AIX-EN-PROVENCE, France — It is a truth universally acknowledged that a person in possession of troubles must be in want of a lawyer. Yet while no one would claim lawyers to be an endangered species, manydevoutly wish it to be so.

When Shakespeare had Dick the Butcher mutter the oft-repeated cry, “The first thing we do, let’s kill all the lawyers,” the task would not have been that daunting. At the end of the 16th century England had about three million inhabitants and just a few hundred law-trained persons. The ratio was about one lawyer for every 30,000 inhabitants. The figures are sketchy.

When I first began to practice in France a few decades ago there were only 7,500 lawyers; the total now approaches 50,000. While cafés disappear and French population growth slows, the French legal population pursues a Malthusian growth.

In England and Wales, the ratio today is one lawyer for every 671 inhabitants. Across the Atlantic, 175,000 lawyers populate California for a ratio of one to 194. In New York the ratio is one lawyer for every 135 inhabitants.

I used to puzzle over why lawyers should be simultaneously much sought after and much maligned.

The solution lies hidden in the work itself. It comes with the onset of conflict or when fear of loss or hope of profit grows too acute. Lawyers delve into the nitty-gritty of all the human problems one can imagine and some that defy imagination. They are paid to extricate clients from the financial or emotional nets in which they have become enmeshed or to find ways to escape being netted.

A contract to rent a flat, buy a house or sell a business is an effort to stave off potential problems so that a hoped for objective can be achieved. A broken marriage poses issues of child custody, visitation rights, child and spousal support, division of property, living space and others. These are practical and immediate problems which must be resolved by people who have been emotionally wounded and often enough are no longer even on speaking terms. There may be no good solutions.

The work may be to draft leases, deeds, wills, motions, complaints, briefs, trusts, memoranda, letters and other documents.

Sometimes I wonder at the almost primitive belief that ink can ward off danger. Yet often enough the magic works.

Then again it may not. The seller or estate agent may abscond with the down payment; the buyer may not come up with the funds to purchase; the house may be destroyed in a tsunami or it may be infested with termites; a forgotten cousin or an ex-spouse may turn up to claim ownership.

The lawyer is then the repairman, but unlike a simple household repair, he will find as many repairmen as there are people involved, and the repairs of one may be the disrepair of another. It may be that one party emerges partly unscathed, but for every partial winner there will normally be losers.

In desperation clients turn to courts, as a dying man turns from his doctor to quackery and buys a miracle medicine. The same hope invades those who pay advocates to plead with men sitting solemnly at a raised wooden table in an ornate room and beg them to serve up something called “justice” in the hope it will restore their shattered lives.

People want to believe in justice. Justice is what they hope for, but their hopes are almost never fully realized. Expectations are not fully met, and hence justice never fully achieved.

And so the lawyer who fails to put back together the shattered hopes is an easy target.

If the lawyer has tried and the client feels that knowledge, expertise, experience and effort were valiantly brought to bear, then the judge or fate, rather than the lawyer, may be blamed.

Then again the client may thrust the blame for his ill fortune upon his advocate, even though the latter neither created nor contributed to it, but was simply unable to repair the damage.

I have come to accept this occasional fate with equanimity. For, in the final analysis, Dick the Butcher’s plea to kill all the lawyers is a plea for anarchy.

If life is not to become a tale told by an idiot, signifying nothing, there must be rules. As prosperity renders life more diverse, so laws grow in number and complexity. If we value growth, then we must have those who write, study, and interpret the rules.And so one might justly say, unhappy is the land that needs no lawyers.

Ronald Sokol practices law in Aix-en-Provence.

In his “Old Possum’s Book of Practical Cats,” T. S. Eliot declares, “The naming of cats is a difficult matter.” The truth of the poet’s insight was recently confirmed in Galveston, Texas.

There, a female cat had taken up residence under the San Luis Pass Bridge, joining a group of possibly related cats. John Newland, who had the lonesome task of collecting tolls on the bridge, named his neighbor “Mama Cat.”

On Nov. 8 , possibly around 4 p.m., a felicide was reported in the vicinity of the bridge. Hastening to the scene, police found the bloody remains of Mama Cat, shot dead with a .22 caliber rifle.

An intensive manhunt ensued, and a 54-year-old man named James Stevenson with no prior criminal record residing near the scene of the crime was soon arrested. Under interrogation, Stevenson confessed to the deed, and was indicted for feloniously killing a domestic animal.

The trial opened on Nov. 14 and lasted three days. Resorting to a confess-and-avoid strategy, the defense counsel admitted that the suspect committed the deed, but contended the act was justified.

The lawyer argued that Mama Cat did not have an owner, as required by Texas law, but was a feral cat. The accused, he further argued, was defending a fowl in imminent danger of grave harm. On the stand, Stevenson identified the endangered bird as a piping plover.

The prosecution argued that Mama Cat belonged to John Newland, and therefore that Stevenson had with malice aforethought shot a domestic animal. The statute allowed for two years in prison.

Press reports of these proceedings, however, made no mention of either the prosecution or the defense invoking Pierson v. Post (1805) or Mullett v. Bradley (1898). In the former, Lodowick Post, celebrated by law students for the past 200 years, was closing in on a fox with his hounds when the wily Pierson intervened, killed the fox and carried it off. The court had to decide whose fox it was – and more specifically whether Post, by virtue of his hot pursuit, had acquired a property right in the animal.

Law students learn that foxes are ferae naturae, wild animals, and one acquires property in them only by “occupancy.” But what, asked a puzzled judge 200 years ago, was occupancy? He found the answer in Justinian’s Institutes (6th century): Pursuit alone vests no property right in a wild animal.

Then there was Mullett and the escaped sea lion. A century ago Mullett made a living capturing sea lions off the Pacific and selling them to exhibitors on the East Coast.

One of the sea lions was rejected for blemishes, and in July 1896 Mullett put it in a cage on Long Island Sound. After a few days it escaped, and weeks later a fisherman caught it off the New Jersey coast and sold it to one Bradley. Mullett sued to recover it.

The question was whether Mullett had lost his property right in the sea lion by virtue of its escape.

The right is lost, the court ruled, if the animal escapes and gains its freedom with no intent to return. Thus Mullett no longer owned his sea lion unless he could show it had an intent to return.

This brings us back to Mama Cat. Put on the witness stand, Newland admitted to giving names to several other cats domiciled under his bridge and to making donations to them of bedding and food.

So was Mama Cat ferae naturae? And when she left her domicile under the San Luis Pass Bridge for the seashore where she found death while stalking the piping plover, had she intended to return to the bridge after dining on wild fowl?

Did food, bedding and a name confer on Newland a property right in Mama Cat?

Of course if Newland had put a collar on Mama Cat with a name tag and a bell, the jury might have had less trouble, but Newland may have suspected that Mama Cat and her relatives were a fierce and proud family who would resist such an effusive gesture. As the late Austrian zoologist, Konrad Lorenz, wrote, “The mind of the cat is a delicate and wild thing.”

After deliberating for two days, the jury was deadlocked, and the judge declared a mistrial. The prosecutor has said he will not retry the case.

Law students pass an entire year studying the law of property, but soon on to more relevant matters. One hopes that the prosecutor, too, will soon move on.

Ronald Sokol, a practicing lawyer in Aix-en-Provence, formerly taught law at the University of Virginia.

PUYRICARD, France — Last week, Germany proposed that all European Union members adopt a uniform law to make Holocaust denial a criminal offense. Denial of the Holocaust is already a crime in Austria, Belgium, the Czech Republic, France, Germany, Lithuania, Poland, Romania, Slovakia, Spain and Switzerland.

The proposal has prompted a sharp debate on whether denial of an historical event should ever be criminalized.

The dominant theme in American law is that of Supreme Court Justices Oliver Wendell Holmes Jr. and Louis Brandeis, who believed that “unless the incidence of the evil is so imminent that it may befall before there is opportunity for full discussion the remedy to be applied is more speech, not enforced silence.”

The lineage of that theme traces back to John Milton, who wrote that if Truth and Falsehood were to grapple in a free and open encounter, Truth would always win.

There is no doubt that freedom to advocate one’s thoughts and ideas is a vital ingredient in any healthy society. It is the principal means by which change can occur and a society can correct the errors of its leadership.

The vexatious issue is where to draw the line. Even under the expansive American view there are limits to free speech. In Justice Holmes’s famous phrase, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.”

In an inversion of Germany’s criminalization of Holocaust denial, Turkish prosecutors have sought to punish those who affirm the truth of the Armenian genocide. If denial of an event can be made a crime, then logic compels that affirming an event can also be punished.

Yet when governments begin to legislate what is true and what is false, they embark upon what has historically been a very slippery slope.

Even on major historical events men and women rarely agree upon a single truth. Was Napoleon a hero or a tyrant? Each generation must interpret history anew and discover its own truths, and competing versions can coexist. The Holocaust itself was not named and categorized until almost a full generation after the event.

Today only a person in a state of appalling ignorance or advanced dementia can deny the facts of the Holocaust. Yet if the facts are true, then why is legislation needed to make the denial a crime?

The American view is that government has no right to forbid speech unless it will incite imminent lawless action. If that test is applied to those who deny the Holocaust, there would appear to be no need for a law. While Holocaust deniers do attract followers, they are largely ignored by the general public and, at least to date, have not incited or produced imminent lawless action.

Yet there are also valid arguments for punishing Holocaust denial. The Holocaust was a methodical effort to exterminate an entire people; it plunged far deeper into the maelstrom of human depravity than anything before it.

Holocaust denial is not really about denying a historically established event. Human language is not limited to conveying verbal information. It also conveys emotional information and can influence and incite by the unspoken message it contains. It can be a powerful message.

The recent Holocaust-denial conference hosted by the Iranian president is a good example. The emotive message was both anti-Israel and anti-Semitic. That was in fact its whole purpose.

Holocaust denial can thus be seen as a way to incite hatred against Jews and the Jewish state. And inciting hatred, whether religious, ethnic or racial, is generally deemed to be unprotected speech. Just as there is no right to shout fire in a crowded theater, so there can be no free- speech right to incite racial or religious hatred.

Of course there are ways of discouraging speech intended to stir hatred other than by prohibiting it. Laws can be passed enabling those who are targeted to sue the speaker and to recover substantial damages.

As ministers of justice throughout the European Union begin to consider a uniform Holocaust-denial law, they ought to ask whether this might have a chilling effect on other speech. If a uniform law is adopted, will it tempt legislators to descend the slippery slope and begin to legislate about other historical events perhaps not so clearly documented and to impose by law what can and cannot be said?

They might ask what precisely a Holocaust-denial law intends to accomplish. Is it to silence the quacks who deny the fact or to prevent false information from influencing others?

They can then reflect on whether the law will accomplish either of those ends and whether it will further or hinder the goal of an open society.

When two journalists sought to photograph President Sarkozy in his bathing suit this summer in New Hampshire, he leaped into their boat and gave them a brief but stern lecture on the law of privacy. Unfamiliar with the language of Molière, they were no doubt puzzled. Had they spoken French, they could have told him that he would search the Bill of Rights in vain. Amongst rights to free speech, assembly, religion, and jury trials, there is no hint of a privacy right.

While both American and European courts embrace the right to privacy, they don’t necessarily embrace it the same way. When Samuel Warren and Louis B. Brandeis, in a celebrated essay published in 1890, conjured it up, they called it “the right to be let alone.” Prior to that time, there was no such right, either in the United States or in Europe.

Today the right is interpreted in ways that highlight cultural differences between the two continents. In American courts newsworthiness often trumps privacy; in Europe the tendency is the reverse.

A 1970s case involving the attempted assassination of President Gerald Ford shows the emphasis of American courts. A man who stepped forward and struck the assassin’s arm to protect the president found his life changed. The press, seeking to learn more, discovered he was homosexual. To his consternation they published the information. He sued, but the courts found the story newsworthy and threw out the case.

An earlier decision upheld publication of a story about a former prostitute who had since married and started a new life. In another well-known case, The New Yorker magazine was sued by a hermit whose privacy was shattered when a James Thurber story disclosed that many years before he had been a famous child prodigy.

Rape victims have had their names published. Privacy, while acknowledged as a constitutional right, does not rank highly in the scale of American values.

In Europe, the right to be let alone, while by no means always triumphant, has fared better. When Princess Caroline of Monaco was photographed playing tennis, shopping and collecting her children at school, she sued. After years of litigation in the German courts, which took the American view that the public had a legitimate interest in her actions, the European Court of Human Rights ruled that there was no public interest in her purely private life and that her privacy had been unlawfully invaded.

This year, the European Court of Human Rights condemned Britain for failing to protect the privacy of an employee at a college in Wales whose phone calls, e-mail and Internet use were monitored to see if she was using college facilities for personal use. The court said her expectations of privacy were reasonable even though she was at work. It did not matter that the content of her messages was ignored; nor did it matter that the college did not use the information against her. Merely storing the information, the court said, violated the privacy provision of the European Convention on Human Rights.

It will be interesting to see whether American courts will provide similar protection against the widespread electronic surveillance that the Bush administration has now admitted.

The Strasbourg Court, however, has also recognized the importance of newsworthiness. Just after the death of President François Mitterrand, his doctor published an account of his cancer. Mitterrand’s widow got French courts to enjoin publication as an invasion of privacy. Yet when the case reached the Court in Strasbourg it ruled against France because the public interest in Mitterrand’s presidency, it said, must prevail over the privacy of his widow and children. Despite this judgment, the emphasis shown by the courts on the two continents has clearly not been the same.

When Brandeis sat on the U.S. Supreme Court, nearly 40 years after publishing his article, he called privacy “the right most valued by civilized men.” Brandeis understood that people have a legitimate interest in knowing that “what is whispered in the closet shall not be proclaimed from the house-tops.” But he also knew that no rigid formula can determine what falls within the circle of privacy round each person.

The tension between the desire of the press to make things known, the public’s interest in knowing, and a person’s desire for a sanctuary must be adjusted. Cultural differences affect that adjustment.

While judges from New Hampshire to Strasbourg struggle to find the contours of the protected circle, Sarkozy was quite certain that his bodily contours were firmly within it.

Ronald Sokol is a practicing attorney in Aix-en-Provence. He is the author of “Freedom of Expression in France: The Mitterrand-Dr. Gubler Affair.”

AIX-EN-PROVENCE, France — Fired, laid off, made redundant – whatever the term – it brings dismay and often misery. As President Nicolas Sarkozy of France moves toward a much-needed overhaul of his country’s labor market, the issue of job security will make or break his effort.

Most people find their identity and some of life’s meaning in a job. While neither the European Convention on Human Rights nor the American Constitution specifically mentions employment, the coming debate will ask whether job security should be a basic human right.

In the English-speaking world, common law established that an employer had the right to dismiss an employee at any time for any reason unless the labor contract provided otherwise, which it almost never did.

Although employment “at will,” as it was called, is still the rule in the United States, it has been tempered by laws forbidding discrimination based on race, gender, national origin, religion or ethnicity. While a U.S. employer retains the freedom to fire, that freedom is no longer unfettered.

England, too, has limited an employer’s right with the doctrine of fairness. Yet in both the United States and England an employer can dismiss an employee quite freely if certain ground rules are followed.

In France, which once had more employer-friendly rules, the situation changed radically a generation ago. In 1973, France prohibited an employer from firing an employee unless he could show “genuine and serious cause” for doing so. Since then a voluminous case law has developed attempting to define what that means.

If a business needs to be restructured, the employer’s capacity to react is restricted. A sharp drop in sales is not sufficient to justify firing workers if the business is still profitable. Losing money is a prerequisite to anyone being legally dismissed.

It is widely acknowledged that the difficulty and cost of laying off employees has been a major factor contributing to France’s high unemployment. An employer who is uncertain that he can fire an unsatisfactory employee or lay off employees when sales decline will exercise caution before hiring.

The employed have a vested interest in protecting the right to a livelihood, and it is to be expected that they will fight to keep it. Yet if one probes to see if employees’ claims are just, there is doubt.

In the influential “A Theory of Justice,” John Rawls emphasizes that each person has an equal claim to justice and that fairness must be dominant. To understand what this means in the employment context one must look through what Rawls calls a “veil of ignorance.”

If you are born into a society without knowing what position you will occupy, how would you structure that society?

From this perspective, the certainty of keeping a specific job is not the value that should be protected. Rather, it is the certainty of getting a job that should be prioritized.

It is preferable to be born into a society in which everyone can get a job than to be born into one in which some have jobs that they get to keep while others have no jobs at all. Of course, in an ideal world, it would be preferable to have both situations, but no country has come even close to that ideal.

If one applies the veil-of-ignorance test, then the basic right should be the right to have a job, not the right to keep a job. Should there be such a human right?

Most people begin life with no capital, and many go through life accumulating little. Employment is necessary to get enough to eat, to be adequately lodged, to add meaning to life, and to have status. If governments exist to protect life, liberty and the pursuit of happiness, then the right to a job must rank among its main obligations.

The emphasis on security at the expense of creation is misplaced. This is not to advocate that an employer should be free to fire at will under all circumstances. Discrimination on the basis of race, gender, national origin, ethnicity and religion should be prohibited. Retirement funds, parental leave, paid holidays, sick leave, the right to strike and other rights should be built into the structure.

Thus, the underlying purpose of employee protection reflected in the 1973 French law is legitimate and should be encouraged. Yet a generation of intractable unemployment reflects a grave failure. What Sarkozy must create is a new human right: the right to a job. Only by sharply cutting back the job security bias of current law will he be able to do so.

If he succeeds, the flight of the young and the ambitious to London, New York, Miami, and elsewhere may then cease and a new French renaissance may begin.

Ronald Sokol is a practicing attorney in Aix-en-Provence. He has argued many labor cases in the French courts.

France’s freedom of expression is being challenged in court – by teachers.

France is known for its great restaurants. Chefs are singled out and graded by anonymous critics who award or withdraw stars to their restaurants. So seriously are these grades taken that from time to time a chef will commit suicide upon losing a star. Yet no starless chef has ever turned to the French judicial courts for relief from this scrutiny. Recently a more sensitive group, one that enjoys tenure for life, sought and won deliverance from their critics in a French court.

A website went live in January allowing students in France to grade their teachers online based on six specific criteria such as motivation, interest, and clarity. The teachers were named. The students, for obvious reasons, remained anonymous.

This did not go over well with teachers. The main teachers’ union sued to shut down the site, and a French trial court ruled in its favor, citing that freedom of speech ends when it affects teaching and that an uncensored discussion forum risked “becoming polemical.”

The practice of students grading their teachers began long before the Internet, but did not seem to have given rise to litigation. The worldwide reach of the Internet, though, has raised the ante.

Another site that has gained recent popularity in France is one for posting anonymous evaluations of doctors. Lawyers, dentists, accountants, veterinarians, perhaps even judges, cannot be far behind. They, too, may be subject to globally published appraisals. Is this a good or bad thing? Is it an exercise in freedom of speech or an invasion of a right to be free from public comment?

Freedom of expression is guaranteed in France and the other 46 countries of the Council of Europe by the European Convention on Human Rights, which states that “this right shall include freedom to hold opinions and to receive and impart information and ideas.” Of course, there are well-known exceptions in Europe as in the United States. Defaming others, inciting violence, or, as Justice Oliver Wendell Holmes wrote, “to shout fire in a crowded theater” are off limits.

But what constitutes defamation or an invitation to violence is not always clear. An expression of an opinion is generally not defamatory if it is made in good faith and not maliciously, but malice is subjective. If a student gives a teacher a bad grade on a website, who knows if his or her intent is malicious?

If my doctor or dentist made me wait three hours in his office and I post a note to that effect online, am I acting maliciously or just informing the public? If I thought my lawyer charged too much for his services or failed to keep me informed about my case and I post my observations on the Internet citing his or her name, am I defaming my lawyer, invading his privacy, or simply expressing my opinion?

Of course some comments and student grades may not be justified. There may have been a good reason that the doctor kept me waiting three hours. He was operating, and the surgery took longer than anticipated. The lawyer’s fee may have been lower than what other lawyers charge for the same service. The teacher may have given an excellent lecture but the students who appreciated it did not happen to post their reaction. Yet the expression of misinformed opinions should not be an adequate reason to suppress speech or restrict publication.

The idea of free speech is that people should be able to express their views without constraint, even if their views are wrong. Out of the chaos and struggle of conflicting ideas, better ideas emerge.

That teachers would sue to stifle student speech that reflects upon their own performance sets a depressingly low example of the value placed on that freedom by the teachers’ union. Nor is it encouraging that the French minister of education supported the union in its suit to suppress nondefamatory speech.

The teacher case has been appealed. Let’s hope a French appellate court will show a more robust appreciation of what is perhaps the most fundamental of all freedoms. Meanwhile my wife has proposed creating a site where wives can grade their husbands – but that surely falls beyond the scope of free speech.

Ronald Sokol practices law in Aix-en-Provence, France. He is the author of several books and articles, including “Justice After Darwin, Freedom of Expression in France: The Mitterrand-Dr. Gubler Affair.”

In France, a Muslim couple’s dispute raises a sensitive legal question: How much does a bride’s virginity matter?

Like a used car, must a groom take his bride “as is” – with no warranty implied as to the woman’s chastity?

That was the question at the heart of a legal case that recently worked its way through the French courts.

The drama began on a Muslim couple’s wedding night. Apparently, the bride wasn’t the virgin the groom thought she was. He immediately brought suit to annul the marriage on the grounds that his wife’s virginity was an essential condition of the marriage. French contract law states that if one of the parties to a contract is mistaken as to some essential element, then the contract is void.

The question was whether the woman’s virginity was an essential element of the marriage contract. If it was, then the contract could be annulled. If it was not, then the couple was validly married.

As neither party objected, the trial judge saw no harm in granting the annulment. He failed to foresee the media storm that would ensue. Prominent members of the French government, including the dynamic minister of justice, Rachida Dati, were outraged. She ordered the government to intervene and appeal the decision.

French law permits the government to become a party to any case in which French public policy is at issue. A woman’s right to choose her first lover suddenly became a matter of public policy.

The decision of the trial judge quickly reached the appeals court, which reversed the judgment. At the appeals court, the husband changed his argument, saying that although he had hoped for a virgin wife, her chastity was not indispensable. It was her integrity that mattered. He claimed she lied to him and that truthfulness was an essential condition to a marriage. Mutual confidence and sincerity were, he argued, essential conditions of matrimony. Her deception concerning her virginity meant that he had not knowingly consented to the marriage.

His wife told a different story. She denied deceiving her future husband about her past. The subject of her virginity, she said, had never come up. Still, she agreed to an annulment because her husband lacked the intent to show her the respect required by the marriage vows, and that this was an essential condition to the marriage.

The government argued that the wife’s virginity was not an essential condition because her unchaste past has no effect on married life. The judges agreed. Even if she had lied, they said, it did not matter, as a woman’s lies about her past love affairs are not matters essential to her married life. In short, a woman’s past is her own.

The court’s legal analysis was one of “let the buyer beware,” as though the groom were claiming to have purchased damaged goods. His mistaken belief about his bride’s virginity could not, the court said, nullify his purchase. As a 19th century English judge put it, “on the sale of a specific article, unless there be a warranty making it part of the bargain that it possesses some particular quality, the purchaser must take the article he has bought, though it does not possess that quality.” French law now holds that a groom receives no warranty as to his bride’s chastity.

This case followed an equally dramatic one last year in which the French Supreme Court denied citizenship to a Moroccan woman because of the clothes she wore. In the eyes of the judges, her choice of a burqa and symbolized inferiority. (I am representing her appeal to the European Court of Human Rights.)

What conclusions can be drawn from these cases? They do not involve traditional arguments of equal pay, equal access, or discrimination. They go beyond mere legal equality to show concern for a woman’s status in society. Yet the concern comes at the cost of imposing values not accepted by a portion of the French population. It is no coincidence that the parties to both cases were Muslims. Denying citizenship to a Muslim woman on the basis of the clothes she wears is at best a doubtful use of state power. The appellate court’s limpid edict that a woman’s past has no impact on her married life tries to impose a factual reality by a legal fiction. What does seem clear is that the Muslim presence in France is having an important impact on the development of French law.

• Ronald Sokol is a lawyer in Aix-en-Provence who practices across France. He taught at the University of Virginia Law School and is the author of “Justice after Darwin” and other books and articles.

PUYRICARD, France — Doug Coombs, 48, an expert skier, shoots down a narrow path high in the French Alps. A friend preceding him misses a turn and slips over a precipice. Coombs follows to the edge of the cliff, peers down hoping to help. Then the snow gives way, and he, too, falls to his death.

Lincoln Hall, 50, an Australian climbing Mount Everest, is abandoned by his team, who think he has no chance of survival. Other climbers come along, find him alive and take him down the mountain. Hall survives.

David Sharp, 34, an Englishman, gets to the top of Everest, then begins his descent through the low-oxygen “death zone.” As he sits cross-legged and incoherent in a snow cave, 40 climbers pass by – and leave him to die. One climber stops briefly and gives him some oxygen. No one tries to save Sharp or stay with him until the end.

Did the climbers who saw Sharp have a legal duty to try to help him? It is a truism that a lawyer’s first answer is almost always another question. In this case, the question is: To what law must we look?

If we ask whether Coombs had a legal duty to go to the edge of a precipice in the French Alps, we must look to French law. The French criminal code makes it a crime not to help a person in need of assistance when help can be provided at no risk to oneself.

As Coombs was American, we might want to know what American law says. It is based on Common Law, which says that the law does not compel active benevolence. The traditional English view is that one has no duty to be a good Samaritan. The 40 climbers who left Sharp to die might be taken as exponents of that view. The members of the climbing team who stopped and saved the life of Lincoln Hall incarnate the French or Civil Law view.

What is strange is that different Western cultures should reach opposite conclusions on such a fundamental question. Underlying the legal issue, of course, lies a moral one. As Oliver Wendell Holmes poignantly put it, “The law is the witness and external deposit of our moral life. Its history is the history of the moral development of the race.”

Should we conclude that the English rule reflects a less morally developed stance than the French rule? It is not apparent why people should differ over whether there is an affirmative duty to help others. That they should differ over when the duty arises – that is, under what circumstances the duty comes into play – strikes me as normal. Clearly there is no legal duty to help my neighbor prepare for his trip to Honolulu. But if I find him alone on a beach with a broken leg and I am there with my cell phone, can I legally walk away and leave him without even phoning for help? The Common Law rule is that I have no duty to phone for help.

The harshness of the rule has been eased in some cases. Hit-and-run laws have been adopted to impose a duty not to leave the scene of a car accident. Property owners have a duty to those they invite on to their property.

Yet it does seem odd that the core principle of helping others under some circumstances should vary from one country to another. When the law compels a person to act in a certain way, it limits that person’s liberty, and it does so more severely than if it simply tells a person not to do something.

Most people act, however, as if they do have a duty to help others. People’s response to natural disasters as well as more limited family and individual disasters clearly shows this. Laws are not needed to force people to help. They come forward willingly to assist.

There is a clear distinction, however, between a moral duty and a legal one. If you fail to perform a moral duty, you may feel guilty, but you confer no right upon someone else. If you violate a legal duty, you confer a right upon the person to whom you owe the duty.

If you sign a contract to sell your house and you breach your promise, the buyer can sue to enforce your promise and compel you to sell the house. If I take you as a passenger in my car, I owe you a duty of care. If I drive negligently and you are injured as a result, you may sue me because I have breached my duty.

Did the Everest climbers owe a duty of care to David Sharp? Under French law, clearly yes, and his heirs could sue for damages those climbers who passed by for failure to assist him. They could be found criminally liable as well. Under traditional English and American rules, there was no such duty, and so no suit would lie.

(As for Nepalese law, I don’t know whether it follows the English rule or the French rule. No major cases seem to be coming out of the Nepalese courts on this issue.)

A creative lawyer, of course, might argue that mountaineers as a class owe a duty of care to each other because of the innate danger of the undertaking. Sir Edmund Hillary, the man who first reached the top of Everest, in 1953, said as much the other day.

AIX-EN-PROVENCE, France — ‘Every person shall have the right to die with dignity; this right shall include the right to choose the time of one’s death and to receive medical and pharmaceutical assistance to die painlessly. No physician, nurse or pharmacist shall be held criminally or civilly liable for assisting a person in the free exercise of this right.”

Within the next half century, perhaps much sooner, the right to choose to die with dignity will be as widely recognized as the right to free speech or to exercise one’s religion.

It will cease to be called euthanasia or mercy killing. It will not be viewed as killing, but as a fundamental human right as expressed in the imaginary constitutional amendment above.

In Europe, euthanasia is already sanctioned by law in Belgium, the Netherlands and Switzerland. In the United States, the state of Oregon has also allowed it.

The decision last week by a French criminal court in Périgeux illustrates how social mores precede changes in the law. The facts of the case are simple: A 65-year-old woman suffering from terminal pancreatic cancer was given potassium chloride by a nurse and died shortly after.

Potassium chloride is a fatal poison. The dose was prescribed by a doctor and administered by a nurse acting on the doctor’s orders. Prior to the fatal dose, the patient suffered from fever, trembling, incontinence, nausea, pain and an intestinal blockage causing vomiting of fecal matter.

The nurse was indicted for assassination and the doctor for assisting. The charges were later changed to poisoning. The two accused risked maximum prison sentences of 30 years.

After four days of trial the nurse was acquitted and the doctor was given a one-year suspended sentence. The court also ordered that the conviction not be registered in national government files, which will enable the doctor to continue to practice. It is not clear who initiated the prosecution. Neither the husband nor the son of the deceased woman pressed charges. In fact, they supported and thanked both doctor and nurse. The prosecution argued that the principle of not killing must be upheld, but the jury did not agree.

The decision shows once again that laws are a lagging indicator of social change.

France revised its law in 2005 and now permits what it terms passive euthanasia, which may mean withholding treatment or giving painkillers in such a massive dose that the patient can slide into an eternal sleep. But it forbids active euthanasia such as the use of potassium chloride.

A generation ago, in 1980, a number of people in France formed an Association for the Right to Die with Dignity (ADMD), which now has over 40,000 members. As medical care improves and people live longer, one can expect to see more such associations around the world, and eventually a change in perspective.

At present, the law focuses on the act of the physician or nurse, and not on the rights of the patient. As that focus shifts so that the right of the patient to die with dignity becomes paramount, one can expect to see the law proclaim a fundamental right.

The fear of abuse by doctors, nurses, or family members wishing to do away with an unruly patient or parent will recede.

Every time we step into an automobile we run the risk of being killed or seriously injured. Yet despite the thousands of auto fatalities every year in every country, the risk is accepted because of the benefits of automobile travel.

The legal philosopher Hans Kelsen defined justice as social happiness. But social happiness is an evolving concept and one that varies from one culture to another.

One need only look at how practices in the workplace — holidays, wages, hours per week, maternity leave for mothers and fathers — vary widely from country to country, and yet are regarded as vested rights in each.

Neither the French nor the American Constitution, nor the UN Universal Declaration of Human Rights, nor the European Convention on Human Rights, includes the right to die with dignity. But then many of the human rights we take for granted today — including non-discrimination and free speech — are far more recent than one might imagine.

One can predict with some confidence that as life expectancy is extended, social mores will evolve and the law will follow.

LONDON— William Kimbro is a U.S. Navy dog handler who worked at Abu Ghraib prison. When military intelligence officers pressured him to participate in the interrogation of Iraqi prisoners, Kimbro refused. The U.S. Army’s Taguba report mentions two other soldiers who intervened or reported the incidents to the chain of command. The laudable acts of these three soldiers cast the only glimmer of humanity on an otherwise vile landscape.

In this desolate landscape, one group is conspicuously absent: physicians. Physicians, whose noble aim is to alleviate the suffering of humankind, appear to have vanished at the most inopportune time, when dozens of their patients needed them most. Where did all the military physicians go?

Only two medics appear in the Taguba report. One observed that, during his tour of the prison, new male prisoners were made to wear female underwear. He believed the purpose of this humiliation was “somehow to break them down.” The other medic was also a witness. It seems clear, however, that other physicians must have witnessed or been involved in the interrogation of prisoners. The interrogation manual issued to the U.S. military requires medics to supervise certain techniques, such as food deprivation: “keeping prisoners hungry must be supervised by medical personnel.” They are also needed to ensure prisoners are fit for interrogation: “wounded or medically burdened detainees must be medically clear prior to interrogation.”

The United Nations convention against torture and other cruel, inhuman or degrading treatment or punishment categorically forbids the use of torture: “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political stability or any other public emergency, may be invoked as a justification of torture.” The United States is a party to this convention. The European Convention on Human Rights likewise contains a prohibition on torture, without exception.

Physicians are prohibited from participating in any kind of torture by the 1975 Declaration of Tokyo of the World Medical Association. But dismissing the inaction of physicians by relying on the regulatory literature is facile. Under Saddam Hussein, hundreds of Iraqi physicians were involved in unspeakable acts of torture, including cutting off ears. Many of the physicians were forced to participate, under threat of death to themselves and their families, by Uday Hussein’s paramilitary forces.

In these circumstances, when the alternative is death, it would be unreasonable to expect doctors to refuse to participate. The physicians are acting under duress. This was not the case at Abu Ghraib. Noncomplying physicians did not expect bodily harm to result from their refusal to participate or from reporting the acts of torture to their superiors. Speaking out would not have entailed an immeasurable sacrifice. It may well be that some did speak out and were reassigned elsewhere, but for those who acquiesced, their silence legitimized acts that violated the most fundamental tenets of the medical profession. Physicians too became complicit in the moral erosion which led to the shameful events at the Abu Ghraib prison.

The Hippocratic Oath, although dated in places, remains valid in others: “Into whatever houses I enter, I will go into them for the benefit of the sick, and will abstain from every voluntary act of mischief and corruption.” Even in the face of significant command pressure, physicians are bound by ethical duties to their patients. In Abu Ghraib, these duties conflicted with their duty to obey military orders. The physicians had to balance the two weighty obligations and decide which would outweigh the other. The silence of at least some suggests that they chose the easier path. Their choice reflects another regrettably low point in medicine’s long history.

*

Daniel K. Sokol is a medical ethicist at the Imperial College Faculty of Medicine, London. Ronald P. Sokol is an attorney-at-law in Aix-en-Provence, France, and a former law professor at the University of Virginia.

[Not to be reproduced without the permission of the authors.]