Questions Answered

For June 2014

  • What are the legal ethics underlying conduct followed by law courts and lawyers practicing in them?
  • What is the origin of the concept of  “private property”? How does this effect the morality of “labor” and “work”?

Question: In recent years, there has been a lot of discussion about the morality of law courts.  Can you give me some pointers as to legal ethics in the conduct of court cases? What, for example, are the duties of lawyers?

Answer: The moral obligations for those who participate in trials are covered under the eighth commandment, which specifically says: “Thou shalt not bear false witness against one’s neighbor.” Obviously, the procedure by which justice is prosecuted must be governed by the virtue of justice, which regards telling the truth. All court officers have a duty to safeguard justice according to the manner in which jurisprudence is practiced in a given society. In this column, I will only treat lawyers as there is quite an extensive literature on this subject.

A lawyer is one who undertakes to present a case for litigants in court. This is true of both the prosecutor who stands for the state, and the attorney who stands for the defendant. He does this by both offering opportune advice, and by actually arguing the case, either orally or in writing, according to custom.  As a result, he must have the requisite knowledge to carry out this duty, and he is duty bound to read his brief, and not leave this task to others. If he argues cases without the requisite knowledge, he can damage his case, in which either the people or the defendant are not justly served. In the United States, bar exams tend to remedy for this requirement, though, of course, the lawyer must keep apprised of changes in the law.

The lawyer has three duties: first, he cannot undertake a case without proper knowledge; second, he cannot defend a case unless it is just, because otherwise he will bring unjust harm on the accuser; and third, he cannot defend a case except using moral means. If he uses immoral means, then he exposes himself to the danger of harming both his client and the other party.

In civil matters, the lawyer cannot accept a case he knows to be unjust. If he wins, he has unjustly harmed the truth of the one who brought the suit; whereas if he loses, he has caused his client useless expense. Because of this, if he discovers during the trial that the case is unjust, he must resign from it, and notify his client. If the case is doubtful, however, he may argue it because this is the reason trials, in civil matters, exist. A cause which is doubtful before trial may become clear during the proceedings. If the doubt remains, the lawyer may participate in a friendly settlement. But if the cause is certainly unjust, he cannot, in conscience, do this.

In criminal cases, things are different. A lawyer can justly defend an accused person, even if he knows he is guilty, because of the laws of jurisprudence of contemporary society. Currently in law, an accused person is presumed innocent, and the burden of proof is on the accuser. Each defendant is normally assigned a lawyer to argue his case by the state if he cannot afford one.  For this reason, such a case is just, not by reason of the fact that the defendant did not do the crime, but by reason of the fact that a defendant has a right to representation. Today, the common good requires that each defendant be able to argue his case correctly. He cannot use unjust means.  He also cannot defend an accuser if he knows that the accused is innocent.

In the Middle Ages, St. Thomas Aquinas required that the accused should answer a judge  directly when questioned, and should not lie. This would amount today to the accused confessing and throwing himself on the mercy of the court. This moral teaching corresponded to the manner in which justice was prosecuted in that society. In contemporary jurisprudence, the accused is perfectly within his rights to plead “not guilty,” even though he knows he did the crime, and does not lie in doing so. A plea of “not guilty” simply places the burden of proof on the court, and so a lawyer may justly undertake to defend him.

In both civil and criminal cases, the lawyer is bound to professional secrecy about things which would impede his case; and in criminal cases, can even deny knowledge of facts he knows, without lying, in the same way that the accused can plead “not guilty.” He cannot, however, justly use dishonest means to present his case, nor lies, because then he would be acting against the truth. So he cannot fail to produce documents necessary to decide the case, nor threaten witnesses, inside or outside of court. He cannot substitute fraudulent documents for those which have been lost. If the lawyer has unjustly brought harm to his client in any of these ways, he is, in justice, bound to make restitution.

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Question:What is the origin of private property, and how in general does this affect the morality of labor and work?

Answer: The ethics of the workplace is rooted in the Christian doctrine of wealth and property.  Many people are often puzzled to read the teachings of the popes on this subject, as they seem to contradict both capitalism and Marxism. This is a correct impression. To understand the doctrine of wealth taught in the Gospels, one must have reference to the foundation of man’s ability to work.

In Genesis, after the creation of inanimate beings, man is created, blessed by God, and told to: “Be fruitful and multiply, and fill the earth and subdue it; and have dominion over the fish of the sea, and over the birds of the air, and over every living thing that moves upon the earth” (v. 28).  By this command, God demonstrates the sovereignty of man over material nature, which is based on the fact that human beings are both spirit and matter. This dominion, though, is not a radical ownership which permits man to do whatever he likes with material creation, but establishes a participated stewardship in which man must respect the laws of God in using material things.

The principal use of this participated dominion over material things is shown in the ability to work. Man must work because he needs material goods in order for his body to survive, and also to pursue a virtuous life in his spirit through virtue. He would have worked before the sin. Yet, because of grace, his work was not possessive of the earth, and did not violate God’s law by injustice and avarice, and so his work was not toilsome.  After the sin, as he is without grace, he manipulates the earth as though he possessed exclusive dominion, and the earth resists this manipulation for power. Man now hears: “Cursed is the ground because of you; in toil you shall eat of it all the days of your life; thorns and thistles it shall bring forth to you … In the sweat of your face you shall eat bread until you return to the ground…” (Gn 3:17-19).

Man possessed material goods, and needed them, before the sin, but as he was not possessive, each was given according to his need, and the earth was shared by all. This universal destination of goods corresponds to the way God created things as right. “The goods of creation are destined for the whole human race” (CCC§2402). After the sin, with the experience of possessiveness, and desire of power by avarice, it became necessary to guarantee that each be given according to his need, by the sanction of property. This was a result of human reason, thinking on how to guarantee that each would have what he needs to live a human life. It is called the Ius Gentium (the Right of Nations). This is a part of the natural law, but one viewed in light of things human beings do not share with animals, and which are the result of human thought and positive law.  There is no particular reason, in itself, why one piece of property should belong to one person, rather than another. But in regard to developing that property for the common good, one will use it better than another. “In his use of things, man should regard the external goods he legitimately owns, not merely as exclusive to himself, but common to others also, in the sense that they can benefit others, as well as himself” (Gaudium et Spes, 69, 1; CCC §2404).

Property, then, is a natural right. This is against Marxism, which is a materialistic and determinist philosophy which basically teaches that man is a cipher of matter. Marx was not against property because he thought it was immoral. He was against it because he thought it was anachronistic. Property was a necessary stage in the development of matter and the means of production. Once this occurred, though, it must be left aside by violent revolution of the classes to destroy all class and ownership and foster the unbridled growth of matter.

On the other hand, property has an individual, but also a social, dimension. One possesses it, not only for what one can attain for personal use, but also to develop for the good of others. This good is shown in either the goods and services such a use can provide for society, or in the just wages one can reap from these goods and services for BOTH one’s own family, and the families of one’s employees.

The payment of a living family wage, then, is not a gift on the part of the employer, nor should it be determined by the law of supply and demand. Since work is a human action, which passes from the soul to matter, the value of work must, at the very least, respect the fact that it is done by a human being made in the image and likeness of God. This is regardless of the work done.

Here, Catholic doctrine stands directly against an extreme view of liberal capitalism, in which supply and demand is the only law. “The ownership of any property makes its holder a steward of Providence, with the task of making it fruitful and communicating its benefits to others, first of all his family. Goods of production—material or immaterial—such as land, factories, and practical or artistic skills, oblige their possessors to employ them in ways that will benefit the greatest number … Political authority has the right and duty to regulate the legitimate exercise of the right of ownership for the common good” (CCC 2406; GS, 71, 4; SRS, 42; CA 40,48).

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avatar About Fr. Brian Mullady, OP

Fr. Brian T. Mullady, OP, entered the Dominican Order in 1966 and was ordained in 1972. He has been a parish priest, high school teacher, retreat master, mission preacher, and university professor. He has had seven series on EWTN and is the author of two books and numerous articles, including his regular column in HPR, "Questions Answered".

Please send your questions to:
Fr. Brian T. Mullady, O.P.
375 NE Clackamas St.
Portland, OR 97232
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Comments

  1. avatar Harvey B. says:

    This statement really intrigued me:
    “In contemporary jurisprudence, the accused is perfectly within his rights to plead ‘not guilty,’ even though he knows he did the crime, and does not lie in doing so.”

    I’d really like to hear more about that, and why it is not lying. From what I can tell, Fr. Mullady is saying that it isn’t a lie because the accused is not literally saying “I’m not guilty,” but is instead using those code words to invoke a legal procedure (trial) which he has a right to.
    But I still don’t get it — if I know I did a crime and force the state to go through an expensive trial to expose something that I already know to be true, how is that not deceptive?

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