The Functions of Discipline

The system of discipline is not generally concerned with compensation for victims. It arguably has two main functions; protection of potential clients, that is, the public in general, and promoting compliance with professional rules and standards.

A. Protection

There are usually some members of a profession who are a public danger. There has to be some mechanism for removing them from practice. This is often done on the basis that it is necessary in order to protect consumers or clients, or that it is necessary in order to protect the profession’s reputation and standards. This test is applicable to the issue of criminal convictions. If such convictions, for dangerous driving for exam­ple, do not suggest that a person is a risk in their professional capacity, disbarment should not necessarily follow. If conviction creates cause for doubt about whether the public is at risk, serious disciplinary sanctions should, logically, follow.

B. Exclusion

Professional discipline often involves the imposition of sanctions, which usually include exclusion or suspension from practice. This prevents consumers being sub­ject to further risk of exposure to inadequate lawyers. It is also a demonstration of several useful tendencies. It shows that a profession takes its role in public protection

³⁰ Abel (n 2) at 30.

³¹ M Burrage, ‘From a Gentleman’s to a Public Profession’ (1996) International Journal of the Legal Profession 45, at 57.

³² R Mortensen, ‘The Lawyer as Parent: Sympathy, Care and Character in Lawyers’ Ethics’ (2009) 12(1) Legal Ethics 1.

seriously, does not protect members who fail to meet its standards and is not afraid to be decisive.

C. Compliance

The machinery of professional discipline is typically operated by fellow professionals. This emphasises collective responsibility for the conduct of all fellow practitioners. Disciplined practitioners are therefore conscious of having failed in their trust and in their calling. Therefore, in a properly socialised profession, discipline operates as an effective control mechanism beyond the tribunal itself. The disciplinary process can be as much part of professional punishment as any sanction imposed.^[1253]

Disciplinary processes form the backdrop of practice, encouraging compliance in subtle ways. For most people, the emotions of shame or guilt are powerful incentives to compliance. Foucault observed that

[t]he web of discipline aims at generalising the homo docilis required by ‘rational’, ‘efficient’, ‘technical society’, an obedient, hard-working, conscience ridden useful creature pliable to all modern tactics of production and warfare... discipline thrives on ‘normalizing judgement’.^[1254]

If the aim of regulation is a profession observant of its rules, an effective disciplinary system is essential.

D. Deterrence

i. Avoiding Sanctions

The possibility of incurring a serious sanction, and suffering financial losses as a consequence, may operate as a deterrent to unethical behaviour. The imposition of a substantial fine or losing a licence to practise and being unable to work is an economic deterrence to professional transgression.

ii. Avoiding Guilt and Shame

Some cultures socialise individuals to experience guilt when they break social norms.^[1255] Others rely more on external sanctions inducing feelings of shame in the person subjected to them. The cultures of antiquity are identified as predominately shame cultures while those of Renaissance Europe, under Christian influence, tend to be guilt cultures.^[1256] The effectiveness of guilt as a control mechanism was undermined by the declining power of religion.

In the eighteenth century, the philosophy of Kant and, in the nineteenth century, that of Kierkegaard explored the philosophical foundations of morality.^[1257] Both emphasised the relationship of the self to the world. Kant argued that there was no source of good beyond the good will of the human subject. This compelled an indi­vidual to act from a duty to treat the rational agency of human beings as an end in itself and not as a means to other ends. Kierkegaard, likewise saw a sense of self as essentially subjective, grounded in self-reflection and introspection.

Later philosophers saw perceptions of morality as relative. There were, they argued, no universal answers to what is ‘good’, culturally, aesthetically or socially.^[1258] Nietzsche argued that moral judgements are no more than the means by which dominant social groups control others, ‘a creation of individual will in search of power’.^[1259] This required fresh thought on ‘the psychology of acting morally’.^[1260]

Industrialisation and capitalism continued to change people’s sense of self. Giddens suggests that, in modern society, mastery of the self has overtaken the motivation to be ‘moral’.^[1261] People construct their self-identity around a personal biographical narrative. In this way we, make sense of who we are and we avoid anxiety about personal adequacy.^[1262] There has been a growth in our sense of moral agency. We see ourselves as capable of making choices, taking responsibility for our behaviour and being able to give rational explanations for the way we act.

A feature of this transition from morality to self-identity is that shame has replaced guilt or fear as a motivation for compliance.^[1263] Shame operates in a very individual way. Psychological pressure to conform is only experienced when an individual feels that they have let themselves down by not conforming to their constructed self-identity. Therefore, it is arguable that, if we aim to effectively deter the disciplinary infractions of professionals, professional identity must be a part of self-identity.

IV.