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Practical
Moral Philosophy for Lawyers
A Teacher's Assumptions
In one of Plato's Socratic dialogues, Protagoras, the dialogue
begins with Socrates questioning an impetuous young Hippocrates,
who has roused Socrates from an early morning sleep to secure
an introduction to Protagoras, a popular teacher who claims to
teach his students sophos (wisdom). The questions Socrates puts
to Hippocrates makes clear that the young Hippocrates has not
thought carefully about the course of instruction he intends
to pursue. (Of course, there are times when teachers too are
unreflective about what set out to do.) In the conversation between
Socrates and Hippocrates we begin to see how unexamined assumptions
bear heavily on what we, with much enthusiasm, set out to do.
Ethics depends upon assumptions, about each other, the world,
and ourselves. Most assumptions are implicit. We make them without
giving thought to their existence or without articulating them.
It would be difficult, if not impossible, to make all our assumptions
explicit. And yet, some of our implicit assumptions affect us
adversely, at times perversely. An ethical life involves "living
out" these assumptions, even as we set out to discover what
the assumptions are and how they are enacted in our lives. Charles
Taylor, in a brilliant philosophical analysis of moral self identity,
argues that it is these assumptions we "draw on in any claim
to rightness, part of which we are forced to spell out"
when we have to defend our actions. Taylor goes on to note that
"[t]his articulation can be very difficult and controversial." [Charles Taylor, Sources of the Self: The Making
of Modern Identity 8-9 (Cambridge: Harvard University Press,
1989)]. To make sense of ethics, and how ethics works
in a particular life or a particular profession, we must articulate
the assumptions that frame and shape the moral sensibilities
found in an individual life or in a profession like law.
Since the assumptions you bring with you to this lawyer ethics
course are the "subject" of these "exercises,"
it seems appropriate for your teacher to articulate his pedagogical
assumptions. You are invited to consider each of these assumptions
and to formulate a response. Some of the assumptions may seem
misguided, and, if so, they need to be addressed. There are matters
in which you might want to articulate your own views.
(1) I assume that we must each, in some fashion, have some
curiosity, and questions, about the ethics of lawyers. Would
it be possible, one wonders, to have no questions about the moral
and ethical dimensions of the legal and professional world you
are about to take up?
One might see in this curiosity about the moral dimensions
of professional life a parallel to a more general quality of
mind found among lawyers. Jennifer Jaff makes the connection
this way:
"There is a value to asking questions. We all learn from
asking questions either of ourselves or of others. And the answers
lead to the next question, on and on. Thus, if the teacher can
take the student from question to question, thereby demonstrating
the progression of the teacher's own thought (or a judge's thought
or a court's thought, or a litigant's thought), the student can
begin to visualize what forms the progression of his or her own
thought might take. The ability to formulate the question that
will best advance the inquiry is the skill that students need
to develop to be able to think and learn on their own. Accordingly,
the student must be able to see us, their teachers, in the act
of formulating the best next question. Where we have figured
some things out and reached certain conclusions, the student
needs to see what guided our figuring out, how we got from point
A to point B. By showing our students the questions that we formulated
along the way, we demonstrate how they can reach conclusions
of, and on, their own." [Jennifer Jaff, Frame-Shifting:
An Empowering Methodology for Teaching and Learning Legal Reasoning,
35 J. Legal Educ. 249, 262 (1986)].
[Note: The use of questions in legal education is
often associated with the Socratic
method. Many commentators have observed that the law school version
of questioning has little to do with the historical Socrates and his
philosophical practices. For an effort to put Socrates back into legal
education, see James R. Elkins, Socrates and the Pedagogy of Critique,
14 Legal Stud. F. 231 (1990). Ironically, Jennifer Jaff, criticizes
not only the law-school version of Socratic question, but Socrates
himself. (Jaff, supra, at 259, 262)]
(2) I assume that we come to a study of lawyer ethics with
both skepticism and hope about ethics. When we talk about ethics,
I further assume, we confront in a dramatic way the contradiction
between skepticism and hope.
(3) I assume ethics matters, must be taken seriously, and
that we ignore ethics at peril to ourselves, our communities,
and our profession. I further assume there will be disagreement
on how serious one should be about ethics and whether the peril
I perceive is in fact real or imagined.
I assume that ethics matters to some only because they want
to know enough ethics to avoid trouble. It is anxiety and fear
of possible punishment that drives the study of lawyer ethics
to "bottom-line," to rules which must be observed to
avoid sanctions, to what my colleague, Thomas Shaffer, calls
the bad-man theory of lawyering that assumes everyone operates
as close to the minimal limits of acceptable moral and ethical
standards as possible and that a study of lawyer ethics should
be guided by this preemptive assumption.
(4) I assume that we each begin an inquiry into lawyer
ethics with the belief that individually we are already moral
and ethical.
It is hard to find anyone that will openly express a desire
to be unethical. James Pike said this of our moral ambition:
"The fact is...that virtually every lawyer wants to feel
that he is not only a good lawyer (in the sense of technical
proficiency) but that he is a lawyer of impeccable integrity.
He not only wishes this to be his public image, he wishes to
think this of himself." [James Pike, Beyond
the Law: The Religious and Ethical Meaning of the Lawyer's Vocation
91 (1963)]
"If I am already ethical why talk about ethics at all."
"If I am already ethical then ethics cannot be taught, at
least, to me, now." The assumption that we are already ethical
and have no need for ethical study confronts us with a paradox:
"[t]he mind has its ways of keeping us from truths, as well
as leading us to them." [Robert Coles, Legal
Ethics: The Question of Principalities and Powers, 21 B.C.L.
Rev. 1017, 1019 (1980)]
[Note: The assumption that we are already
as ethical as we are ever likely to be sets up the stage for
the ethical trickster. Anthropologists and folklorists remind
us that the trickster is a universal folk hero who brings change
by trickery through his ability to escape harm. Tricksters are
"survivors par excellence." Susan Niditch, Underdogs
and Tricksters: A Prelude to Biblical Folklore xi (San Francisco:
Harper & Row, 1987)("Trickster narratives help us to
cope with the insurmountable and uncontrollable forces in our
own lives personifying and in a sense controlling the chaos that
always threatens.")]
(5) I assume we have enough in common, enough shared experience,
to make a conversation about what it means to be professionally
responsible, and an ethically good lawyer, possible.
We may find that what we share is sometimes less than what
we need, but more often, we assume disagreements before we can
establish and can act on what we have in common. When we undertake
ethical inquiry, it is important to keep in view what we have
in common, what we share, where we stand together. We must find
a way to stand together because we know there will be times we
cannot.
(6) I assume we do not share a common view of what constitutes
a good life, and that indeed, we have fundamentally different
visions of even the Real World in which lawyers practice law.
People see the world in different ways and this is going to
have a bearing on the conversation we construct around lawyer
ethics. There are real differences in how we exercise judgment,
evaluate character, and take on the duties and responsibilities
of professional life. Lawyers devote their lives to different
purposes and projects.
Ethical inquiry will, I assume, subject us to disagreements
and conflicts. Some of us will be troubled by the conflict and
the absence of an authoritative way to resolve our differences.
Ethical inquiry and moral discourse is hard work. Some will
find a conversation about ethics futile; even optimists find
it troubling. One moral philosopher captures the sentiment in
the concern that "[o]ur moral premises are like so many
incommensurable fragments of lost languages. The moral concepts
we use, deprived of the contexts in which they formerly make
sense, have become mere means of expressing our feelings and
manipulating others." [Jeffrey Stout, "Liberal
Society and the Languages of Morals," in Charles H. Reynolds
and Ralph V. Norman (eds.), Community in America: The Challenge
of Habits of the Heart 127-146, at 127 (Berkeley: University
of California Press, 1988)]
(7) I assume that a study of lawyer ethics requires ethical
reflection and introspection. We must talk and write about
ethics so we can see more clearly what moral philosophies we
enact. (Each of us, in a sense, is already a moral philosopher.)
(8) Our assumptions about lawyer ethics are, I suspect,
encoded in the short-hand expressions, conventions, and images
we use for talking and writing about ethics and moral concerns.
(9) I assume that the agendas we bring to ethical inquiry
affect our ability and willingness to engage in moral discourse
and ultimately our character as lawyers.
We come to a conversation about lawyer ethics with "baggage."
Some will resist the exposure of the assumptions embedded in
their agendas; others find the exposure and airing of agendas
exhilarating.
One expects to detect various agendas in conversations with
legal colleagues about ethics. Some of these agendas are open,
obvious, public. Other agendas are hidden, some for devious purposes.
Some are cryptic and require work to decode. Some agendas we
can talk about, others we cannot. Sometimes we can readily identify
an agenda and give it a name, at other times we cannot. Identifying
and working with ethical agendas can be controversial.
(10) I assume that ethical inquiry requires a study not
only of exemplary lawyering but also a study of lawyers who have
turned out to be moral scoundrels. The legal profession has both
exemplary lawyers and a fair number of scoundrels. A study of
lawyer ethics should ignore neither.
(11) I assume that if ethics matters we must attempt to
teach and learn ethics, whatever the difficulty and possibility
of failure. I would go still further: It is never too late
to develop ethical discernment and moral sensibilities. The task
may not be easy, may sometimes (indeed, often) fail, and ethical
learning and teaching may not take place when planned or commanded.
Yet, an extended conversation about ethics is worthwhile, taking
us on a journey we would be remiss not to have taken.
I assume that ethics can be learned (and taught). It is an
assumption that needs talking through, thinking about, puzzling
over; it needs to be challenged. It is an assumption that affects
my teaching and constitutes an underlying ambition for the course
and our conversation. It is what might be called a weight-bearing
assumption. I cannot, however, be certain beyond all doubt that
I am right. I can only hold to the assumption, see how it works,
and watch to see when it seems to be unfounded. It means I stand
open to argument and refutation. In ethical conversation and
argument it is possible to learn that we are wrong, even when
we think we are most right. (Caution: Assumptions founded on
the best of motivations can lead us astray.)
(11) I assume we want a world of caring people. It
is difficult to imagine a world without caring people, a world
without ethics. Colin Turnbull, an anthropologist, describes
a tribe called the Ik who
made cruelty (and other vices) commonplace in their social relations.
In the "Road Warrior" (starring Mel Gibson), we are
presented a post-apocalyptic world in which the dominant ethic
is Darwinian survival; only the powerful (and those the powerful
protect) have any chance to survive. In these horrifying fictive
worlds we witness the collapse of the moral universe. In contrast
to these fictive amoral worlds, we try, in some fashion, in everyday
life to believe in ethics, to believe that each of us has the
capacity to be bound to the other by a standard of care that
makes mutual security possible. Knowing that the web of relations
that holds us together (and protects us from each other) is fragile,
we continue to with hope and faith.
(12) I assume that a moral person will be concerned about
justice. Law is an instrument of justice, and the practice
of law cannot (that is, morally and ethically) be divorced from
justice. There will be, as one might expect, areas of both agreement
and disagreement about what constitutes justice, the nature of
our duty to alleviate suffering, and what we are required to
do and be as ethical lawyers. It is the discussion, debate, argument,
challenge, examination, reflection, and musing upon our agreements
and disagreements about what lawyers do when they act with justice
in mind that gives moral substance to our conversations about
lawyer ethics.
(13) I assume that lawyers can (but often do not) by the nature of their
professional work contribute to a just world.
Lawyers may in reality be nothing more than legal technicians
and sophistic word-plumbers, but most of us do not take up law
to be sophists and technicians. (It may happen to us along the
way, but we don't set out with that as a plan.) We come to law
with stories that reflect diverse motives and purposes in becoming
lawyers, but I know of no one who comes to law that does not
imagine law as an honorable calling and a form of socially significant
work.
[Note: Lawyers have, and are viewed as having,
a special role in American society. It is this prominence in
American social and political life that gives rise to popular
fascination with lawyers and makes lawyers of interest to sociologists,
moral philosophers, cultural critics, novelists, and movie makers.]
Lawyers have a need to see themselves as doing worthwhile
work (of intrinsic value), and in so doing, deserving of a position
in society that deserves respect. Lawyers have a need to see
their work as socially significant, as contributing, in some
way, small or large, to the public good. This claim to "goodness,"
more assumed than questioned, is under close scrutiny by critics
and outside observers of the legal profession. The moral dimension
of our professional practices requires study and conversation
because our claims of "goodness" as lawyers, and consequently
as persons, sometimes doubles as rationalizations of amorality.
(14) Moral discourse (that is, talk of an ethical nature) takes place
in communities where we subscribe to various moral traditions.
Basically, the legal profession is a moral community. We may
not live in the same physical communities and we may have different
kinds of legal practices, but we have taken up, together, an
identifiable ethic--the adversarial ethic--and the traditions
it has created.
Notwithstanding our communal allegiance to law, we continue
to think about ethics (including lawyer ethics) as something
that belongs to an individual, an individual's history, struggles,
and moral sensibilities. Consequently, we take up moral discourse
within the limited strictures placed on it by a culture of individualism.
Individualism, embedded in the deep structure of modern life,
tells us, that each of us stands alone inhabiting a moral island. Each of us, separate
and apart, alone, must make her way in the world.
Paradoxically, law, in the form of contracts, torts, property,
and criminal law, is a language used to describe, interpret,
and give meaning to a relational web of connectedness between
the personal and public, a world of individuals dealing with
each other. Ethical discourse is another way of giving meaning
to this relational web of personal and public, individual and
community. Ethics is the moral web created by human beings as
they take part in the everyday ecology of living. Ethics links
persons and actions to consequences. Ethics helps us experience
and evaluate the harm that follows from choices, decisions, and
actions.
The reconstructive project of moral discourse is work we do
alone (as we entertain moral doubts) and together (as we mutually
question the moral stances that lawyers take). The work we do
is both personal and public. It is individual in the reconstruction
of a vulnerable and fragmented self, social in the rebuilding
of sustainable communities. The project draws on psychological,
political, and spiritual sensibilities. The outcome of the project
will affect the way we experience and locate ourselves in the
world.
[We undertake this project in the knowledge
that others, elsewhere, are engaged in similar tasks, sharing
our frustrations and fears. The reconstruction of ethical life
has become the project of philosophers (Alasdair MacIntyre),
political scientists (Michael Sandel), theologians (Stanley Hauerwas),
sociologists (Manfred Stanley), cultural historians (Huston Smith,
William I. Thompson, Morris Berman) and legal scholars (Thomas
Shaffer, Roberto Unger)]
A hermit living in the mountains would, one might speculate,
have fewer moral concerns than those of us who make our lives
serving others. The hermit can be nasty and brutish. His neighbors,
miles down and around the mountain, do not suffer unduly from
the hermit's foibles and failed character. The hermit's need
for ethics is no greater than his need for a fancy sanitation
system. (There is little worry about environmental pollution
by hermits.) When hermits make a mess of their cabins and clutter
up the woods around their houses there is little public outrage.
(I am not arguing "out of sight, out-of-mind," or that
we can ignore the hermit because we don't see him every day.
Such an argument would be pernicious when applied to those whose
suffering is not immediately visible, the suffering that takes
place in your town, but not mine.) My concern about the ethics
of environment means something different when I live down river
from a polluting factory than it does when I live around the
mountain from a man whose only wastes are those that he can make
with his own body and with the materials he carts up the mountain
on his own back. Ethics, like aesthetics and sanitation, have
radically different meanings depending on our social relations
and political power. When the hermit moves next door, his aesthetics
and ethics will mean something more to me than when he lives
a solitary existence. Lawyers, unlike hermits, always live next
door.
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