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This chapter focuses on the role of law in the society. It further highlights justifications of law in preventing harm to others, offensive behaviour, preventing harm to self and preventing harm to societal morals. In this context, law is seen as an abstraction but at the same time it evidently highlights that law is a certainty created by legal professionals. Pollock says that legislators who pass new laws, prosecutors who decide who and how to prosecute and the judges who protect the inviolability of the process are all important in creating the reality of law (212).
The law acts as the moral agent of society. Legal moralism is the justification for law that allows for protection and enforcement of societal morals. The chapter argues there is no a legal system that completely overlaps our moral code, and it is likely argue that it would be impossible in a society as heterogeneous as the one we are in. At the same time many lawyers believe that loyalty is paramount to their duties as professionals. The chapter further highlights the paradigms of law. Within these paradigms, the consensus, conflict and pluralist paradigms have been discussed. These three paradigms can affect people’s view of law. The chapter indicates that paradigms are not bad or good, but instead they are a function of how the peoples mind work.
Through the consensus paradigm the chapter clearly articulates that society is a community which has likeminded individuals who agree on elementary issues to survive. The author thus says that within this paradigm law is a representative; a combination of do’s and don’ts that people agree on. Law in this paradigm reinforces social cohesion and also law is value neutral because it resolves conflicts in an objective and neutral manner. The chapter denotes that in conflict paradigm, society is made up of competing and conflicting interests hence supremacy is based on power. Pollock noted that within the conflict paradigm law is repressive in that it oppresses the poor and powerless by differential definitions and enforcement. On the basis of conflict paradigm, law is seen as a tool of the powerful because those who write the laws do so to promote their economic and political interests.
The pluralist paradigm holds that society is composed of competing interests and recognizes that the power balance may shift when interest groups for coalitions. The author indicated that pluralism views law as influenced by interest groups that are in flux. This section also highlights that law and social control constitute the public order and powerful interests affect the law by influencing the writing of laws and the enforcement of written laws. Pollock in his pluralist paradigm says that laws are written by the group whose voice is more powerful at any particular time (230).
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In addition, the chapter highlights that the basis of the principles used in law as legal and moral agent seems to be a combination of ethical formalism, utilitarianism and other ethical frameworks. Pollock says that some principles may seem impossible to uphold and may be subject to bitter criticism on the part of practicing attorneys (235). The chapter indicates that there are losers and winners in civil contests as well as in criminal law, and lawyers must realize their obligation when the loser is harmed in monetary and emotionally. More importantly, the chapter argues that decisions concerning justice and morality are so subjective that it is impossible for them to be judged after the fact. This is on basis that if lawyers were to act in the capacity of moral agents they would end up losing their clients.
While the Pollock explains the ethical guidelines for judges, the primary theme of judicial ethics is impartiality. As a result the author of the chapter says that judges must be careful to avoid financial involvements or personal relationships that may threaten their objectivity. Ethical issues have received more attention in the past years.
Discretion and Dilemmas in the Legal Profession
The chapter deals with the ethical issues for defense attorneys. In this context, Pollock highlights important areas such as the attorney’s responsibility to the client, conflict of interest, zealous defence and confidentiality. The chapter also deals with plea bargaining, media relations, expert witness and zealous prosecution. From the chapter, it can be noted that those people who can afford private attorneys get better representation. The ethical issues attached to attorney’s execution of their mandate further entail that there must be equal consideration (Pollock 251). As far as conflict of interest is concerned, a defense attorney should not permit his or her professional judgment or duty to be affected by his or her own political, business, property or personal interests. Pollock says that in order to avoid conflicts of interests, attorneys should not represent two clients who have opposing interests (251). Even though attorneys may not ethically accept clients with conflicting interests there is guidance on the more abstract problem.
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In this chapter confidentiality in the criminal justice system plays a very important role. Pollock highlighted that the ethical duty of confidentiality prohibits an attorney from disclosing to any individual or using one’s own gain, information about one’s client obtained through the attorney client relationship (253). The author thus says that confidentiality is inherent in the fiduciary relationship between the client and the attorney, but more important is that the client must be able to expect and receive the full and complete assistance from his or her lawyer.
The chapter further highlights that in the context of plea bargaining a prosecutor should not knowingly make false statements or representations as to fact or law in the course of plea discussions (Pollock 263). However, Pollock warns that if the goals of the system are the protection of individual rights and protection of due process, plea bargaining is much harder to justify (Pollock 263). On the other hand if the goals of the system are crime control or bureaucratic efficiency then plea bargaining makes sense. In addition, Pollock says that prosecutor’s ethical issues with plea bargaining detail whether or to overcharge, to get someone to plead or to lie about how much evidence there is. While emphasizing on the importance of attorney’s to observe ethical considerations, the chapter ascertains that most decisions do not generate public controversy, but rather each decision to prosecute starts with a prosecutor choosing whether and how to pursue charges against suspected offenders (Pollock 263).
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Pollock argues that expert witnesses have gained popularity in the recent past. Ethically a prosecutor who engages an expert for an opinion should respect the independence of the expert and should not seek to dictate the formation of the expert’s opinion on the subject. The author refers zealous prosecution as the duty of the prosecutor is to seek justice, not merely to convict (Pollock 276). In this context, Pollock says that prosecutors may be excessively ambitious in order to attain a conviction. This chapter further highlights that both defence attorneys and prosecutors sometimes engage in tactics such as using witnesses with less than credible reasons for testifying. The major ethical dilemma is that prosecutors can make deals to reduce charges in return for favourable testimony.
The chapter further notes that judges face ethical issues. In relation to this Pollock says that judges are expected to be impartial, knowledgeable and authoritative (281). The author also says that judges should guide the prosecutor, defence attorney, and all the other actors in the trial process from the start to the end (281). Judges should help in maintaining integrity. In line with their duty, the chapter illustrates that judges have an awesome responsibility in sentencing offenders and yet they receive little training to guide their discretion. Pollock in this chapter argues that judge’s decisions are based on personal standards because no consistency seems to appear between the decisions of individual judges in the same community.
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