ETHICAL EGOISM IN THE RING OF GYGES

  Jaba Shadrack, 2009

 

"Suppose now that there were two such magic rings, and the just put on one of them and the unjust the other; no man can be imagined to be of such an iron nature that he would stand fast in justice. No man would keep his hands off what was not his own when he could safely take what he liked out of the market, or go into houses and lie with any one at his pleasure, or kill or release from prison whom he would, and in all respects be like a god among men. Then the actions of the just would be as the actions of the unjust; they would both come at last to the same point. And this we may truly affirm to be a great proof that a man is just, not willingly or because he thinks that justice is any good to him individually, but of necessity, for wherever any one thinks that he can safely be unjust, there he is unjust. For all men believe in their hearts that injustice is far more profitable to the individual than justice, and he who argues as I have been supposing, will say that they are right. If you could imagine any one obtaining this power of becoming invisible, and never doing any wrong or touching what was another's, he would be thought by the lookers-on to be a most wretched idiot, although they would praise him to one another's faces, and keep up appearances with one another from a fear that they too might suffer injustice".

As a young Advocate, your client tells you that he had discovered he is HIV – positive from a botched injection by his doctor. He requests you to negotiate a settlement on his behalf. Negotiations proceed quickly and the doctor's Advocates seem willing to settle for a sizeable amount of
Tshs.200,000,000/= Shortly before you finalize the settlement, the client informs you that he has had a second medical examination, which has revealed conclusively that he is not HIV –positive. He insists, however, that he still wants you to continue the negotiations on the basis that he is HIV – positive and to take the settlement as offered. He actually tells you "...What they don't know won't hurt them and since we are together in this we shall split the funds settled half/half."

What should you do considering the duties of an advocate to his client, the Court and the public? Would your opinion be any different if you ascribe, on the one hand, to the traditional image of a lawyer as a Hired – Hand (Hired – Gun?); or, on the other hand, you ascribe to the current image of a lawyer as a Civic – Campaigner.

QN: 1. Argue for or against ethical egoism in Glaucon's Ring of Gyges.

QN: 2. On the basis of Glaucon's thesis (above), answer the HIV-hypothetical case.

18^TH JUNE, 2009.

Question 1

Glaucon's formulation as to egocentric is a cardinal philosophical outlook of man that asserts self-interest as a valid end of all conscious action. For instance, power seeker may wish to persuade others that they are moral in the accepted sense of the term in order to mask their power motives and to gain the ordinary rewards of morality. This dogma approach to human behaviour is known as egoistic-hedonism. It is said to originate in cyrenaics school of thought in ancient Greece under aristippus, who postulate self-pleasure as a human want. Thomas Hobbes in his Leviathan (1651) derives the rules of human behaviour from the law of self-preservation and thus justifies egoistic action as the natural human tendency. Further, the sophist and Protagoras taught that human judgment is subjective, and that one's perception is valid only for oneself.

Immanuel Kant asserts that, i quote;

"No matter how intelligently one acts, the results of human actions are subject to accident and circumstance; therefore, the morality of an act must not be judged by its consequence, but only by its motivation. Intention alone is good, for it leads a person to act, not from inclination, but from duty, which is based on a general principle that is right in itself".

My stance is that ethics or virtues are either inborn or acquired through ones education thus, regardless of the power or the situation one is placed in, once a man is virtuous whether is visible or invisible, the end result of his action is justice. This is justified as follows;

First, in every human being lies a certain standard of what is right or wrong. In most cases people tend to obey their intra-personal intuition notwithstanding, the aspect of being invisible. The consequence of denying the force of what is just, is summarily stated by Cicero that such man will suffer the worst penalties, even if he escapes what is commonly considered punishment.

Second, human beings are guided by situation ethics, that is, moral decisions and the circumstances evoking them are unique and unrepeatable. This is opposed to casuistry. The Stoic school led by Zeno agrees that because life is influenced by material circumstances one should try to be as independent of such circumstances as possible.

Third, people will be virtuous if they know how virtue is, as distinct from vice and evil. Thus when reason rules, behaviour is expected to result from rational thought. In my view, people are just because they are just, and others are unjust because they are unjust. However, a just person may act unjustly, and the unjust act justly, or each stick on his position and act as such throughout and constantly. That is why; there are some human conducts either good in themselves or good because they conform to a particular moral standard and vice versa.

Fourth, there are people who have proved as selfless indeed and believed in just and died or suffered considerably for holding or furthering those values for the betterment of all. This is exemplified by the late mahatma
Gandhi, Martin Luther King Jr., Socrates, Ibrahim Lincoln and such others. Thus whether visible or invisible otherwise one having the power of the Ring of Gyges, men of such inclination may decide to follow a final value (i.e. summum bonum) which is desirable in itself, and not merely as a means to an end.

Fifth, according to David Homes and Adam smith, the ideas of morality, justice and public interest originate in feelings of sympathy that individuals bear toward one another even when not bound by kinship or other direct ties. Thus in that regard, even where a person is given powers of the Ring of Gyges is more likely to prioritise the welfare of the society than his.

Conclusively, the problem of just or unjust (good of evil) in each individual is a struggle between the drive of the instinctual self to satisfy all its desires and the necessity of the social self to control or repress most of these impulses in order for an individual to function in the society. Therefore, in line of the above premises, i denounce accordingly the Glauconian thesis of ethical egoism, and thus take such argument as a mere dream-argument shying from reality. This is because, just (good) is an essential element of reality. Just (evil) does not exist in itself but is rather, an imperfect reflection of real, what is just (good).

Question 2

In that circumstance as a young advocate, i will be thrown upon a sea of conflicting moralities, properly so to call, moral dilemma, with no compass by which i may legitimately choose to follow or reject.

The focal question in that scenario will be, 'should either my or that of my client's view of morality prevail over the other in deciding what to do?' or 'what practical alternatives are available to me (as an advocate)?'

As between the court, client and public, my ethical approach will be the same, in that i will have a mediating role, however giving more stress on the public interest.

Generally speaking, my position will not change even if i ascribe to the traditional image of a lawyer as a hired-gun or the current image of a lawyer as a civic campaigner.

With regard to the traditional image of a lawyer, which impose the autonomy of the client, and that the lawyer should act according to the client's interest and instructions and not otherwise i.e. the duty of partisanship. This kind of advocacy has come to be known as robotic-lawyering (adversarial advocacy or casuistry advocacy), whereas a lawyer put first the client's interest by all means.

However, adversarial advocacy has some limitation, one of which is where the instruction of the client if strictly adhered would lead to violation of the law or is contrary to public interest. Thus, in this regard, even if i act as an adversarial advocate thus, i cannot proceed to negotiate the unfounded claim of 200,000,000/-, since, prima facie, amount to a misdemeanour.

Therefore, the aspect of being invisible can never impair my decision and thus succumb to the whim and wishes of unscrupulous client. In my conviction, i submit that, there is a leeway to follow which is just and best for the client's reputation, mine as a lawyer, court, public and adverse party.

In an English case of Finers v. Miro, the court held that where a lawyer subsequently discovers that they have been unwittingly used by their clients to perpetrate a fraud or some other wrong doing. Thus, the lawyer may disclose these facts to the victims through a court order; otherwise a lawyer may find himself in perjury dilemma or professional misconduct, which is fatal to himself, and the legal profession generally.

In the Canadian case of Descoteaux v. Mierzwinski, the court was quoted to have said that, "communications that are in themselves criminal or that are made with a view of obtaining legal advice to facilitate the commission of a crime" are not privileged and need not be held in confidence by a lawyer.

Thus, it follows from the above argument that even in traditional image of a lawyer; one should not knowingly make a misleading statement to the court or any other forum for the furtherance of client's misdemeanour.

On the other hand, if i decide to act as a civic campaigner, my stance will be clearer and i will stick to what is just. Prof. Hutchinson and Prof. Rice Andrews provide a more detailed works respectively, on this position. However, with due respect, i highly prefer the approach taken by Prof. Christine Parker, and Prof. Adrian Adams. To them, the current image of a lawyer (which i highly subscribe) may be reflected in three approaches, as follows;

First, the lawyer as a civic campaigner is responsible to make law work as a fairly and justly as possible. In that regard may need to act as a gatekeeper of law and advocate of legal system against client. Thus, the lawyer becomes an officer of the court and trustee of the legal system. To them, this kind of a lawyer is a responsible lawyer (responsible lawyering).

Second, as civic campaigner, a lawyer may opt to act as an agent for justice through law reform, public interest, lawyering and client counselling. Thus, a lawyer should do good according to general theories of ethics, whichever theory the individual lawyer find attractive. David Luban, the advocator of this kind of lawyering says;

"....client counselling in turn means discussing with the client the rightfulness or wrongfulness of her projects, and the possible impact of those projects on the people....it may involve considerable negotiation about what will and won't be done in the course of a representation..........it may eventuate in a lawyer's accepting a case only on condition that it takes a certain shape or threatening to withdraw from a case if a client insists on pursuing a project that the lawyer finds unworthy...".

The followers of this approach of lawyering argue that a lawyer is not confined by the idea of justice set out in the legal system, instead it contemplates that the legal system may need to be changed to become more just, and that lawyers may have a responsibility to do so. This kind of advocacy is known as moral activism lawyering.

Third, the emphasis is placed on the integration of personal ethics with legal practice. To put it in a nutshell, in a course of lawyering, the lawyer must focus on his responsibilities to the people, communities and relationships. Carol Gilligan, an advocator of this approach, argues that the goal of lawyer-client relationship should be the moral worth and goodness of both lawyer and client, or at least the nurturing of relationship and community; this approach is called, ethic of care (relational lawyering).

Conclusively, because i am a follower of altruism, thus as between a role of a lawyer as a hire-gun, or civic campaigner, i will prefer the latter to the former (i.e. responsible, moral activism or ethics of care lawyering). This is because, it concedes with my ethical conviction. 

Thus, in the said hypothetical case, i will not take the money because of first; it will amount to furtherance of a misdemeanour (fraud) contrary to the law. Second, the public interest is worthier since such sum of money may be directed to the expansion schemes of the hospital rather than paying unfounded claim (demand). Third, to maintain the image of my profession as a legal practitioner, and finally, to honour my duty to the adverse party that is, to ensure that he is treated fairly and justly in the circumstance. Therefore, where a man is virtuous, whether is visible or invisible the end result of his action of deed is justice.

Money and power does not mean everything, thus virtues and peace that reign in ones soul is crucial.