precedent utilitarianism so appealing to me. It urges us to dig deeper and try to understand why society is set up the way it is.
I think alternative moralities, actively different moral systems that people sign up for as part of their professions are an important model to hold for precedent utilitarians. Alternative moralities encode good precedents, even if they stand in opposition to commonly held values.
We don’t just see this among lawyers. CEOs sign up for the alternative morality of fiduciary duty, which requires them to put the interests of their investors above everything but the law. Complaints about the downsides of this ignore the fact we need companies to grow and profit if we ever want to retire 1. Engineers sign up for an alternative, stricter morality, which holds them personally and professionally responsible for the failures of any device or structure they sign off on.
Having alternative moralities around makes public morality more complicated. It becomes harder to agree on what is right or wrong; it might be right for a lawyer to help a criminal in a way that it would be wrong for anyone else, or wrong for an engineer to make a mistake in a way that would carry no moral blame for anyone outside of the profession. These alternative moralities require us to do a deeper analysis before judging and reward us with a stronger, more resilient society when we do.
This isn’t just a capitalism thing. Retirement really just looks like delay some consumption now in order to be able to consume more in retirement. Consumption, time value of [goods and services, money], and growth follow the same math whether you have central planning or free markets. Communists have to figure out how to do retirement as well and they’re faced with the prospect of either providing less for retired people, or using tactics that would make American CEOs blush in order to drive the sort of growth necessary to support an aging retired population. ↩