Ethics and Excuses: The Crisis in Professional Responsibility

By Banks McDowell | Go to book overview

5
Defenses: The Legal Excuses

My principal interest is in excuses that are given in response to claims that the (professional) actor was unethical in some particular context. Unless one adopts the position that professional ethics are really law so that defenses rather than excuses would be the appropriate way to avoid responsibility, a discussion of legal defenses has relevance only in the ways it might shed light on how ethical excuses should operate. Legal defenses are not discussed here in great detail, but only those aspects raising important issues for ethics theory. Ethics in general and professional ethics in particular may learn both from the way legal duties are defined and then may be avoided by defenses.

Before discussing particular defenses, two important matters need clarification: (1) the way the elements of duty, breach, causation, damage, and responsibility interrelate with defenses, and (2) the relationship between the various legal sanctions that might be imposed and the likelihood a defense will be accepted.

Lawyers know that the overriding issue in litigation is legal responsibility. Their task during a trial if they represent the plaintiff (or the prosecution) is to establish responsibility; if they represent the defendant, to deny responsibility. The plaintiff's lawyer must establish the existence of the duty, the breach by defendant, damage to the victim, and a causal relationship between breach and damage. If necessary, the defendant introduces defenses. The secondary task of plaintiff's lawyer is to rebut any claims of legal defenses. The secondary task, and often the dominant task, of defendant's lawyer is to rebut the elements of duty, breach, damage, or causation.

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