TEACHING MORAL CHARACTER

The concept of moral character, as the expression is used here, is concerned with the ability to see the ethical action through to completion. The emphasis is not on disposition or inclination to act ethically, as that has been the focus of the discussion of moral motivation. However, the fact that the word ‘character’ can mean either general disposition for action, or the ability to see a course of action through, is an indication of how close these two aspects of a person are.

Someone who lacks character might be described as irresolute, or ineffectual, or weak, or cowardly. There is a close relationship between confidence in one's goals and moral character. The more salient the goal is to the actor the less salient is the risk of something going wrong. The more one contemplates the risks of action the less likely one is to act. Contemplation of danger can make one irresolute or cowardly. The more clearly one is sure about what to do, the more likely one is to act. Confidence in purpose allows one to act resolutely.

Clearly, if one is sure of one's priorities, if one is wholehearted and committed to one's relevant life projects, then it is more likely that one will act effectively. Moral motivation is likely to lead to moral character. Indeed Colby and Damon found this to be true of their moral exemplars. As a group these people were notably confident, and not overly distressed by the thought of risk:

Th is book is published at a time of some turmoil in legal education in England and Wales. Since the Legal Services Act 2007 and changes in the regulatory environment there has been a series of reports and consultations that have prompted legal academics to refl ect upon what they are doing and why. The focus has been on ‘legal services education and training’ with a regulatory concern for the interests of the public as lawyers’ clients at its heart. Many views have been expressed. However, one argument which has emerged virtually unchallenged from this process is the need to develop undergraduate students’ ‘understanding of the relationship between morality and law, the values underpinning the legal system, and the role of lawyers in relation to those values’ (LETR Report, Recommendation 7). Th is book makes a signifi cant contribution to the debate as to why and how this needs to be done. Th is observation should not be taken to suggest that the book is primarily concerned with preparation for practice. It is not. It is concerned with legal education as a liberal academic education which uses law as its central discipline. Th us it should prepare students for their lives, whether as lawyers or otherwise.

Graham has identifi ed a number of values which have informed his practice as a legal educator. One which is barely articulated in the book is transparency. It suff uses the book through the very open way in which he presents underlying principles and the rational processes that have led him to them. In so doing he articulates a number of other values which I found hard to resist.

Pluralism is key to his approach to education. Th is involves respect for difference and an openness to frank debate. But we live in a hierarchical world where students’ self-determination can become perverted by their desire to get through the assessments and thus to meet externally-imposed goals. So another key value is self-determination achieved through relationships that are co-operative rather than manipulative. Th is has implications for overall curriculum design as well as how the individual teacher works with students.

These, perhaps, are the key values of education.

It has been recognised that teaching legal ethics should not be restricted to teaching legal professional codes of conduct, but that it oft en is so treated when legal ethics form part of a compulsory curriculum. As Deborah L. Rhode writes:

However, this emphasis on the cognitive and theoretical itself has been criticised as too narrow.

In this chapter and the next the broader aspects of ethics are the focus of attention – those components of effective moral action characterised as moral motivation and moral character by Rest. It is probably in this area of ethics, the area that impinges most upon the personal morality and identity of students, that anxiety about the proper limits of academic action is most acute. It is also in this area that detailed knowledge of professional codes is irrelevant except as illustrative material. It is in this area that an undergraduate degree designed to support the personal identity development of students is most clearly justified in educational terms. Finally, the systemic impacts of legal education are likely to be important in this area, as a failure to support students in developing an ethical set of priorities invites the adoption of unethical values by young people.

TEACHING MORAL MOTIVATION

To be morally motivated is to care about some moral or ethical value more than other values that are present in some situation. In this context ‘values’ mean anything that someone treats as having value.

It is important to remember that the four-component schema for ethical action is an analytical construct. It may not reflect psychological causality, nor a sequence of events in practice. A particular risk of distortion comes from our cultural narratives of moral heroism. In the words of Samuel and Pearl Oliner:

Th is chapter will discuss several misconceptions about the teaching and learning of moral judgment. It will then consider the use of the dilemma as a teaching and learning tool in the development of moral judgment. Moral judgment as the term is used here will be synonymous with the term moral reasoning. We are concerned with how people think about ethical aspects of life and behaviour.

Five ideas will be subject to critical review. The idea that moral judgment is not founded upon ordinary reasoning – that there is any distinction in kind between the reasoning that is used in ethical discourse and the reasoning that is used in other types of reasoning. The idea that ethical or moral reasoning is in some way radically subjective and therefore is incapable of leading to robust conclusions or progress. The idea that moral reasoning or moral judgment is merely a capacity for ex post facto rationalisation of actions taken for other reasons, whether ethical or non-ethical, and is therefore not causative. The idea that professional ethics must be ‘categorical’ and that this is because they are ‘ethics’ and that such is characteristic of ethical reasoning. Finally, that the assessment of moral reasoning poses no peculiar problems, because it is the assessment of a cognitive process and understanding just like any other subject matter – and is no more problematic than assessing the understanding of section 1 of the Law of Property Act 1925.

FIVE COMMON MISCONCEPTIONS

IS MORAL REASONING DIFFERENT FROM REASONING?

The first misconception is founded in a prejudice in favour of formal logic as a model for reasoning. Ethical reasoning is fundamentally about action. It is therefore in this respect un-reducible to premise and conclusion. Ethical reasoning is about both why one acts and the consequences of one's acts. However, the importance of each type of consideration is disputed. Ethical discourse is, therefore, subject to radical re-framing of the issues, and no demonstrable and conclusive argument is plausible for many ethical disputes. Ethical reasoning is about the ‘rightness’ or ‘wrongness’ of actions.

Chapter 1 was concerned with the values academics and educational institutions should bring to higher education generally and legal education specifically. It argued that a concern to align education to the interests of students was a primary ethical duty. Chapter 2 tried to demonstrate why the responsibility for such alignment could not be left to the market, via consumer choice, and why we had good reason to suppose law students are unable to thrive under our current system. Hence, suggesting that we need to consider how to re-align legal education with the interests of students in the common law world. This chapter tries to identify generally acceptable legal values that can be used to inform legal education. Obviously, the lack of any unitary value system in modern society makes this task more difficult. Two types of value are sought below.

First, I try to identify values that can be used to evaluate legal systems. These are substantive values that must be justifiable from a perspective outside the legal discourse. Values that are wholly internal to the legal system risk collapsing into self-congratulatory rationalisation of the law and legal practice. However, internalisation of values should not debar them from being used to evaluate the system; it would be self-defeating to oppose the adoption of valid criteria of evaluation because they were being used by the system being evaluated.

Second, I try to identify values generated by the legal system. Specifically, I consider values generated by the intermediary nature of law and legal practice. These values are likely to reflect the wholly internal criteria of excellence that the discipline recognises. They inform legal educational practice already. The nature of the links between system value and educational practice are oft en poorly articulated. An attempt is made to explore why and how educational practice can and does recognise these values.

Thus, the focus of this chapter is not subject matter. It is not concerned with the substantive law, or legal processes, or legal problems to be studied. Although the matters dealt with may suggest specific topics for study this is not the purpose of the discussion. The problem is to identify external and internal sources for values, and to identify the values that these sources provide.

The duty of an educator of children to impose educational practices based upon his conception of the best interests of the children in his care can be justified by the inability of the children to know their own best interests. Immaturity entails inability to judge. Obviously, this argument has more or less force at different times and in different circumstances. An educator in higher education is dealing with adults, people who can be assumed to know what their own best interests are. Therefore she cannot justify her action in imposing her educational practice upon the immaturity of her students. There are obviously other justifications for the power of the educator to determine the curriculum and educational practice of higher education. However, the dissimilarity from educational practice in schools raises two possible arguments that need to be considered, and that are familiar from institutional educational discourses. First, we are involved in adult education so we should respect the choices of students as adult consumers. Second, we are educating adults so we should be able to assume the students can look out for his or her own self-interest. Each argument attempts to shift responsibility from the educator, at institutional or at individual level, to the people being educated. Hence each raises the question: is it the duty of educators to care what is in the best interests of students?

This question is fundamental to the ethics of educators in the tertiary sector. Higher education does more than educate individual students. It is the site of research activity, it transmits cultural values, and it provides apprenticeships for the scholarly disciplines. Legal education also provides support for professional practice, and plays a regulatory role in the legal services market. Higher education is an important economic activity, and plays an important role in legitimising social status and supporting social mobility. These are important and legitimate concerns for those active in tertiary education. It is far from straightforward or simple to determine what might be in the best interest of students. Therefore it is tempting to shift this responsibility onto the students’ shoulders. This chapter attempts to explain why this temptation should be resisted.

This book moves from the general to the specific and from the theoretical to the illustrative. Hopefully, it also manages to keep the general and theoretical grounded in practical concerns with illuminating examples; and to keep the illustrative more than merely anecdotal but truly illustrative of more general concerns. Th us, it is both theoretical and anecdotal throughout. Nevertheless, the centre of gravity shift s as the book progresses.

Part I is the most general or theoretical of the three parts that make up the book. It attempts to frame the evaluative task and set up aspirational values for practice in legal education. Within Part I itself there is a narrowing of focus. Chapter 1 is concerned witheducational values; chapter 2 with ubiquitous contemporary arguments as applied to legal education; and chapter 3 with the values that might hope to be generally agreed upon as fitting for legal educational practice.

Chapter 1 addresses the values of those who educate. It is addressed to academics generally as well as legal academics specifically. It is addressed to institutions and support staff as well as to academics. The modern university is a collective enterprise, and the duties on educators must fall across institutions; we must try to avoid the moral blindness of compartmentalisation of role in the workplace. One central value is critical openness: a value-informed higher education must operate within a pluralist frame of reference. The specific values argued for include a respect for truth and clarity in expression, but also awareness of the importance of university for students as a place where they form their personal identities. Emphasis is given to trying to identify and serve the needs of the students as people, despite the din from voices asserting a legitimate, if not determining, interest in higher education in general and legal education in particular.

Chapter 2 is short and limited in scope. It tries to explain why the language of ethical duty, or fiduciary care, is appropriate in adult education. Modern public discourse is dominated by the claims of the market to resolve most if not all public concerns.

This book is a book about the uses of values in legal education. The primary concern is with legal education as an educative enterprise. This leads to a focus upon the development of the student of law. The first value articulated, and indeed endorsed, is that educational practice should be aligned with the interests of the law student first and foremost. Therefore, the focus of this book is the impact of legal education upon the law student.

An alternative approach to legal education is to make alignment with the demands of the profession or society the primary task of legal education:

We will return to competing ideals for legal education below. For now it is sufficient to note that this view comes from North America where law school delivers a three-year full-time post-graduate programme, and there is no further professional stage (such as the Legal Practice Course or the Bar Professional Training Course) nor any compulsory work based apprenticeship stage (such as the Training Contract or Pupillage).

Although this book has wider concerns than just the undergraduate law degree (the LLB) in the UK, and freely uses evidence from other sources, the undergraduate degree is the institutional background to the book. This is because it is the area where the author has most experience. Therefore, the default law student is an undergraduate at a British university reading for a degree in law.

The value of alignment advanced here is not empty, and could be contested, as indeed it is by some concerned with professional education specifically.

INTRODUCTION

To be able to place the findings of the previous Chapter in the light of disaster response, the framework as described in the first Part of this research will be included. This allows to see the obligations found for article 2(1) in the broader context of obligations on accepting humanitarian assistance. The three steps of the legal framework are the primary role of the affected state, the initiation or triggering of international humanitarian assistance, and the acceptance of international humanitarian assistance. The obligations of article 2(1) are placed in this framework to see how much room individual state parties receive to fulfil their obligations individually and when article 2(1) prescribes that states must look for international assistance and cooperation. As the last step, it will be considered how article 2(1) sets standards on accepting international assistance.

Apart from placing the findings of the previous Chapter in the light of disaster response and applying them on the substantive rights of the ICESCR, this Chapter will address a question that has remained unanswered so far. In Chapter II it was explained that derogation from human rights obligations is possible during the existence of a ‘state of emergency’, at least under the ICCPR. Before looking at disaster-specific obligations for state parties to the ICESCR, it would not be superfluous to first establish to what extent state parties to the ICESCR may derogate from their obligations in (post-) disaster obligations. Section 2 will provide an answer to this question. Next, in section 3, the findings of the previous Chapter will be considered in the context of disaster response resulting in an overview of the general obligations that states must adhere to immediately after a disaster. With these results, the rights to housing, food, water and health will be analysed in section 4 to find out whether any concrete standards can be identified that dictate the behaviour of state parties in the response to a disaster.