-PROFESSIONAL ETHICS- PRESENTATION

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.

PROFESSIONAL AND LEGAL ETHICSProfessional 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 MORALITYModern 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

3. Applied Ethics-examination of controversial issues

with tools of meta & normative ethics.

META-ETHICSEthical values are either ‘other-worldly’

or ‘this-worldly’ creations.Issues arising in Meta-Ethics:a)Egoism Vs Altruismb)Emotion Vs Reasonc)Male Vs Female Morality

IMPORTANCE OF ETHICSIt 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

professionIt builds loyalty between the advocate and his

clientIt gives the lawyer a guide line on how to act in

cases of conflicts of interestIt Assists in the protection of fundamental human

interests like life, liberty and property

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.

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 RationalizationsThe 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."

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 ofTesting of competenceInstitutional trainingLicensed practitioners Work autonomy Code of professional ethics and conduct

Self regulationPublic serviceExclusionControl of remuneration and advertisingHigh status and rewardGranting of legitimacy

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 thoughtI. 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.

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

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’.

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.

• 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.