B. Kant and Cosmopolitan Moral Education

There are three broad themes which render Kant’s philosophy compatible with the teaching of professional legal ethics: Autonomy, moral education, and duty. The concept of autonomy underpins Kant’s moral theory. Prior to Kant, autonomy had been strictly a political term. He was, thus, the first philosopher to import this concept into ethics.^{Footnote 8} For Kant, morality can only arise from freedom.^{Footnote 9} Complete freedom is only possible where it is not influenced by “non-self-determined causes” such as external pressures, for example lawyer coercion, or internal causes, such as a person’s personal preferences or inclinations.^{Footnote 10} Freedom, in this strong sense, is autonomy of the will, as opposed to heteronomy, which is the subjection to any determination from either external or internal sources.^{Footnote 11} Thus, on Kant’s account and drawing on Rousseau,^{Footnote 12} subjection even to the will of God is heteronomy, not freedom.^{Footnote 13} The concept of autonomy can play an important role in legal ethics by reminding lawyers to treat clients as autonomous individuals and allowing them to reach their own decisions.^{Footnote 14} Heteronomy can also be a useful conceptual tool as it can direct lawyers to be cognizant of pressures affecting a client’s ability to make autonomous decisions, such as undue influence from a family member.

Moral education relates to Kant’s question: “How then, are we to seek [moral] perfection, and from whence is it to be hoped for?” His answer is: “From nowhere else but education.”^{Footnote 15} Although Kant’s educational theory is primarily aimed at children, its main tenets are applicable to legal education by virtue of the fact that his objective was to develop moral character:

Kant’s theory of education contains not only a cosmopolitan dimension but also shares a similar aim with professional legal ethics: The cultivation of ethical/moral character.^{Footnote 17} For Kant, education is either physical or practical.^{Footnote 18} The latter, which is relevant for present purposes, is concerned with cultivating personality,^{Footnote 19} and consists of skill, worldly prudence, and morality.^{Footnote 20} Skill, which is necessary for the cultivation of talent, must be “thorough and not superficial.”^{Footnote 21} Kant, however, does not define “skill.” According to Pring, skill is “the generic term for knowledge, understanding, mental capacity, practical competency, and interpersonal sensitivity, thereby blurring important distinctions.”^{Footnote 22} Adopting Pring’s definition, it can be argued that a thorough, as opposed to superficial, understanding of legal ethics requires studying law in a practical context. Worldly prudence and morality both relate to developing a “good character.”^{Footnote 23} The former, “consists in the art of using our skillfulness effectively, that is, of how to use human beings for one’s purposes.”^{Footnote 24} However, to engage in worldly prudence, self-control is necessary in order to avoid using others as mere means. In the context of clinical programs, it is almost impossible for students to develop into reflective practitioners without using the experiences of their clients/patients for their deliberations.^{Footnote 25} Some students might elect to take part in clinical education out of self-interest. There is, therefore, a risk that such students may use clients as mere means rather than ends in themselves. To militate against the mere use of others, Kant’s second formula—discussed in part F.3—can act as a moral constraint to prevent using others as mere means, and thereby facilitating self-control.

To develop one’s moral character, Kant writes, “[o]ne should give children some pocket money with which they could help the needy, and then one would see whether they are compassionate or not.”^{Footnote 26} Moral education, therefore, involves fostering compassion in students. Kant’s advice regarding giving children pocket money to nurture compassion may be interpreted to mean that he supports the idea of providing students with opportunities, grounded in practical experience, to develop their sense of compassion. Compassion, for present purposes, is defined as “the feeling that arises in witnessing another’s suffering and that motivates a subsequent desire to help.”^{Footnote 27} Compassion, therefore, promotes positive obligations to assist those who are suffering.

The concept of duty underscores the professional codes of conduct for barristers and solicitors, for example, duty of confidentiality, duty to avoid conflict of interest, and the duty to act in the best interest of the client. Kant’s educational theory involves instilling students with a sense of duty, which is divided into duty to oneself and duty towards others. The latter requires “[r]everence and respect for the rights of human beings.”^{Footnote 28} Kant argues that it is essential that students are given the opportunity to “put [reverence and respect] into practice.”^{Footnote 29} Thus, practice-oriented education is an essential element of Kant’s theory of moral education. The next section will examine the professional codes of conduct and highlights some of their limitations in relation to moral development.

C. The Professional Codes of Conduct for Barristers and Solicitors

The legal profession in England and Wales is divided into two main branches: Barristers and solicitors. Barristers are regulated by the Bar Standards Board (BSB),^{Footnote 30} while the Solicitors Regulation Authority (SRA) is responsible for the regulation and education of solicitors.^{Footnote 31} The BSB’s role includes setting out the education and training requirements for becoming a barrister and setting the standards for professional conduct in the BSB’s Handbook.^{Footnote 32} The Handbook includes the Code of Conduct, which contains the ten core duties (CDs) that underpin the BSB’s regulatory framework, and the conduct rules (rCs), which are designed to supplement the CDs. The codes of professional conduct for solicitors are in the SRA’s Standards and Regulations. These provide two codes of professional conduct: A code for law firms and a code for solicitors.^{Footnote 33} The Standards and Regulations also stipulate the seven Principles, which are “the fundamental tenets of ethical behaviour” which solicitors must uphold.^{Footnote 34} In the event of a conflict between the Principles, those that safeguard the wider public interest—Principles 1 and 2—take precedence over an individual client’s interest —Principle 7.^{Footnote 35}

In its 2018 report, entitled Balancing duties in litigation, the SRA warned solicitors that they are not “hired guns” whose only duty is to their client.^{Footnote 36} Solicitors also owe duties to the courts, third parties, and to the public interest.^{Footnote 37} The report highlights incidents where solicitors have engaged in improper or abusive litigation such as taking unfair advantage of unrepresented parties, misleading the court, or acting for clients whose cases are weak or unwinnable. The report also found that some solicitors pursued their own interests at the expense of their clients. KMC, with its commitment to autonomy and dignity, can address some of the concerns raised in the SRA’s report. Although the Handbook and the Standards and Regulations provide guidance on ethical behavior, they suffer from various limitations.

D. Teaching Professional Legal Ethics in England and Wales

At the time of writing, students who wish to qualify as barristers or solicitors must successfully complete three stages. The first involves the completion of either a law degree or the Graduate Diploma in Law (GDL).^{Footnote 49} This is then followed by a vocational programme: The Bar Professional Training Course (BPTC) for barristers, or the Legal Practice Course (LPC) for solicitors. The final stage is the apprenticeship: A one-year pupillage for barristers or working as a trainee-solicitor for two years.

Despite Economides and Roger’s recommendation to the Law Society that legal ethics should be mandatory in undergraduate law degrees, the teaching of legal ethics is not a compulsory part of the law degree or the GDL.^{Footnote 50} It is, however, included as part of the BPTC and the LPC, albeit in a limited way.^{Footnote 51} The teaching of ethics on the vocational courses is predominantly concerned with the application of the professional codes to hypothetical scenarios. Students, during the vocational courses, are assessed on whether their response to an ethical issue is one which is within the codes of conduct. Nicolson argues that teaching ethics at this stage is “too late” because students would have already been exposed to ethics, legal practice, and professional roles, albeit in an unstructured way.^{Footnote 52} Nicolson concedes that in the absence empirical research, it is difficult to buttress this claim.^{Footnote 53}

The separation between the teaching of law and ethics can be attributed to the pervasive influence of legal positivism, where students are taught to view law in technical terms and its analysis is carried out in a value-neutral manner.^{Footnote 54} In other words, students are taught that the law’s moral content is irrelevant.^{Footnote 55} This echoes Austin’s formulation of legal positivism: “The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry.”^{Footnote 56} Thornton refers to the teaching of law as a value-neutral autonomous discipline as “technocentrism.” She criticizes this pedagogic practice on the ground that it “focuses primarily on legal rules [and] creates a law school environment in which the technocratic is normalized.”^{Footnote 57} Despite modules which include socio-logical theories of law and feminist critique, legal formalism remains a dominant approach in undergraduate legal education and the vocational courses. Students are, therefore, taught that “thinking like a lawyer” entails “learning how to separate ‘legal’ issues from other types of issue (moral, political, or social).”^{Footnote 58} However, while moral values are seen as significant to moral decision-making, students may be led to believe that there is no necessary connection between law and morality.^{Footnote 59} Thus, absent from the teaching of legal ethics on the vocational stages are important concepts, which inform legal practice, such as autonomy, as well as academic critique of the dominant professional norms and the moral responsibility of lawyers. Crucially, the codes fail to effectively promote ethical sensitivity. The limitations of the formalist approach to legal education is highlighted by Sarat, who writes that law students “have learned little about encountering people in situations of stress and fashioning solutions to their problems in ways that are responsive to the human as well as legal dimensions of the problems.”^{Footnote 60} There is, therefore, scope for the teaching of legal ethics to be enhanced by engaging students with a philosophical framework that promotes moral decision-making through experiential learning. The next section examines key elements of Kant’s philosophy and theory of pedagogy and their significance to legal ethics.

E. Kant’s Deontological Ethics

Kant’s commitment to the concept of duty, irrespective of the consequences, makes him the quintessential deontologist.^{Footnote 61} Actions, for Kant, have moral worth when they are performed from a duty to the moral law. To illustrate this point, he provides the example of a grocer not overcharging his customers.^{Footnote 62} If the grocer’s honest actions were done out of self-interest and not out of a sense of duty to the moral law, then such actions are not truly moral in the Kantian sense. This strict test for determining moral actions can be seen in a second example provided by Kant: That of a person who is not inclined to help those in distress.^{Footnote 63} If this person performs an action benefitting those facing hardships out of duty to the moral law, then their action has moral worth. Conversely, one might help others because “they find an inner pleasure in spreading happiness…and can take delight in the contentment of others.”^{Footnote 64} Such actions are described as not possessing “genuinely moral worth.”^{Footnote 65} Although this might appear peculiar at first, on closer examination, why should a person’s moral worth be dependent on what nature or circumstances have endowed them with accidentally? Take for example a client with limited financial means who is being threatened with a notice of eviction. A lawyer may desire to help such a client because of subjective reasons, rather than out of duty to the moral law, such as a commitment to access to justice. This can be contrasted with a client charged with various criminal offenses and who is rude and aggressive towards their lawyer. One may be less sympathetic towards the criminal/aggressive client than the client being threatened with eviction. However, if out of duty to the moral law, the lawyer displays care and respect towards the criminal client, then their actions are said to have moral worth.

In his Metaphysics of Morals, Kant presents a taxonomy of duties which he divides into juridical duties and ethical duties.^{Footnote 66} The former can be coercively enforced by external means such as civil and criminal law. Juridical duties are not relevant for present purposes because the focus of this article is on the moral conduct of the individual as opposed to enforcing ethical behavior through external mechanisms. Ethical duties, on the other hand, must not be externally enforced, as this would violate the rights of the person coerced.^{Footnote 67} Certain moral endowments, such as the feelings of respect, self-esteem, and love for other human beings, are the “subjective conditions” of morality.^{Footnote 68} A person must constrain themselves to follow these obligations through their own reason and motives, established a priori from rational capacities.^{Footnote 69} Kant distinguishes between two types of ethical duties: Perfect and imperfect. Perfect duties, on the one hand, prescribe a specific type of prohibition/omission and do not permit discretion. Imperfect duties, on the other hand, stipulate only a general objective, they do not dictate the specific type of action by which that objective is realized.^{Footnote 70} Unlike perfect duties, imperfect duties permit discretion in their implementation. Kant provides four examples in relation to perfect and imperfect duties: (1) the duty to refrain from suicide; (2) the duty to abstain from making false promises; (3) the duty to develop our talents; and (4) a duty to help those facing hardships.^{Footnote 71} Duties (1) and (2) are perfect duties because they do no permit discretion. Duties (1) and (2) are also negative duties because they prohibit the stipulated actions. Duties (3) and (4) are imperfect positive duties, and unlike perfect duties allow for discretion in their implementation. For example, lawyers are able to fulfill their duty of beneficence (4) by taking part in pro bono activities. In relation to the duty of beneficence, Kant states, “[t]his is, however, merely to agree negatively and not positively with humanity as an end in itself unless every one endeavors also, so far as in him, to further the ends of others.”^{Footnote 72} A general duty of beneficence should be understood as a duty to engage in pro bono work to assist individuals and marginalized groups in the realization of particular ends they have freely set for themselves.

Kant’s duty to others is not confined to the imperfect duty of beneficence. He divides our duties to others “as human beings” into two categories, the duties of “love” and the duties of “respect.”’^{Footnote 73} Although he calls them “duties of love,” Kant does not mean that they are duties to have specific feelings towards others. Instead, these should be thought of as duties to act towards others in certain ways.^{Footnote 74} Failure to fulfil duties of love amounts to “lack of virtue.”^{Footnote 75} Thus, lawyers have a general duty towards clients regardless of how they may feel about them. This abstraction of specific sentiments towards others does not mean that students and lawyers should be discouraged from nurturing certain feelings:

Thus, students should participate in programs such as pro bono services and CLE to develop emotions such as sympathy and, as stated previously, compassion. Kant’s ethics, therefore, require students and lawyers to seek places where people are suffering and in need of help, not only to develop a sense of sympathy, but also to fulfil the duty of benevolence. The purpose of acquiring such attitudes is not “a duty to share the sufferings” of others; it is “a duty to sympathize actively in their fate.”^{Footnote 77} According to Kant, a person has a duty to “cultivate the compassionate natural (aesthetic) feelings in [themselves]” in order to “make use of them as so many means to sympathy based on moral principles and the feeling appropriate to them.”^{Footnote 78} Kant classifies “sympathy” into two categories. The first, “humanitas practica,” the capacity to share the feelings of others, is useful in terms of promoting the happiness of others.^{Footnote 79} The second type of sympathy, “humanitas aesthetica,” involves the sharing of other’s feelings but does not necessarily give rise to practical actions.^{Footnote 80} Thus, the former should be cultivated to promote the duty of beneficence in legal ethics. Sympathy is “one of the impulses that nature has implanted in us to do what the representation of duty alone would not accomplish.”^{Footnote 81} This can be interpreted to mean that sympathy can strengthen a lawyer’s duty towards others. Alternatively, Guyer suggests that what Kant has in mind is that individuals’ natural inclination to sympathy can act as a conceptual tool to direct what actions need to be taken to fulfill one’s “imperfect” duty of benevolence.^{Footnote 82} Wispé defines sympathy as “the heightened awareness of another’s plight as something to be alleviated.”^{Footnote 83} Thus, sympathy can serve as a mechanism for relating to others by giving rise to an affinity between two parties.^{Footnote 84} Developing a sense of affinity involves students imagining themselves to be affected by the same hardships as those affecting their clients and/or marginalized groups. Emotions, such as sympathy, can function as a “pair of moral eyes” that permit lawyers to see where their moral obligations arise.^{Footnote 85} However, Kant warns that sympathy can give rise to:

Those who are in a self-congratulatory state of mind may imagine themselves as so good-hearted that they do not require the “yoke’ of duty.”^{Footnote 87} In relation to duties of respect, namely those “duties to one’s fellow human beings arising from the respect due to them,” Kant has in mind obligations not to be arrogant towards others and not to defame or ridicule them.^{Footnote 88} The Kantian lawyer must be modest, dignified, and humane.^{Footnote 89} Even to clients who have been charged with or are guilty of serious criminal offenses.^{Footnote 90} Kant’s justification for imposing a duty of respect is that arrogance, defamation, and ridicule are “contrary to the respect owed to humanity as such.”^{Footnote 91} Failure to show respect owed to “every human being as such is a vice.”^{Footnote 92} According to Guyer, duties of respect are perfect rather than imperfect duties.^{Footnote 93} They are not only expressed as negative duties, in the sense they must be avoided, but also allow no room for “judgement or latitude.”^{Footnote 94}

Professional legal ethics can also be enhanced by drawing on Kant’s philosophy regarding the duty to engage in law reform. This duty is absent from the professional codes of conduct. According to Kant, citizens have the right to inform their governments of unjust practices that require reform.^{Footnote 95} This right suggests that states have a correlative duty to promote this right.^{Footnote 96} However, he does not explicitly argue that citizens have a duty to exercise their right to inform their governments of injustices and petition for redress.^{Footnote 97} This oversight on Kant’s part is immaterial because it is implicit in his theory of beneficence that a person has an imperfect duty to assist others. Moreover, given Kant’s cosmopolitan ethics, it can be argued that an English or Welsh lawyer’s moral right to inform a government of injustices is not restricted to the United Kingdom.

Kant’s commitment to duty to the moral law led him to reject consequentialist theories such utilitarianism. This raises the question of “How do we determine our duties to the moral law?” To answer this question, we need to examine Kant’s supreme principle of morality.

F. Kant’s Supreme Principle of Morality

Kant formulated the categorical imperative (CI) as the supreme principle of morality: “All imperatives command either hypothetically or categorically.”^{Footnote 98} The CI can be distinguished from a hypothetical imperative (HI). A HI can be expressed as follows: “If a person wills an end and certain means are necessary to achieve that end and are within his power, then he ought to will those means.”^{Footnote 99} A HI typically begins with an “If …” or contains an “if:” “If you want to do well in your law degree, then attend all your lectures.” On the one hand, the obligation to attend one’s lectures is dependent on the objective to do well in the exams and, hopefully, secure employment in a law firm. A CI, on the other hand, is an unconditional and binding command irrespective of whether it confers, directly or indirectly, any benefits. The CI is not tainted by any conditional desires. Instead, it simply commands “Do X and let the consequences be what they may.”^{Footnote 100} Although there is one CI, also known as “the imperative of morality,”^{Footnote 101} Kant puts forward various versions of it. The most common formulations are:

1. 1. “Act only on that maxim through which you can at the same time will that it should become a universal law”^{Footnote 102}

2. 2. Act in such a way that you always treat humanity, whether in your own person or in the person of another, never simply as a means, but always at the same time as an end.^{Footnote 103}

3. 3. A rational being belongs to the kingdom of ends as a member, when, although he makes its universal laws, he is also himself subject to these laws.^{Footnote 104}

Each of these formulae will be examined in the relation to the teaching of legal ethics.

F. Three Most Common Formulae

G. KMC and CLE

Unlike professional codes of conduct, CLE can act as a methodology^{Footnote 164} for bridging the gap between theory and practice.^{Footnote 165} CLE includes, but is not limited to, pro bono legal activities.^{Footnote 166} For present purposes, CLE incorporates a variety of experiential methods such as live-client clinics, Street Law, mooting, and client interviewing and counselling.^{Footnote 167} In general terms, experiential education involves connecting real-life to learning through the process of reflection.^{Footnote 168} Nicolson contends that live-client clinics are “an excellent and viable means of assisting in the process of moral character development.”^{Footnote 169} Although live-client clinics have an advantage over other forms of experiential learning, by virtue of the fact that students are dealing with “live” cases, KMC can be taught using any form of experiential learning because it is concerned with applying moral education in a practical context. In addition to promoting social justice^{Footnote 170} and developing reflective practice,^{Footnote 171} CLE can foster empathy and compassion because it “puts the emotional content back into law.”^{Footnote 172} The BSB’s Professional Statement for Barristers stipulates the need to demonstrate emphatic behavior.^{Footnote 173} A 2016 study demonstrated that formal training can increase empathy in adults.^{Footnote 174} The teaching of empathy can be incorporated into CLE programs by including the following four experiential elements: Classroom-based role play, self-reflection, situated learning, and acting in a manner that is responsive to the situation and the client.^{Footnote 175} Similarly, Kant’s duty of respect, compassion, and sympathy can be taught through CLE programs using the same four elements. Pence raised the issue of whether compassion can be taught in medical ethics in his widely cited article.^{Footnote 176} He concluded that compassion can be taught provided this virtue is taught alongside other medical virtues. The teaching of compassion can be incorporated into CLE programs, such as live-client clinics, where students are encouraged to develop their communication skills, self-reflection, and to take action, where feasible, to assist those who are suffering injustices.

CLE has also been said to act as a vehicle for ethics-focused learning,^{Footnote 177} inculcating students with human rights-based values,^{Footnote 178} and promoting moral decision-making.^{Footnote 179} CLE is, therefore, an appropriate vehicle for developing the values espoused by KMC. In the context of medical education, moral reasoning:

The benefits of moral reasoning can also apply to CLE and legal practice, as both the medical and the legal profession value, inter alia, the concept of patient/client care. However, professionals should not impose their personal opinions about a given situation.^{Footnote 181} Instead, they ought to depart from their personal frames of reference to achieve a better empathic understanding of their clients.^{Footnote 182} KMC, which rejects paternalism, can contribute to moral education by directing students to be attentive to any inclinations that may affect their decision-making.

In addition to rejecting paternalistic behavior, KMC also places a moral constraint on activities which use clients as mere means. In a CLE setting, KMC rejects treating persons, natural and legal, purely instrumentally for the purposes of achieving one’s own ends. In relation to law firms, as profit-making entities, there is a risk that some organizational practices may lead to clients being used as mere means, such as where lawyers receive cases they know little or nothing about.^{Footnote 183} Newman and Walsh warn that:

The above practices echo Hobbes’ remark that “the value, or worth of a man is, his price.”^{Footnote 185} KMC can serve as a rejoinder to Hobbes’ claim, regarding the worth of an individual, and can address neo-liberal practices that treat lawyers and clients as commodities with little regard for their autonomy. KMC also involves being cognizant of the client’s values and characteristics. The value of using experiential learning as a vehicle for teaching KMC is due to it being “universally effective as a structure and philosophy of teaching and learning.”^{Footnote 186} Although Kant’s work predated CLE, his philosophy and theory of pedagogy are relevant for present purposes due to his commitment to experiential learning and moral education.^{Footnote 187}

KMC can enhance CLE at both the local and global levels. Integrating KMC at the local level involves analyzing and interpreting the content of rules, such as the codes of professional conduct, through a KMC lens, which promotes compassion, respect, and highlights one’s moral commitment towards others. In the context of live-client clinics, KMC encourages students to place themselves “in the shoes of others”^{Footnote 188} and to take an interest in their culture.^{Footnote 189} This approach is based on a contextualized understanding of the client, which can prevent students and lawyers from viewing clients as “abstract people with predetermined traits.”^{Footnote 190} Instead, KMC draws attention to the fact that persons are “unique individuals with particular characteristics situated within a real world.”^{Footnote 191} Thus, when acting for a client, regardless of whether they fall within any of the protected characteristics found in the Equality Act 2010,^{Footnote 192} KMC requires the student/lawyer to enter into a dialogue with their client in order to “overcome the otherness in the other.”^{Footnote 193} This holistic approach allows the advisor to engage in a fact finding exercise to determine their client’s values and aims. At the global level, KMC’s cosmopolitan underpinnings create a moral responsibility towards persons in other jurisdictions.^{Footnote 194} KMC can be used as a framework for transnational collaborations^{Footnote 195} between clinics and non-governmental organizations. The pedagogic advantages of transnational collaboration include developing an awareness of injustices in other parts of the world and engaging in the law of other jurisdictions. An example of applying KMC to transnational collaboration is through law reform. There is currently an emerging body of literature which advocates for policy clinics.^{Footnote 196} KMC can be incorporated into policy clinics due to its commitment to law reform.

KMC, which views organizations as moral communities, can also develop professional legal ethics within a business entity. KMC requires law firms to be mindful of the fact that persons—this includes clients and employees—are ends in themselves and deserving of respect. Consequently, each member in an organization has a moral relationship to others. KMC can, therefore, act as a moral constraint against hierarchal organizational behavior, such as bonuses awarded to the partners only. The significance of a business entity being viewed as a moral community is that it involves democratization of the organization. This entails a reciprocal relationship between those in authority and employees. Consequently, a KMC framework involves critique and endorsement of the rules that govern employees in an organization.