REVISITING THE ETHICS OF LAW

Abstract

In this article, the main approaches to the understanding of the subject and the peculiarities of the ethics of law are considered. An attempt is made to defi ne the specifi cs of the ethics of law in the broad context of the relation between morality and law. Th e key issues and challenges for the investigation of the institutionalized form of professional legal ethics are identifi ed. Th e reasons are given why the equation of applied legal ethics with professional legal ethics is not justifi ed. We argue that the subordination of law to morality as well as the formal rational interpretation of the law leads to the destruction of law. Subsequently the particular characteristics of legal ethics, which pose vital requirements on personal professional competence, are identifi ed and the concept of “legal culture” is analyzed. Reasons are considered why reliance on the moral aspect of professional work in the fi eld of justice becomes one of the essential conditions of its legitimacy. We describe the circumstances that interfere with professional activity, namely an individual’s diffi culty resolving the collision between determining the scope of how one is permitted to act and the right course of action, a disposition to moral relativism, and practical problems that do not have certain clear moral solutions. Th e contradiction between law and morality can take the form of confl ict. We argue that normative consent in society is important for practices sanctioned with the help of law. Th is article also provides a methodological analysis of the basic philosophical problems that arise at the junction of morality and law (the so-called problem of the relationship between morality and law and the concept of the law as the minimum of morality, guaranteed by the state). Also the problem of the conceptual relation of morality and law in the social conscience as well as the question of the possibility of the legal restriction of citizens’ rights and freedoms for the sake of some moral ideal are scrutinized. Likewise the possibility of legal regulation of morals and moral reeducation using the legal arrangements are drawn into question. Th e role of the discussions between the “natural law” and “positive law” approaches should be taken into account. We argue that the theoretical extremities of both jusnaturalism and legal positivism can complicate the relations of morality and law in professional activities. In this paper, we suggest the use of the concept of “normative gap” that should be distinguished from the confl ict of law. Th e article explains the idea that ethics of law with the “normative gap” as its subject matter will provide the moral content and secure the value of law. Refs 4.

Keywords:

Legal ethics, ethics of law, legal professional ethics, lawyer ethics, morality, law, natural law, positive law, normative gap