Zadok Paper S95 Autumn 1998
Ethics and the Adversary System
by Ken J. Crispin

Christian influence and ambivalence

In earlier years such questions were readily answered. Legal ethics like legal principles were based largely on biblical precepts. St Paul appeared to invest secular authorities with the role of being God's agents of punishment.18 The oath was important because it exposed perjurers to divine punishment while proof by ordeal involved an appeal by the participating priests for God to reveal the truth.19

Similarly, the Norman innovation of trial by battle was based upon the assumption that God would determine the judgment.20 The peine forte et dure (literally, "severe and hard punishment", to enable a confession) was also seen in terms of its religious implications. For example, a report of the case against the hapless Robert le Ewer in 1322 notes that even if the accused was pressed to death this was "healthy for the soul, provided he bore it with resignation".21 The newly emerging system of justice based upon trial by jury naturally absorbed this religious ethos.

The Christian Church fathers, notably Augustine of Hippo and Thomas Aquinas, had a significant impact on naturalist legal theory stressing that temporal law, or lex humana as Aquinas described it, is subordinate to the eternal law of God.22 The earliest English lawyers were also churchmen and the early writings on the common law all had a strong religious flavour.23

Blackstone, in his famed commentaries, conceded the supremacy of "divine law".24 Lawyers were enjoined to find their professional duty within the context of Christian morality. Even the renowned Erskine, in the course of prosecuting the publishers of Paine's Age of Reason, was heard to say: "The people of England are a religious people and, with the blessing of God, so far as it is in my power, I will lend my aid to keep them so."25 Lord Eldon went further, actually proclaiming that "Christianity is part of the law of England".26

The concept of role morality became increasingly difficult to accommodate within existing dogma and advocates were exhorted to follow proper moral standards. Thomas Aquinas had written that an advocate who defended an unjust cause unknowingly "is excused according to the measure in which ignorance is excusable" but that he who knowingly defended an unjust cause "sins grievously".27 St Germain cautioned that an advocate "may give no counsel (saving his oath) neither against the law of God nor the law of reason",28 while John Cook added the necessary sanction: "to speak well in a bad cause is but to goe to Hell . . ."29 Others, such as Thomas Arnold plainly concluded that advocacy was simply an immoral calling. In 1840 he wrote to a former pupil who had obviously flirted with a legal career:

Your letter gave me such a deep and lively pleasure that I could scarcely restrain my joy within decent bounds, for to see any man whom I thoroughly value delivered from the snare of the Law as a profession is, with me, a matter of the most earnest rejoicing . . . so I should rejoice in your escape whilst it is yet time, and following the right hand path to any pure and Christian calling which, to my mind, that of an advocate, according to the common practice of the Bar, cannot be, and I think that scarcely any practice could make it such . . . for advocacy does seem to me inconsistent with the strong perception of truth and to be absolutely intolerable, unless the mind sits loose, as it were, from any conclusions, and merely loves the exercise of making anything wear the semblance of truth which it chooses for the time being to patronise".30

Despite such abjurations barristers remained acutely conscious of the Christian mores of the times and their speeches reflected an acceptance of the fact that all involved in the legal process were ultimately accountable to God. Of course, individual lawyers may still be guided by religious conviction but in a modern pluralistic society biblical authority no longer determines the formulation of ethical standards by the profession as a whole.31 What then is to fill the void?

To: The hope of moral philosophy

Ken Crispin QC, who was for 25 years a barrister, is currently a Judge of the Supreme Court and is Chairman of the ACT Law Reform Commission. This paper draws on his P.h.D. thesis, entitled "Ethics and the Advocate".