Law & Society

Noble professions – what they are and what they are not

One morning, the president of the local bar association (advocates association) visits the shop of the president or the barbers association for a routine hair dress. The advocate settles down in the swivel chair of the barber and the following conversation ensues:

Barber: “All professions are noble and the barbers profession is no exception – isn’t it so, sir”

Lawyer: “No – No All professions cannot be noble and even if they are, some are nobler than the others. The legal profession is the noblest of all professions.

A doctor, who is waiting for his turn in the shop, intervenes and proudly claims, “ The medical profession is the noblest of all professions. All other professions are either not noble or less noble than ours.”

Another customer of the barber, who happens to be client of the lawyer and the patient of the doctor, shouts, “Please stop making tall claims. None of you is noble as all of you charge your fees”.

The above conversation reflects the general impression of professionals and the general public of the concept and character of noble professions each of the former claiming that he alone represents a noble profession while the general public is sceptical or confused. In this article I attempt to make a thorough investigation into the question, with special reference to the legal profession, as I am a member of the said profession.

The dictionary meaning of the word “profession” is any calling or occupation other than commercial, manual, etc. involving special attainments or discipline, such as editing, music, teaching, etc and the word “Noble” is ‘Lofty character’. Nobility, for the purpose of this analysis,· [footnote]consists of acting contrary to one’s self interest with a view to benefit others towards whom one has no special affection. If a person, being disgusted with his life commits suicide, he is acting contrary to self-interest, but as he is not benefiting anybody, his action is not noble. Similarly, if a person spends a fortune in securing good education to his brother or son, he is benefiting some one towards whom he has special affection and his action cannot be termed noble. . Again, nobility should signify something that is distinct from mere “utility” or “notability”. Below is the list of various activities some of which contain elements or traces of lofty character while the others have abominable traits, listed in descending order;

1. CHARITIES

2. NOBLE PROFESSIONS

3. PROFESSIONS AND BUSINESS

4. BEGGARY

5. CRIMINAL ACTIVITIES

1. CHARITIES;

A practitioner of charity confers benefit on others with out expecting any price or reward. Any charity is therefore lofty in character and noble. While it is natural for most men to act mostly out of self interest most of the times, the practice of charity is unnatural and difficult, while the beneficiary gets the benefit with out paying an equivalent price. An industrialist who spends his millions on an educational trust, a professional who extends his service free if cost, a grocer who doles out a fist-full of grain to a beggar, a pedestrian who tosses a coin at a leper., all display charity at different levels. GIVE, TAKE NOT is the motto of charity. Charity is an activity and not a profession

In practice, only exceptionally fortunate and kindhearted men can practise charity. Even when it is practised t he society may be ungrateful and blame the practitioner as being motivated with selfish purposes such as saving income tax, winning popularity etc

Politics is to be taken up as a charitable activity. Career politicians cannot be expected to act like statesmen. Salaries and pensions allowed to political office holders are intended to make politics less risky for good people to enter and not to enable self seekers to opt for it as a career.

2. NOBLE PROFESSIONS;

A noble profession is one that is inferior to charity but superior to ordinary professions (skilled or un skilled) and business. To state it in a little abstract form, a practitioner of a noble profession takes valuable consideration for extending his services, but while doing so he gives prime importance to the beneficiary’s interests, by paying special attention to the latter’s actual needs and to some extent, to the feasibility to the intended service. This can be better understood by a concrete example. Supposing I run a shop of suitcases. A customer comes to me and asks for a suitcase worth Rs.300/-. If I straightaway give him the suitcase and receive the price it becomes a business. Instead, I ask him the following questions and elicit the following answers from him:

Q; “ why do you need a suit case”

A “I need for my travel, of course”

Q “How of ten do you travel”

A “Twice a year”.

Q ‘How many suitcases do you already posses?

A “Ten-I use only two at any time”

At this stage if I say, ‘I will not sell you as you do not need it. I do not mind if I do not make the sale and thus lose the resultant profit. I shall sell it only if you need it and not if you just ask for it’, here lies the noble character of the activity. An honest businessman does not deceive the customer as he receives the price and gives a commodity or service of corresponding value. But there is no element of nobility, as he is not acting contrary to normal self-interest. On the other hand a practitioner of a noble profession has to resist the temptation of gratifying his self interest by deciding what is in the best interests of the customer and also tell him in advance of the actual feasibility or otherwise of the service demanded (though the latter trait may over lap in a business also.). Once it is established that the need is genuine the practitioner will extend the service against a fee. The mere fact that he charges the fee does not deprive his profession of its noble character. There is no obligation to extend the service free of cost or at a subsidised cost, as that would otherwise go into the realm of charity, wholly or in part, which ranks above noble professions.

Generally medical and legal professions are the two professions, which may be categorised as noble. A doctor must not perform a test, prescribe a medicine, give an injection or perform an operation just because the patient requests for any of these. Even administering a placebo must be based on the patient’s psychological need and not the doctor’s commercial interest. If a doctor were to be a mere businessman, the moment the patient, overwhelmed by pain says, “ please open my stomach, remove the foreign matter and I will pay Rs.2000/-, your usual operation charge” the doctor would do so and receive the amount. He has not cheated the patient as the latter asked for it just as a customer asks for a suitcase. But if the doctor were to practise as a noble professional, he would first prescribe a laxative to bring out the foreign matter and receive the corresponding fee of, say, Rs.50/- and forego Rs.1950/-, which the patient had offered for performing the operation. Most people think that the medical profession is noble as the doctor saves lives, but it is not so. Incidentally I would like to make it clear that a doctor does not himself know fully as to what life actually is, as life is still an unsolved mystery for medical and biological sciences. The smallest units of life are said to be DNA and RNA but what differentiates living DNA and RNA from dead ones is not explained. It is not merely electrical energy that makes for the deficiency. Otherwise, if electric current is made to pass through a dead body, it should come back to life.

I can see two methods of deciding nobility, viz. the approach method and the consequence method. If we take the consequence method, it is true that if a surgeon performs an operation correctly, the result would be that a life is saved and if he makes a mistake, a life is lost. However, by this analogy if a bus driver is careful at the wheel, he will take fifty passengers to the destination safely. If he makes a slight mistake in avoiding an opposite bus there will be ghastly collision endangering the lives of a hundred passengers in both the buses. Does it mean that a bus driver’s profession is a hundred times nobler than a doctor’s profession? Even the degree of trust in a driver’s skill is more than that reposed in a doctor. In the case of the doctor, the patient knows that he is sick and places himself in the hands of the medical man, knowing full well that as he is already ill, even if no treatment is given, he will die any way and so why not take a chance by undergoing treatment or operation. But in the case of bus passengers, fifty of them who are perfectly hale and healthy entrust themselves to the care of the humble driver. The consequences of the low profile bus driver’s misfeasance or nonfeasance could be graver than that of the not so low profile surgeon. Therefore, the consequence method of deciding nobility or utility is not reliable. The other method is the approach method and if we go by this method, the doctor’s profession is noble but the nobility does not lie in saving lives but in giving prime importance to the patient’s interests, by overcoming his own self-interest. “A doctor assures care and not cure”.

A boatman may row vigorously to bring the boat to the shore to avoid a chasing cyclone and thus save lives. A pilot may show exceptional skill and courage in manoeuvring an aircraft out of a storm. In both these cases, the boatman and the pilot are actuated by the motive of saving their own lives, along with those of the passengers. Their skills are useful but they are not noble on that account. If a surgeon performs a coronary bypass in attempting to save a life, he knows that if he succeeds he will get credit and money but he fails, he will get money any way, and it is the patient alone who leaves this planet.

Now, let me explain how the legal profession is noble. Before I do that, I shall describe the actual function (I mean the legitimate function) of a lawyer, by drawing a comparison. A lawyer, or to be more precise, an advocate, is like a diamond cutter and polisher.§ Contrary to popular myth, an honest advocate cannot and ought not to change a bad case into a good case just as a stone cannot be changed into a diamond. However, the lawyer may spoil a good case and make it a bad one by inept handling just as a good diamond can be damaged into pieces by an inefficient professional cutter. Therefore, a good lawyer, like any other professional, ought to be efficient and honest. A client walks into the office, hands over a brief and speaks to the advocate as follows:

‘Please examine whether it is a good case [a diamond] or a weak one [a cheap stone] and if it is a good case [diamond], please get it so certified by the judge and also show that my opponent possesses only a stone.”

Some times, the client himself volunteers an opinion to the advocate that his case is a diamond and requests him to get it so certified by the judge.

Here, the genuine lawyer must use his knowledge, skill and experience to

a) Decide whether the object is really a diamond either wholly or in part, from a strictly legal point of view though not always from a moral point of view. For instance, a debtor approaches a lawyer for saving him from the claim of a creditor. Here, if the debt is true, then from an ethical point of view the case is not a diamond but from the legal point of view, if the debt is barred by limitation or deemed to be wiped out under any of the beneficial legislations like the Debt Relief Act, it is like a diamond. It is this type of diamond that a lawyer is mostly concerned with. It is here that the legal profession is maligned uncharitably for “encouraging dishonestly” though the lawyer in such a case is only performing his legitimate function just as a hangman has to carry out the death sentence irrespective of the question whether killing is moral.

b) If the advocate opines that the brief, as he perceives it, is only a stone, he must throw out the case [as he is not just a mouthpiece of his client but an officer of the court, as per rule 4 of the rules of the Bar Council of India and should not waste its time] not with standing the protestations of the client to the contrary, even if fortified by an assurance from the client that he would not blame the advocate for eventual failure of the venture. This involves acting against self-interest, as the lawyer would lose the fat fee he would have received if he had accepted the engagement. He displays nobility (stage 1) here.

c) If he is convinced that the brief is like a diamond he must choose the least expensive and quickest remedy (lawful remedy) for his client, such as whether to file the case into court (against a fat fee) or first issue notice of demand (against a nominal fee) He must not straight away file the case lured by the fat fee even if the client is impatient to wait under the influence of emotion, unless there are pressing circumstances such as the claim getting time barred, threat of immediate dispossession of property, etc. This again involves acting against self-interest and nobility (stage 2) steps in.

d) He must then proceed to accept the case and may stipulate his fee for executing the work. On receipt of the fee, he has to cut the diamond properly (in the form of precise pleadings) polish it and argue before the judge that his is a real diamond and the opponent’s is a bogus stone, either wholly or in part. When he is thus exercising the skill there is no element of acting against self-interest and no marks can be given for nobility at this stage.

e) If he loses the case in court, he must once again decide whether there is a case for an appeal, not with standing the client’s personal preference to proceed. If the lawyer feels that there is no case for appeal and refuses to file it, he is again acting self-interest and nobility (stage 3) sets in.

Apart from the three stages of nobility, there is also a fourth stage of it, where the lawyer has to view the mater from an ethical point of view, in some exceptional cases. For example, a criminal accused of raping a child, approaches the lawyer to defend him. The criminal confesses to the lawyer that he has really committed the crime but wants to be saved. The lawyer finds that there are certain technical loopholes in the case (such as a bungled forensic report, delay in lodging the first information report, contradictory versions of the eye witnesses etc), which are enough to set the accused free. Technically the case is like a diamond from the point of view of the accused, though morally there is no justification as the culprit himself confessed before lawyer. Here the lawyer has to make a difficult judgement whether or not to accept the case. There is considerable disagreement as to what the lawyer should in such a situation do, in professional circles. I am personally of then opinion that in such extraordinary situation, the lawyer has to refuse to defend him, to benefit the society.* [footnote] This is the fourth or booster stage of nobility, which is optional.

In the medical profession no such difficult decisions of ethics are required as the doctor has to treat any patient who approaches him, whether a king or convict, a Hitler or Gandhi a Rama or Ravana, as the doctor’ job is merely technical. Both the lawyer and the doctor blast off by rockets powered by thrusters of nobility. However, the doctor has only one thruster of safeguarding the interest of his patient at the stage of treatment where as the lawyer has one additional and optional booster rocket of morality of safeguarding the interest of the society.. So, you can see that the genuine lawyer soars far higher into the sky and even reaches the outer space if he can reach escape velocity. That is why they used to say, `` All great men are lawyers though all lawyers are not great men”.A doctor promotes personal health, while a lawyer promotes interpersonal health

GIVE AS PER NEED AND TAKE is the motto of noble professions.

Noble professions and useful professions:

There are some professions, which are more useful than the noble professions, but do not qualify as noble as there is no element of acting contrary to self-interest in them. For example, the humble farmer is more useful to the community in general than a doctor or lawyer, whose services are needed only occasionally where as the food produced by the farmer is a regular requirement. But the farmer is actuated by purely selfish motive in striving to produce more so that he can earn more money, pay off earlier debts and buy jewels for his wife, perform daughter’s marriage etc. All noble professions are useful professions but all useful professions are not noble professions.

Noble professions and notable professions:

Certain professionals such as engineers, scientists now and then do things, which are notable and often useful but not noble. The invention of the steam engine, the motorcar, the aeroplane, were all notable at those times but are common now. They cease to arouse curiosity, as we are all used to them by their being in constant use. The atom bomb was a notable invention but whether it is useful or harmful to humanity is a matter of controversy. But, there is no element of nobility in inventing contrivances. Inventions and discoveries happen some times by accident (like antibiotics) or by a desire to fulfil curiosity or an ambition to win a fortune. No attempt to overcome self-interest is involved. . Edison, the great inventor, also took care to secure the maximum number of patent rights. The invention of anaesthesia was followed by one of the longest legal battles for patents.

Abstention from crime is not nobility:

Mere abstinence from crime is not nobility but only propriety. A judge who spurns a bribe, a lawyer who declines a favour from the opposite client or prohibits perjury by his own client, a doctor who refuses to give a false medical certificate, an engineer who refuses to dilute the proportion of cement and incurs the contractor’s wrath, a policeman who does not accept a ‘mamool’, are all merely abstaining from crimes and by those acts alone they cannot claim the status of noble professionals. Otherwise, even a beggar will claim that he is noble as he is not robbing the almsgiver but politely requesting him for alms and has thus abstained from committing robbery, which is a crime.

Facing professional risk is not nobility

A soldier lays down his life for defending his country. Will not the noble professions suffer by comparison with a soldier? This question can be better answered by bringing out the distinguishing features between the two.

a) An army of mercenaries [soldiers who fight for anybody who pay them] also faces the chance of getting killed, but the risk is only a professional one. Similarly, judges, prosecutors, police officers face the risk of attack by criminals. Doctors face the risk of catching hospital infections. Journalists face threats of death from those who would be facing risk of exposure. Mere facing of professional risk is not nobility. In fact there is hardly any profession, which does not involve some professional risk or the other. The risk is deliberately accepted with a view to enjoy the benefit of staying in the profession.

b) A soldier receives a regular salary for his participation in training and ultimately in battle where as a noble professional, practising privately, gets no minimum guaranteed allowance. To stick on to nobility against possible danger of facing poverty requires uncommon strength of character. According to Bertrand Russell, most medical men find it difficult to get along without humbug.

c) A soldier or policeman enjoys certain privileges such as monopoly in the possession and power to use weapons. Though a doctor or lawyer enjoys privileges of prescribing medicines or canvassing others causes, there is no compulsion for patients or clients to seek professional assistance. A client can argue his case if he so desires, or suffer his disease or consult a quack if he so wishes, with out bothering to hire professionals to solve his problem.

d) Soldier may be compelled to fight for unworthy causes where as such thing as compulsion is seldom possible in the case of noble professions.

e) A soldier only faces a chance of getting killed where as a noble professional, practising as such may be sure of facing certain poverty, and starvation, unless he has some other source of income to fall back upon, at least till he makes a mark in his profession.`.

f) A soldier is trained to obey mechanically where as a noble professional has to take stressful decisions routinely, which makes him a sitting duck for a heart attack.

Defensive medical practice is not ignobility

A doctor who prescribes tests and medicines that are considered unnecessary by most other doctors may be inefficient and not ignoble, if his motive was to protect himself from lawsuits alleging negligence. Where he is actuated by the motive to squeeze more money, he is ignoble.

3. Business and ordinary professions:

These are superior to receiving alms or committing crimes but inferior to noble professions. There is absolute quid pro quo between the customer and the shopkeeper, the engineer and his employer, the architect or auditor and his client. The potter, the barber, the smith also come under this category though they keep a low profile. Teachers also come this category. Their work is useful in the long run but they do not act contrary to self-interest to make them noble. Judges also come in this category as they are[ or ought to be] mostly like referees in a match, while the fighting lawyers take the brunt of the blows. But judges in India like to think that their profession is divine. It is not known whether this analysis will make them to change their opinion.

GIVE AND TAKE is the motto of professions and business.

In rare cases even ordinary professionals can behave like noble professionals, as for instance when I get down in Hyderabad railway station and ask the taxi driver to take me to Secunderabad, he must take me by the shortest route and minimise his profit, by acting against self-interest. How ever, it is only rarely that such occasions arise, as the passenger usually knows the shortest way himself. A car mechanic who refuses to carry out a costly replacement and service, and does the job by a simple method effectively, displays rare quality of nobility and temporarily elevates his profession to the noble level.

Any profession or business can be elevated to the level of charity temporarily or permanently, if practised free of cost and to the level of noble professions, if practised by overcoming the normal self- interest.

4.BEGGING

As an activity,it is inferior to ordinary professions or business. Here benefit is received with out any corresponding return benefit to the giver, but with the knowledge and consent of the almsgiver. It is superior to committing other crimes. TAKE, WITH CONSENT AND DON’T GIVE is the motto of the beggar.

Some one had classified beggars into three groups, viz., 1) can’t beggars’, like those who cannot work on account of physical or mental infirmity 2) don’t beggars’ like those who are willing and able to work but do not have work to do and 3) won’t beggars’, like those who have an aversion to work, though it is available and they have the capacity to do it.

5.CRIMINAL ACTIVITIES

Offences such as theft, extortion, dacoity, and criminal breach of trust involve obtaining benefit by force or fraud, while no corresponding benefit is given to the victim. No doubt, they are prohibited. TAKE-BY FORCE OR FRAUD AND GIVE NOT is the motto of such criminals.

To sum up,

GIVE –TAKE NOT is charity

GIVE – AS PER NEED AND TAKE is noble profession

GIVE & TAKE is business and ordinary profession

TAKE- with consent & DON’T GIVE is beggary

TAKE-BY FORCE OR FRAUD & DON’T GIVE is crime

The above paragraphs contain only theoretical characteristics of various activities for the purpose of clarity of thought and expression. Rules of professional conduct prohibit noble professionals from advertising or chasing their clients or give commissions to attract cllients only because nobility cannot be expected from the practitioners if they actively seek work and not out of any misplaced self-importance or with a view to prevent fresh entrants from becoming popular and posing a threat to established practitioners.

In the real world, with some laudable exceptions, charities are psuedo charities, for taxation purposes. Some of the noble professionals have reduced themselves to the level of not merely business but to the level of heinous crimes. A doctor who prescribes unnecessary tests and medicines to take a `cut ` from laboratories and pharmacists, who performs unnecessary operations knowingly, acts most ignobly and reduces his noble profession to a gobble profession. A lawyer who does not follow the norms of the profession, goes after briefs, pampers politicians, cringes before tycoons, harbours criminals knowingly, is worse than a criminal and a separate provision must be incorporated in the Penal Code to take care of such abominable behaviour. Similarly, a lawyer who promises to get things done, not by virtue of the inherent merit of a case as perceived by him and polished by his professional skills and talents but by virtue of his personal contacts with the judge, is to be condemned as a broker with a black coat. “There are two types of lawyers, those who know the law and those who know the judge”. Mr.Ram Jethmalani adds, “There are two types of judges, those who know the law and those who know the law minister”.

FATHER FORGIVE THEM ALL - THEY KNOW NOT WHAT HARM THEY ARE DOING TO THE SOCIETY.

EPILOGUE

The object of the author in writing the above article is not to blow his own trumpet or to belittle other professions but to carry a message to the noble professional and also the public. The noble professional should know where exactly his nobility lies and where it does not lie and try to live up to the standard. The public must also realise that they cannot expect charity from a noble professional and even for a consultation they must learn to suitably reward him and must not adopt the attitude, `Why should I pay for just talking to him?` If the public does not learn to suitably reward noble professionals and the latter vanish from the scene for lack of encouragement, the public will have to contend with criminals in the garb of noble professionals., and ultimately pay a heavy price.

In India people borrow and spend lavishly on marriages and other ostentations, but display miserliness in paying the noble professionals and then complain that professional standards are falling. The Indian must learn that everything has a price and he cannot go on expecting charity as a matter of course. With liberalisation and privatisation of the economy it can be hoped that the lot of the average honest lawyer will improve from the present state of `working like a horse and living like a hermit, to working like a human and living like a householder`.

G.V.DESAI, Advocate, 21-82/4 SKD colony ADONI PH.253082

[footnote] · The absence of any other criterion to attribute nobility may become evident if the reader patiently goes through the entire analysis, by withholding his judgement till the end.

§ An advocate is also a social engineer apart from being a boxer in the ring. A more detailed description of these roles is given in another essay, “A GUIDE TO THE JUDICIARY- THE BENCH AND THE BAR”.

[footnote] * No doubt, judge cannot straight away convict the accused on his confession and must record evidence. This is only intended to prevent false confessions such as of a mother to save her son from the gallows, or a driver to save his master who was actually at the wheel at the time of accident. Nowhere it is enjoined that the lawyer must dishonestly cross-examine prosecution witness though his own client has admitted the allegations. The lawyer whose client has confessed to the crime must simply report that he has no cross-examination. This will not apply to a case where the lawyer appears as amicus curiae [friend of the court] where he does not depend upon his client’s instructions for cross-examination. With the advent of plea-bargaining, the accused are actually encouraged to admit the offence and in the United States ninety-eight percent of criminal cases are settled on the principle of plea-bargaining.