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127South -Asian Journal of Multidisciplinary Studies (SAJMS) ISSN:2349-7858:SJIF:2.246:Volume 3 Issue 6

ETHICAL POSITIVISM: A REPLY FOR LEGAL INJUSTICE

Prakriti. M and Keerthna. G1

Abstract:

The term ‘ethics’ is usually described as ‘duty’ and ‘obligation’ but when it comes to the

legal aspect these are less fundamental than ‘values’. Though, this comparison is yet to be

recognized by individuals or societies which run on a predesigned set of rules and practices

which are unquestioned. The legal studies have now reached a point where it is a critical

requirement of the hour to determine the basis of ethical positivism and provide the term a

well-defined meaning which is derived after careful analysis of the said requirement. Austin

put the concept in rather simple terms while the dominant view among the analytically

inclined philosophers of law is contradictory stating it is a subject of more competing

interpretations along with persistent criticisms and misunderstandings.

It’s a well-established fact that legal concepts are not one to be understood by layman and

thus learned professionals are trained in order to understand and execute it. It’s high time

the concept of ethical positivism be turned into the basis for explaining certain concepts of

law and hence answers all the criticisms and misunderstandings.

Keywords: legal norms, ethical positivism, values, duty, obligation.

INTRODUCTION1 Saveetha School of Law

Copyright © Universal Multidisciplinary Research Institute Pvt Ltd


"In civilized life, law floats in a sea of ethics - Earl Warren"

Philosophy of law is a study which concerns with providing an overview of a general

philosophical analysis of law and legal institutions. The issues dealt with under this subject

range from the nature, scope and objectives of law to the legal systems and practices to the

general questions about the connection between law, morality and values along with a

justification for various legal institutions.

In order to simplify the study of legal philosophy, they are roughly divided into three

categories namely; Analytical Jurisprudence, Normative Jurisprudence and Critical Theories

of Law.

Analytical Jurisprudence, as the name suggests entails providing an analysis of the essence of

law to give an understanding of what differentiates it from the other systems and norms, such

as Ethics. This includes the Natural Theory, Legal Positivism and also Ronald Dworkin’s

Third theory.

The Natural Theory elucidates the necessity of a positive relation between the concepts of

law and the social morality. Summarizing the theory, in short, we can say that according to

this theory that the concept of law cannot be completely articulated without referencing or

consulting the moral notions.

Legal Positivism on the other hand, which is opposed to all forms of naturalism, is roughly

constituted by three theoretical commitments: (i) the Social Fact Thesis, (ii) the

Conventionality Thesis, and (iii) the Separability Thesis. The Social Fact Thesis (which is

also known as the Pedigree Thesis) asserts that it is a necessary truth that legal validity is

ultimately a function of certain kinds of social facts. The Conventionality Thesis emphasizes

law's conventional nature, claiming that the social facts giving rise to legal validity are

authoritative in virtue of some kind of social convention. The Separability Thesis, at the most

general level, simply denies naturalism's Overlap Thesis; according to the Separability

Thesis, there is no conceptual overlap between the notions of law and morality.1

And the last theory under the analytical jurisprudence is the Ronald Dworkin’s Third theory

which has rejected both the above said theory on grounds that there are certain technicalities

and complications in the legal process. He tries to convey that the legal process is much more

complicated than portrayed under the other theories and that there are certain rules and

regulations which are mandatory and should not be tampered with. Hence he concludes by



saying, “if we treat principles as law we must reject the positivists' first tenet, that the law of

a community is distinguished from other social standards by some test in the form of a master

rule”.2

Normative jurisprudence, deals with the study of normative, evaluative and prescriptive

issues which are commonly faced when it comes to law. These include Freedom and the

Limits of Legitimate Law, Obligations to Obey the law and the basis of punishment i.e.

justification of the punishments.

Freedom and Limits of Legislative law refers to the restrictions imposed by laws to contain

human autonomy and for the benefit of the society and to maintain peace. These cannot be

questioned by anyone and are rules that ought to be followed by all irrespective of their

position in the social chain.

Obligations to obey law and Justification of Punishment are interlinked in a way. It is the

duty of the people to follow and obey the law. In case, any disobedience is caused the

consequences can be catastrophic i.e. punishment encrypted under the law. The punishments

are allotted depending on the intensity of the crime from one of the five categories namely;

Retributive, Deterrent, Preventive, Rehabilitation and Restitution.

Finally the Critical Theories of Law, which as understood by the name is a critical analysis

by various jurists of the legal methodologies, legal policies and the legal studies itself on the

whole. It began with the Legal Realism/Realist Movement which was inspired by John

Chipman Gray and Oliver Wendall Holmes and was carry forwarded by the works of Karl

Llewellyn, Jerome Frank and Felix Cohen.

The critical Legal Studies aims at expanding the interpretation of the ideologies which

contribute in shaping of the legal concepts and have a wider meaning for the legislature

which not only satisfies the professionals of law but also the profession of law and its

objectives.

This paper deals with the concept of Legal Positivism which is discussed under the Analytical

Jurisprudence. According to positivism theory, law is something that is prescribed, decided,

practiced and tolerated or in simple words can be called as a orderly constructed mould of

legal norms and aspects keeping moral values or ethics in mind. But in reality law is much

more than just moral values and ethics. Law is something that creates the ethics and keeps



moral values in check. That is, law influences society just as much as the society influences

law.

Legal Positivism has been a victim to various criticisms, misunderstandings and plagiarism

from the start of time. Though many jurists have attempted to define Legal Positivism, the

famous and renowned jurist of all time Sir John Austin, a legal philosopher who has made a

huge contribution to the legal world has left a prominent mark in this issue. He formulated

legal positivism as: “The existence of law is one thing; its merit and demerit 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.”3

He has though not completely justified the legal process, has given a simple yet glaring

meaning to the term Legal Positivism. The definition says that though the merits of law are

important and the peripheral to the philosophy of law, they are not the complete basis for the

existence of law.

MORAL PRINCIPLE AND AMORAL LAW

There has been a divorcement of law from morality since the rise of legal positivism. Even

though legal and moral codes are interrelated and overlapping, they are coincidental. Many

social actions are being outlawed by the government authorities and they are into smooth

functioning even if they're morally wrong.

The concept of Legal Positivism has been criticised at many levels on the basis that it does

not give morality the importance which it ought to be given. Legal positivism is a subject that

has drifted from the legal theory. Now a days, people are always looking for a practical

solution which has in abolished the initial divine and moral approach of law. Even though

years have been spent in trying to make man understand the moral values and principles, the

modern law systems are not intended to seek redemption from moral values.

The moral principles of law are nothing but "natural law" and natural law is an ambiguous

term. It claims to explain two independent theories i.e.; the moral theory and the legal theory.

Moral theory or morality in general is used to keep an eye on the role of legal norms, that is,

to determine the authors of the legal theory in practice. St. Thomas Aquinas, for example,

identifies the rational nature of human beings as that which defines moral law: "the rile and



the measure of human acts is the reason, which is the first principle of human acts". On this

common view, since human beings are by nature rational evenings, it is morally appropriate

that they should behave in a way that conforms to their rational nature. Thus, Aquinas derives

the moral law from the nature of human beings, thus "natural law".

As a response to legal positivism Ronald Dworkin proposed his so called "third theory".

According to law as integrity, proposition of law are true if they figure in or follow from the

principles of justice, fairness and procedural due process, which provide the best constructive

interpretation of the community's legal practice. Positivism is different from law as integrity

because it rejects consistency in principle as a source of legal rights. Positivism does not

consider the law as having an integral life of its own. Positivism will present the law as

comprising of a set of discrete decisions, which judges have the discretion to make or

amend.4

In the modern time, breaking law has become a trend due to their intolerance and lack of

patience. Malice, laziness, convenience, to name a few is some of the factors due to which

people break the law. Another not excusable but acceptable reason for why people break the

law is ignorance .i.e. people are unaware of their rights and are not informed about the

protections they can avail or are entitled to under the law. They are oblivious to the legal

norms and procedures that are available to them in the society.

But there are a few people in the society who are well aware that a certain act is morally

wrong and yet perform it since it is legally right. On the other hand there are cases where the

conflict between morality and law are questionable, for example, feeding pigeon is illegal in

some countries which are actually morally right. Here the conflict is illogical since there is no

real harm in feeding pigeons.

While this moral stance is generally a justification of and not the impetus for the illegal act, it

is nonetheless an example of the way in which people cast their relationship to the law in

ethical light. People in these circumstances break laws as a way of acting out against what

they see as governmental morality, and to make a statement of what they think is right.5

Positivists, as they call themselves have over the years come up with three main arguments

for determining the extent to which social sources are to be considered.

First, most of the vital and major decisions when it comes to legal aspect is taken with

reference to social morals. For example, while appointing a member of the judiciary their



legal knowledge is not the sole ground but also their morality and political background is

checked. Morality is a requirement and cannot be abandoned.

Second, although law claims to be perfect or as a legitimate authority it may fail at times by

being unjust, pointless and ineffective. Law cannot be called the ultimate legitimate authority

as it is influenced by political practices Consider an example. Suppose we agree to resolve a

dispute by consensus, but that after much discussion find ourselves in disagreement about

whether some point is in fact part of the consensus view. It will do nothing to say that we

should adopt it if it is indeed properly part of the consensus. On the other hand, we could

agree to adopt it if it were endorsed by a majority vote, for we could determine the outcome

of a vote without appeal to our ideas about what the consensus should be. Social sources can

play this mediating role between persons and ultimate reasons, and because the nature of law

is partly determined by its role in giving practical guidance, there is a theoretical reason for

stopping at source-based considerations.

Third, is the challenges underlying the idea of inclusive positivism or as it may be referred to

as The Midas Principle .i.e. just like everything King Midas touched turned into gold,

everything law touches becomes a law or enhances legality.

In other words it can be said that Law is an open normative system which adopts and

enforces moral norms and social policies to ensure social welfare and peace. But this idea can

also be used in a negative way as law is available to every citizen and every citizen has a

right to enhance the law and question the norms.

ADJUDICATION AND ETHICS

Adjudication has to be unbiased, just and should follow the regulations prescribed by law,

this is the usual criteria for a perfect judgement but there are certain exceptions that need to

be reviewed. The judges should have the knowledge and power to interpret the law in

accordance to the circumstances. And the law made, judgement given should have moral

values so that it is not biased, moral values doesn't need legal norms and legal norms doesn't

need moral values but there's a necessity for both of them to co-exist in the society in order to

recapitulate an issue.



While learning the concept of Interpretation of Statues it is clearly instructed that though the

judges don’t have the ultimate authority they do have a minimum jurisdiction or power to

interpret as required by the scenarios present before them. Certain crimes are so hideous that

it calls for a diversion from the actual meaning prescribed by law and adapt a new meaning.

Dworkin believes adjudication is and should be interpretive: "judges should decide hard cases

by interpreting the political structure of their community in the following, perhaps special

way: by trying to find the best justification they can find, in principles of political morality,

for the structure as a whole, from the most profound constitutional rules and arrangements to

the details of, for example, the private law of tort or contract" Ronald Dworki.6

There are, then, two elements of a successful interpretation. First, since an interpretation is

successful insofar as it justifies the particular practices of a particular society, the

interpretation must fit with those practices in the sense that it coheres with existing legal

materials defining the practices. Second, since an interpretation provides a moral justification

for those practices, it must present them in the best possible moral light. Thus, Dworkin

argues, a judge should strive to interpret a case in roughly the following way:

“A thoughtful judge might establish for himself, for example, a rough ‘threshold’ of fit which

any interpretation of data must meet in order to be ‘acceptable’ on the dimension of fit, and

then suppose that if more than one interpretation of some part of the law meets this threshold,

the choice among these should be made, not through further and more precise comparisons

between the two along that dimension, but by choosing the interpretation which is

‘substantively’ better, that is, which better promotes the political ideals he thinks correct.”7

Hart distinguishes three types of secondary rules that mark the transition from primitive

forms of law to full-blown legal systems: (1) the rule of recognition, which ‘specifies some

feature or features possession of which by a suggested rule is taken as a conclusive

affirmative indication that it is a rule of the group to be supported by the social pressure it

exerts’; (2) the rule of change, which enables a society to add, remove, and modify valid

rules; and (3) the rule of adjudication, which provides a mechanism for determining whether

a valid rule has been violated. On Hart's view, then, every society with a full-blown legal

system necessarily has a rule of recognition that articulates criteria for legal validity that

include provisions for making, changing and adjudicating law. Law is, to use Hart's famous

phrase, "the union of primary and secondary rules".



According to Hart's view of the Social Fact Thesis, then, a proposition (P) is legally valid in a

society (S) if and only if it satisfies the criteria of validity contained in a rule of recognition

that is binding in S. As we have seen, the Conventionality Thesis implies that a rule of

recognition is binding in S only if there is a social convention among officials to treat it as

defining standards of official behaviour. Thus, on Hart's view, "rules of recognition

specifying the criteria of legal validity and its rules of change and adjudication must be

effectively accepted as common public standards of official behaviour by its officials”.8

Each conflict is to be treated by considering the competing obligation and overlapping

framework of ethics and law. Adjudication is necessary and important, however, in the

current scenario along with adjudication there is a necessity for maintaining certain basic

ethics and principles which are vital to maintain social welfare.

Example: Riggs v. Palmer9, 115 N.Y. 506 (1889).

This is one of the important New York state civil court cases which involved the conflict of

adjudication and ethics.

In this case the plaintiffs Mrs. Riggs and Mrs. Preston, the daughters of the deceased sought

to invalidate their fathers will. The defendant is Mr. Elmer E. Palmer, the grandson of the

deceased/testator. The will of the deceased provided the two daughters with small legacies

and the grandson with a bulk of the estate maintainable by the mother, Susan till he attains

the age of majority.

Knowing that he was to be the recipient of his grandfather’s property, Elmer, fearing his

grandfather might change the will, murdered his grandfather by poisoning him. While a

criminal law existed to punish Elmer for the murder, there was no statute under either probate

or criminal law that invalidated his claim to the estate based on his role in the murder.

The Judge Robert Earl wrote the majority opinion for the court, which was in the favour of

the plaintiff.

Here, it is clearly see that though the law prescribed a punishment for his crime but it did not

in any way deny him his rights to the property. Hence, the judge interpreted the law in

accordance with the circumstances and found it unethical of the defendant to murder his own

grandfather out of greed. So, the plaintiff’s pleas were accepted hence barring him of his

rights on the property.



ETHICAL COMMITTEE IN INDIA

The two house of the Parliament are the Rajya Sabha and the Lok Sabha, and it has been

noticed by some of the members that there has been bias and irregularities amongst

themselves. And this bias has ceased the duty of some members and the execution by the

either half is purely for their own personal use and not for the welfare of the public. To

remove this chaotic environment, the house decided to form an ethics committee to regulate

the working of the members of the houses.

Rajya Sabha was the first among the two Houses to form an ethics committee, with a full

standing committee status, on 30th May, 1997. Lok Sabha, in contrast, formed an ad hoc

ethics panel in 2000 and has been operating as one until August 2015 when it was given a

permanent standing committee status. The ethics committee in the Lok Sabha has 15

members chaired by LK Advani, while the Rajya Sabha has 10 members chaired by Dr.

Karan Singh.

Ethics committees function to uphold the standards of the Parliament and thus its functions

are twofold:

Formulate a Code of Conduct for members and suggest amendments to it from time to

time.

To oversee the moral and ethical conduct of the Members

To examine the cases referred to it with reference to ethical and other misconduct of

the Members.10

The Ethics Committee of Rajya Sabha today recommended the expulsion of beleaguered

businessman Vijay Mallya with immediate effect.

“The committee was of the firm view that taking into consideration the gravity of the

misconduct, a sanction not less than termination of membership from the House is warranted

under the circumstances,” the Committee on Ethics said in its 10th report tabled in the Upper

House by its Chairman Karan Singh today.

“Having considered the whole matter, including Dr Mallya’s letter, the Committee on Ethics

unanimously decided at its meeting on May 3 to recommend to the House that Dr Vijay

Mallya be expelled with immediate effect,” it said.



“The Committee hopes that by taking such stern action, a message would reach the general

public that Parliament is committed to take such steps as are necessary against erring

Members to uphold the dignity and prestige of this great institution,” the report said.11

The Committee is empowered to act against any member of the Upper House if it concludes

that the said member has indeed violated the Code of Conduct. In such case, the Committee

can exercise its options to either sanction the member, reprimand, seek apology, suspend the

member for a specific duration, or impose any other form of sanction, as it deems fit. For

Rajya Sabha to uphold its reputation and democratic traditions, the Committee on Ethics

plays an important role in ensuring that all its members adhere to the Code of Conduct. The

public awareness for this important function within Rajya Sabha has increased with recent

events, and one hopes that the Panel will continue to guide all its members in maintaining

high ethical standards in times to come.12

The ethics committee of Rajya Sabha haven't been paid any attention until it took up the case

of Vijay Mallya. After the case of Mallya, the public began to recognise the working and the

regime of the committee and stated to send proposals that are to be reviewed by the

committee for the proper conduct of the country and its citizens. And this was the main aim

of the committee, to create a positive image on the committee which will be satisfactory and

beneficial for the society.

LEGISLATIVE ETHICS VERSUS POLITICS

Over the years, civilization has gone through major changes in all factors including

behaviour, knowledge, environment and also laws. The concept of laws that was initials

understood by people were the laws of human rights i.e. every person is entitled to be treated

as equal and that they have a dignity to protect and preserve.

In India, the concept of codified laws was brought in by the British’s which are now modified

and recognized as the legal system. Early the leaders were selected depending on the deeds

and behaviour of the person towards the general public.

Ethics and politics were inseparable during ancient times. The people needed a ruler who

governed with ethical values and an unethical king had no room for governance. Morality

along with ethics have been the hallmark for the governing body of our country since the



ancient times, but in the modern world ethics and morality has no say for the public. The

public prefer a more statutory and practical norms, which has in turn paved way for

corruption.

Politics, whose prime objective was to maintain peace and ensure social welfare has

deformed into disgrace. What was once a prestigious title has now become something so

trivial that it has become a competition, a run for the politicians to see who can better

convince the public to believe in them and later back out when the competition is completed.

The public too has stopped to respect and fear politics and its powers because of it been

infected by corruption. They have lost faith in politics and law to an extent that they no

longer care about who is their ruler or politician since they consider all of them to be the

same i.e. corrupt.

Corruption has become one of the highest rated crimes which have been left unnoticed. The

legislation even though he provided norms to prevent and eradicate corruption it's not in the

body the corruption lies in the authority of such body. In order to kill a virus, eradication of

the host is necessary and in this case the host is the ethical regime of the governmental

authority. A proper ethical regime should be formed in order for the authorities to have a

proper code of conduct and a system to administer that conduct. For the past few years, the

Indian political system has been functioning with this incurable disease, corruption. The fact

that there has been erosion of moral values in all walks of life cannot be ignored, and this has

to be taken into notice as it would affect the whole of the nation.

The Vohra Committee: A Precursor

It was in this backdrop and amidst alleged charges of corruption involving politicians and

general perception of criminalization of politics, that the government of the day appointed on

9 July, 1993, a Committee headed by Shri N.N. Vohra, the then Home Secretary,

Government of India, to take stock of all available information about the activities of crime

syndicates/mafia organizations who allegedly had developed links with and were being

protected by some Government functionaries and political personalities. The Committee after

considering the matter presented its report to the

The Government of India had laid it before both Houses of Parliament on 1 August 1995. The

report was discussed in the Houses of Parliament on 8, 23 and 24 August, 1995. The

Committee in its report, inter alia, pointed out that "the nexus between the criminal gangs,



police, bureaucracy and politicians" had come out clearly in various parts of the country. The

existing criminal justice system, which was essentially designed to deal with the individual

offences/crimes, was unable to deal with the activities of the mafia; the provisions of law in

regard to economic offences were found to be weak and there were insurmountable legal

difficulties in attaching/confiscating the properties acquired through mafia activities. The

report suggested setting up of a nodal agency under the Ministry of Home Affairs,

Government of India, to be handled directly by the Union Home Secretary, who would be

assisted by one or more selected officers of the Ministry for the collation and compilation of

all information received from different intelligence agencies. Subsequently, an All-Party

Meeting was held on 15 September 1995, under the Chairmanship of the then Union Home

Minister, Shri S.B. Chavan, to look into the whole gamut of criminal-politician nexus and the

related issue of declaration of assets and liabilities by the Members of Parliament and

Ministers. The points, which inter alia, constituted the agenda, were: 1. Setting up of a

Parliamentary Committee on Ethics as distinct from the Committee of Privileges which

would act as a guardian on the activities of members of Parliament.

2. Adoption of a Code of Conduct at the level of political parties to ensure a cleaner public

life, e.g., not to give party tickets to persons having criminal record.

3. All political parties should have open audited accounts which must be published annually.

4. Giving more teeth to the Nodal Group set up as a consequence of the recommendations of

the Vohra Committee Report.

5. Changes in the legal system, simplification of the procedure and dispensation of quick

justice.13

Ethics in governance is a topic that has been debated, researched and discussed since ages

now. The rampant corruption acts as a roadblock to good governance thus making

governance, as 2nd Administrative Reform Commission’s report on Ethics in Governance

says, the weak link in our quest for prosperity and equity. Elimination of corruption is not

only a moral imperative but also an economic necessity for a nation aspiring to catch up with

the rest of the world.14



As it was quoted by Era Sezhiyan, former Chairman of the Public Accounts Committee of

Parliament:

Members are elected to Parliament to represent the wishes and will of the people and to

exercise control over the government in all matters, financial, legislative and administrative.

Members of Parliament are not only makers of law, but also guardians of the rule of law. If

some lawmakers are found to have turned into law-breakers and if there is no check on such

breach of law and conduct, the people will lose confidence in the entire system of

parliamentary democracy and the rule of law will become a mockery.

The people look up to Parliament not only as an apex legislative body of the country for

making laws and supervising the government, but to lead them in times of crisis. The crisis

may be of a political, economic or moral nature. A political crisis may be controlled by

consensus and compromise; a financial crisis may be resolved by strenuous work and shrewd

rearrangement of priorities. But it will be very difficult to recover the dignity of the state and

the confidence of the people when there is deep moral bankruptcy.

When the executive is corrupt, the people can correct it through the ballot and through a

newly elected legislature. When the legislature is corrupt it is the end of the state. In his The

Spirit of Laws, Montesquieu asserted that the nation "will perish when the legislative power

is more corrupt than the executive."15

Politics, legislature, judiciary, executive etc. were all once the sanctuary of people. People

looked up to them for guidance, inspiration and considered them to be ideal leaders. But now,

in the present, looking at the pace at which the society’s ethics are diminishing that day is not

far when all will fall leaving nothing but ashes of regret demising all legal values and laws as

inappropriate and invalid.

APPLICATION OF ETHICS IN THE LEGAL PROFESSION

Every member connected to the legal profession has a paramount duty towards the legal

institutions or the courts and to ensure administration of justice. This duty they have towards

the court is superior to all their other duties, for example, if a client requests the lawyer to do

a certain activity which would degrade the honor of the court then they should not agree for

any such activity' since its against the moral values of the legal profession.



It is also the case that the lawyer has divided loyalties - owing a duty to the court while at the

same time owing a duty to the client. On occasions, these duties will be in conflict. In these

cases, the lawyer is obliged to fulfill his or her obligations to the court. This is not generally

understood by clients, or by some lawyers who carry the notion of the duty to the client too

far and engage in practices that are unethical and that go to defeat the interests of justice.

Making an allegation of fraud in circumstances where there is no evidence to support the

claim is an example. Other examples include deliberately delaying proceedings, perhaps in

order to force a settlement from the opposing client who is concerned about increasing costs;

or issuing writs without there being any proper legal or factual foundation.

There is a question which comes to mind when thinking about ethics in the legal profession

because people are made to believe that the lawyers have only one job and that is to win the

case of their client without considering the consequences it can have on the society. The

answers are as follows:

First and foremost concern is that, lawyers are integral to the working-out of the law and the

Rule of Law itself is founded on principles of justice, fairness and equity. If lawyers do not

adhere and promote these ethical principles then the law will fall into disrepute and people

will resort to alternative means of resolving conflict. The Rule of Law will fail with a rise of

public discontent.

Second, lawyers are professionals. This concept conveys the notion that issues of ethical

responsibility and duty are an inherent part of the legal profession. It has been said that a

profession's most valuable asset is its collective reputation and the confidence which that

inspires. The legal profession especially must have the confidence of the community. Justice

Kirby of the Australian High Court once noted:

The challenge before the legal profession....is to resolve the basic paradoxes which it faces-

To reorganize itself in such a way as to provide more effective, real and affordable access to

legal advice and representation by ordinary citizens. To preserve and where necessary, to

defend the best of the old rules requiring honesty, fidelity loyalty, diligence, competence and

dispassion in the service of clients, above mere self-interest and specifically above

commercial self-advantage.

Third, because lawyers are the officers of the court and have certain obligations towards the

court to serve for the administration of justice.



And finally because lawyers are a privileged class for only lawyers can, for reward, take on

the causes of others and bring them before the courts.16

Application:

1. Conflict of duties:

The areas which will follow or arise conflict of duties are Former clients, acting for more

than one party, practitioners own interest, when clients lie to the court or falsify documents,

when clients disclose they will breach a court order etc.

In a few words this can be summed up as follows:

First of all the practitioner should make sure that the interest of the court is given more

preference and the order of the court is a necessity that should be maintained. Then it is

necessary for the lawyer to be able to differentiate between what is legally acceptable or just

and what is not. While satisfying the clients, the lawyer should not forget his duty as a lawyer

and follow the rules and regulations prescribed.

2. Confidentiality:

The duty of confidence which a lawyer owes to a client can be based on various principles of

law. It can be regarded as an implied term of the retainer or contract, or it can be based in tort

as part of the duty owed by the lawyer to the client, or it may arise in equity.

Apart from these legal principles, the duty of confidence also gives rise to an ethical

obligation and thus a breach of client confidentiality would be grounds for disciplinary

action. There are exceptions, such as where the client consents, or where the lawyer is

compelled by law to disclose, or where the wider public interest requires disclosure. This last

exception is still inadequately defined. Furthermore, there remains the issue as to whether the

disclosure of a client confidence to the lawyer's spouse or partner should invoke either a

common law remedy or the disciplinary machinery for breach of a professional rule.

These are two major applications of Legal ethics when it comes to Legal professionals or

practitioners.



CONCLUSION

Throughout this study it has been observed that legal ethics is not given the importance or the

authority, or is not emphasized as much as it ought to be. As time went by, the term ethics

took up a whole new meaning i.e. ‘duty’ and ‘obligation’ diverting from its original meaning

i.e. ‘values’. Ethics is not just the fulfillment of duties or obligation but is also the

maintaining the values while working on them. Ethical judgment is indispensable from a

moral point of view, even if it seems to be eradicated from its position, positivism and the

philosophical values will still sustain.

The saying ‘by hook or by crook’ can be used as a reference for explaining ethics. The hook

method here is the ethical and fair means of completing a duty or task whereas the crook is

the unethical and unfair means of completing a task or duty. Legal positivists have always

faced enemity throughout the years, but when all other interpretations and regulations fail,

moral value and ethics come into play.

Legal Ethics enumerates what is the right or honorable way of performing a certain duty or

obligation. This quality is found to be missing among the citizens as well as the legal system

i.e. its members in the present scenario.

In search of easier means to achieve something people have gone to an extent where they

have no consideration for what their fellow people require and essence of humanity has been

deteriorating as time passes.

The strength or durability of a house is determined by its foundation, similarly the Condition

and status of a society is judged by the efficiency of its laws/legal system. If the Legal system

is perfect and non-questionable then there is no chance for any kind of abuse of power or

injustice or inequality, etc. And the backbone for the very legal system are the authorities,

and the authorities should retract from corruption and follow ethical positivism and moral

values for a better governance of law and its norms.

People need a moral guide to not only show them the right path but also protect them from

social evils acting as a safeguard. This moral guide is usually looked for by the people in laws

or the legal system which is said to be for the people, of the people and by the people.

As Potter Stewart has rightly quoted, “Ethics is knowing the difference between what you

have a right to do and what is right to do.” A practitioner who is considered the protector of



the innocent should first learn this difference and only then should they support or oppose a

cause or a case.

Hence, ethics is above law when it comes to humanity, peace and social welfare.



REFERENCES

1. “Philosophy of law”, Last visited on 20th September 2016,

http://www.iep.utm.edu/law-phil/

2. Dworkin 1977, p. 44

3. Austin, John (1832). The Province of Jurisprudence Determined. Ed. W.E. Rumble,

1995. Cambridge: Cambridge University Press.

4. “Law as Integrity”, Last visited on 20th September 2016,

http://theoryofjurisprudence.blogspot.in/2007/12/ronald-dworkin-law-as-

integrity.html

5. “The Amoral Law”, Last visited on 20th September 2016,

http://hypocritereader.com/2/the-amoral-law

6. “'Natural' Law Revisited”, University of Florida Law Review vol. 34, no. 2, pp. 165.

7. “'Natural' Law Revisited”, University of Florida Law Review vol. 34, no. 2, pp. 171.

8. H.L.A. Hart (1994), The Concept of Law, 2nd Edition (Oxford: Oxford University

Press) pp.92-113

9. Riggs v. Palmer, 115 N.Y. 506 (1889).

10. “Ethics Committees in the Indian Parliament”, last visited on 15th September 2016,

https://factly.in/parliamentary-ethics-committee-india-lok-sabha-has-new-standing-

committee-on-ethics-but-does-it-have-enough-teeth/

11. “Rajya Sabha Ethics Commmittee”, Last visited 16th September 2016,

http://indianexpress.com/article/india/india-news-india/rajya-sabha-ethics-committee-

recommends-expulsion-of-vijay-mallya-2783856/

12. “What is ethics committee of Rajya Sabha”, Last visited on 17th September 2016,

http://www.mapsofindia.com/my-india/politics/what-is-ethics-committee-of-rajya-

sabha

13. “Ethics Committee”, Last visited on 17th September 2016,

https://www.google.co.in/urlsa=t&source=web&rct=j&url=http://rajyasabha.nic.in/

rsnew/publication_electronic/ethics_committee.pdf

14. “Parliamentary action against Corruption”, Last visited on 20th September 2016,

https://palakmathur.wordpress.com/2011/09/07/cash-for-vote-scandal-and-case-of-h-

g-mudgal-1951-waiting-for-parliament-to-take-action/#more-1322

15. “Politics and Ethics”, Last visited on 20th September 2016,

http://www.frontline.in/static/html/fl1818/18180240.htm



https://palakmathur.wordpress.com/2011/09/07/cash-for-vote-scandal-and-case-of-h-g-mudgal-1951-waiting-for-parliament-to-take-action/#more-1322


https://www.google.co.in/urlsa=t&source=web&rct=j&url=http://rajyasabha.nic.in/rsnew/publication_electronic/ethics_committee.pdf


http://www.mapsofindia.com/my-india/politics/what-is-ethics-committee-of-rajya-sabha


http://indianexpress.com/article/india/india-news-india/rajya-sabha-ethics-committee-recommends-expulsion-of-vijay-mallya-2783856/


https://factly.in/parliamentary-ethics-committee-india-lok-sabha-has-new-standing-committee-on-ethics-but-does-it-have-enough-teeth/


http://hypocritereader.com/2/the-amoral-law

http://theoryofjurisprudence.blogspot.in/2007/12/ronald-dworkin-law-as-integrity.html

http://theoryofjurisprudence.blogspot.in/2007/12/ronald-dworkin-law-as-integrity.html



16. “The importance of ethics and the application of ethical principles to the legal

profession”, Last visited on 20th September 2016,

http://www.paclii.org/journals/fJSPL/vol06/8.shtml

BIBLIOGRAPHY

https://www.jstor.org/stable/4544450?seq=3#page_scan_tab_contents

http://plato.stanford.edu/entries/legal-positivism/#3

http://www.jstor.org/stable/4544450?seq=2#page_scan_tab_contents

http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?

article=2202&context=fss_papers

http://www.oxfordscholarship.com/view/10.1093/acprof:oso/

9780198299080.001.0001/acprof-9780198299080-chapter-12


http://ethics.americananthro.org/category/adjudication/

https://en.wikipedia.org/wiki/Riggs_v._Palmer

https://www.scribd.com/doc/316754082/Case-Summary-Riggs-v-Palmer

http://www.courts.state.ny.us/reporter/archives/riggs_palmer.htm


https://www.researchgate.net/publication/

11707228_Formal_and_informal_adjudication_of_ethics_complaints_against_psycho

logists


http://www.lsc.sa.gov.au/dsh/ch02s01.php

https://factly.in/parliamentary-ethics-committee-india-lok-sabha-has-new-standing-

committee-on-ethics-but-does-it-have-enough-teeth/

http://indianexpress.com/article/india/india-news-india/rajya-sabha-ethics-committee-

recommends-expulsion-of-vijay-mallya-2783856/

http://www.mapsofindia.com/my-india/politics/what-is-ethics-committee-of-rajya-

sabha

https://www.google.co.in/urlsa=t&source=web&rct=j&url=http://rajyasabha.nic.in/

rsnew/publication_electronic/ethics_committee.pdf

https://palakmathur.wordpress.com/2011/09/07/cash-for-vote-scandal-and-case-of-h-

g-mudgal-1951-waiting-for-parliament-to-take-action/#more-1322












http://www.lsc.sa.gov.au/dsh/ch02s01.php


https://www.researchgate.net/publication/11707228_Formal_and_informal_adjudication_of_ethics_complaints_against_psychologists




http://www.courts.state.ny.us/reporter/archives/riggs_palmer.htm

https://www.scribd.com/doc/316754082/Case-Summary-Riggs-v-Palmer

https://en.wikipedia.org/wiki/Riggs_v._Palmer



http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780198299080.001.0001/acprof-9780198299080-chapter-12

http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780198299080.001.0001/acprof-9780198299080-chapter-12

http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=2202&context=fss_papers

http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=2202&context=fss_papers

http://www.jstor.org/stable/4544450?seq=2#page_scan_tab_contents

http://plato.stanford.edu/entries/legal-positivism/#3

https://www.jstor.org/stable/4544450?seq=3#page_scan_tab_contents




Dworkin 1977, p. 44

Austin, John (1832). The Province of Jurisprudence Determined. Ed. W.E. Rumble,

1995. Cambridge: Cambridge University Press.

“'Natural' Law Revisited”, University of Florida Law Review vol. 34, no. 2, pp. 165.

“'Natural' Law Revisited”, University of Florida Law Review vol. 34, no. 2, pp. 171.

H.L.A. Hart (1994), The Concept of Law, 2nd Edition (Oxford: Oxford University

Press) pp.92-113

Riggs v. Palmer, 115 N.Y. 506 (1889).




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