Litigation is like war. Easy to start. Hard to end. Difficult to know how it will turn out.
In Fighting Fair: Legal Ethics for an Adversarial Age, legal scholar Allan Hutchinson argues that military ethics should be applied to legal ethics. He points out that merely looking to the laws themselves is not enough for evaluating ethical behaviour. The laws take their shape because of lawyers. “The clients they represent, the causes they advocate and the strategies they deploy all influence the law’s content and substance.” The law often grows in a way that “today’s frivolity may be tomorrow’s law”. Once derided as absurd, the concept becomes tenable and then eventually accepted as law. Furthermore, just because something is the law today does not mean it is right, as evident by the laws of Nazi Germany.
The sobering truth is that the discursive resources and frameworks for evaluating the ethical merits of military action are much richer and more sustaining than that of legal ethics.
The main thrust of military ethics is that any and all violence in war must be justified. There are five conditions for a just war. They are:
- a just cause;
- rightful intentions (not simply to recapture something and not motivated by hidden / ulterior intentions);
- proportionate – there is more good to be achieved than the harm to be done by waging war;
- it is the last resort; and
- there is a reasonable chance of success.
The abiding objective of entering and waging a just war is to achieve a just and lasting peace, not a punitive and temporary victory. Accordingly, the goal of military action is not simply to win, let alone crush the enemy, but to work toward a future situation in which war will no longer be a possibility between the parties. It is considered that this cannot be achieved unless the victorious side negotiates a settlement that is fair and reasonable to both sides…. Any remedy achieved must be commensurate with the wrongful or transgressive conduct that gave rise to the hostilities in the first place…
[T]he negotiator’s primary duty is to be fair and forward-looking… Ethical lawyers will work toward settlements that are reasonable and defensible… In both military and legal ethics, it is paramount obligation to act both discriminately and proportionately. Indeed it is the ethical signature of the warrior as opposed to the hired gun to be both a good winner and a good loser.
Like a just war, lawyers should promote just lawsuits, using proportionate force to achieve their ends. These ends should be directed to a lasting peace and not to an ulterior motive.