2. ETHICS, MORALITY AND ETIQUETTE
• It’s hard to make a distinction between these three
terms because they are closely related.
• Morality is a differentiation of actions between those
that are right and wrong
• Etiquette is a code that governs social behaviour
within a society, class or group.
• Ethics is the philosophy of moral values.
Distinction between ethics, etiquette and morality
Difference between these three terms is that morality
defines our character, while ethics points towards
application of morality and etiquette focuses on
behaviour in a certain setting.
3. PROFESSIONAL AND LEGAL ETHICS
Professional Ethics is concerned with one’s behaviour
and conduct when carrying out professional work. It
is codified and varies across different cultures.
Legal Ethics is the standard of conduct within the
legal profession and is codified in the Advocates Act
(Chapter 16 of the Laws of Kenya)
INTRODUCTION TO ETHICS AND MORALITY
Modern times philosophers have divided ethical
theories into 3 general subject areas:
1. Meta-Ethics-origin of ethical principles
2. Normative-how we arrive at moral standards i.e.
right or wrong conduct
4. 3. Applied Ethics-examination of controversial issues
with tools of meta & normative ethics.
META-ETHICS
Ethical values are either ‘other-worldly’ or ‘this-
worldly’ creations.
Issues arising in Meta-Ethics:
a)Egoism Vs Altruism
b)Emotion Vs Reason
c)Male Vs Female Morality
5. IMPORTANCE OF ETHICS
It assists in availing legal representation to all in the
society.
It sets out the minimum duties of a legal practitioner
towards his client, the court and to his counter parts
in the profession
It spells out the minimum standards of practice.
Enhances public confidence in the legal profession
It builds loyalty between the advocate and his client
It gives the lawyer a guide line on how to act in cases
of conflicts of interest
It Assists in the protection of fundamental human
interests like life, liberty and property
6. It guides a lawyer on the best course of action when moral
issues are at stake
It promotes transparency and frankness between the
client and the advocate
It promotes integrity in the legal profession.
WHY ETHICS STANDARDS ARE FAILING ?
Case study of America – refer to article ‘ The Legal Profession
as a Blue State’
The modern conception of the lawyer as a hired gun and
thus affecting commitment to public good removing
ethical value.
The increasing influence of liberalism after Civil War in
the U.S.
Growth of empirical knowledge as the more dominant way
of establishing truth rather than influence of ethics in
virtue.
7. The embrace and promotion of the belief in the Majority
Rule.
Empirical approaches to jurisprudence that focused on
judges minimizing significance of lawyers’ role.(turned to
professionalism)
Liberal goal maximizing individual freedom.
The re-definition of ethics and public good by the bar to
legitimize the hired gun view.
Ethics Fallacies, Myths, Distortions and Rationalizations
The Golden Rationalization, or "Everybody does it"
The Gore Misdirection "If it isn't illegal, it's ethical.“
The Compliance Dodge.
The Biblical Rationalizations
The "Tit for Tat" Excuse
The Trivial Trap Also known as "The Slippery Slope."
8. WHAT IS A PROFESSION?
A profession as a vocation requiring advanced education
and training.
According to Roscoe Pound he defined profession as a
group pursuing a learned art as a common calling in the
spirit of public service.
Characteristics of a profession?
Skill based on theoretical knowledge
Professional association
Extensive period of
Testing of competence
Institutional training
Licensed practitioners
Work autonomy
Code of professional ethics and conduct
10. SOCIAL CONTRACT THEORY
What is a contract ?
A Social Contract is an ideology - that a person’s moral and
political obligations are dependent upon a contractual
agreement among them to form the society in which they live.
It tries to explain the relationship between individuals and their
governments
Various schools of thought
I. Socrates
In a conversation between him and his friend Crito, the social
contract denotes the agreement to stay in Athens and abide by
the laws and accept the punishment meted out .
II. Thomas Hobbes (1588 -1679)
Looked at the origin of a society, from the state of lawlessness to
the realization of the need of governance.
11. Humans are solitary, poor, nasty, short, harsh and
brutish. They were self interested and if left alone in
this state chaos will be inevitable and the absence of
rights prevented the formation of a society .
Existence of reason…
A social contract is therefore entered where the
citizens surrender their individual rights, instill a
person or a body of persons in authority and grant
them the power to enforce the contract, the citizens
then agree to be bound by certain rules and create a
mechanism that punishes breach of these rules –
absolute monarchy
12. III. John Locke(1632 -1704)
Accredited for his famous political writings e.g Second Treatise on
Government (1689)
Locke maintains on the equality of man before the laws of
nature, which are the laws of God that ascribe to morality-
existence of Natural rights
The government formed derives its legitimacy from its citizens.
IV. Jean Jacques Rousseau (1712- 1778)
His influential writing ‘The Social Contract’ did not approve of
a representative kind of Government.
He believed that liberty is found when the people wholly
participate in governance. He argued that the society did not
know their ‘general will’ denoted by his famous quote ‘man is
born free and is every where in chains’.
13. A contract that does not consider the interests of the
other party cannot be considered legitimate at all.
Applicability of the Social Contract Theory in Kenyan
Legal System.
Constitution 2010
(Article 1) of the Constitution-all sovereign power belongs to
the people of Kenya.
(Article 2 )states that Constitution is the supreme law of the
land.
The Bill of Rights (Chapter 4) enlists fundamental rights and
freedoms.
• Article 22 provides for the Enforcement of Bill of Rights.
• Article 23 gives courts the authority to uphold and enforce
the Bill of Rights
• Article 38 provides for political rights.
• Article 145 gives the National Assembly powers to remove
the president from power.
14. • Council of legal education
• S.6 of the Act establishes the objects and functions of
the council
• to control and exercise general supervision over legal
education in Kenya
• S.7 of the Act gives the council powers necessary to
expedient the performance of its functions.
The legal profession, like other professional
organizations, has codes of ethics to guide the
behaviour of their members.
a professional code is an agreement made by
members of a social group, who agree to obey the
rules of the contract because of a perceived mutual
benefit.
