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Practical
Moral Philosophy for Lawyers
Can We Teach Virtue?
 Teachers of lawyer
ethics confront, at the insistence of students (and even teacher
colleagues), the claim that ethics cannot be taught. The assumption,
seems to follow an old adage: "You can't teach an old dog
new tricks." Law students, when they take up the study of
lawyer ethics, assume they are old dogs. But there is little
new is this time worn, if all too human assumption. From the
time of Plato, this skepticism about the teaching of virtue,
and the great difficulty when it is undertaken, has been a staple
of moral philosophical debate.
In legal education circles, we talk far more about professional
responsibility than we do about virtue, but then in legal education
we have adopted some rather peculiar notions of how to deal with
this notion of professional responsibility. Basically, we've
come to the conclusion that law schools have some duty to do
"something" but we haven't been all that imaginative
(in most quarters) about what we'll end up teaching in the name
of lawyer ethics. Indeed, that we call the course in which this
teaching is to take place "legal ethics" tips our hand.
We are far more interested in the rules that govern lawyer conduct
than we are interested in ethics. We
have, for all practical purposes, given over the teaching of
professional responsibility to those who envision it as the law
of lawyering.
The real problem is not in what we call the course in which
lawyer ethics is to be taught but whether we can, or will talk
about virtue. It seems fair to say that most students don't have
faith that a course called professional responsibility or legal
ethics is going to have much effect on their character or even
on their moral sensibilities. "Why learn something I already
know?" (The old dog shows up on the scene again.) "Why
talk about something we can't do anything about?" (One sees
here the prosaic and practicalist mind-set that is so common
in law schools.) "Why talk about ethics when we know one's
fundamental values and beliefs are not subject to ready change?"
(Now, the student is raising a far more interesting question.)
"Why talk about something over which there is so much disagreement?"
(A rather odd question, it seems, from a student who is heading
out to make a life in the great swirl of conflict.) In these
questions and more, students of lawyer ethics begin with a discouraging
array of skeptical notions about ethics and whether anything
called ethics can be taught.
We hear this claim of students that "you can't teach
ethics" and we need to take what they say seriously, even
if we have decided that we must, in some way, do what cannot
be done. We begin by listening more closely to what is being
voiced about ethics and the skeptical concerns that are being
advanced:
- "I have no desire to be a saint and consequently don't
have much time for ethics." Somewhere along the way, we
hear, "lawyers aren't saints, and no one expects them to
be."
- "I know there are some who think we'd be a lot better
off if we focused more on ethics. I'm not sure they are right
about that. Where has all our talk and concern about ethics gotten
us to date? In fact, I'm a bit suspicious of anyone who spends
too much time trying to think about ethics. Wouldn't that time
be just as well spent actually doing something?"
- "I'm afraid that the more moralism we subject ourselves
to -- call it ethics, call it whatever you will -- takes us in
the wrong direction. Those who talk about morals usually have
in mind taking back some hard won freedom we've gained. The more
talk about ethics I hear, the less tolerance I experience. The
world may be awash in immoral folks and all manner of garden
variety terrorists who wage war against the innocent and the
rest of us, but will they cease their doings because we make
ourselves more moral. Doubtful. Every effort at moralism seems
to me a form of intellectual and cultural terrorism." [For
a variation on this argument, see "Moral
Certainty Considered Dangerous."]
- "If we aren't careful, when we focus on morals, we end
up destroying objectivity. It is, for me, reason that creates
the great middle-ground where all, but the sociopath, can live
together and respect each other's way of life. If we want to
fairly, equitably and justly resolve the problems that do arise
between neighbors and in the world of commerce, then we need
more reason, less morality."
These statements, of course, were not made by any of my students,
but they have uttered words which convey just such sentiments
about ethics (and the teaching of ethics). When we ignore the
rhetoric of our students and their arguments that ethics cannot
be taught, we forego valuable ethical inquiry. It is, one might
thing, in just such rhetorical "tag lines" and other
conventional references to moral, social, and political concerns
in our everyday conversations, that we see the first clues of
what Roger Schank calls "culturally common stories."
[Roger Schank, Tell Me a Story: A New Look at
Real and Artificial Memory 37-40 (New York: Charles Scribner's
Sons, 1990)]
Can ethics be
taught? For a different perspective we might reframe the question
and ask: Do law students leave law school with the ethics they
bring with them? If our students don't leave in the same condition
in which they arrived, then it might be said, that we have, in
our desire to teach them the way of lawyers and the lawyer ethic,
an accompanied moral perspective (manifested as it is, in so
many varied ways).
When we take up
lawyer ethics we arrive in the classroom with an historical past,
a past thought to be formative for our ethics. Thus, the notion
that we already have whatever ethics we are going to have and
that we can't expect to teach ethics to adults. With ethics already
in place, what can be taught?
I recall a student some years ago commenting on how the first
year of law school was like arriving in the middle of a movie.
That observation about legal education could be said of ethics
as well. Ethics, unlike mathematics, typing, and property law,
does not seem to have a discrete beginning. In mathematics you
must learn to count, to add and subtract, before you multiply
and divide. Algebra comes before calculus. In learning how to
type (or to do something more complex like learning another language),
we proceed by learning first things first. But in ethics we seem
never to start at the beginning.
If ethics cannot
be taught, can we not at least teach ourselves how the ethics
we have already got works? But, as Stanley Fish points out in
Doing What Comes Naturally 38-39 (Durham: Duke University
Press, 1989), there are problems in even this simple task:
One would begin, of course, with the optimal context, a face-to-face
exchange of utterances between two people who know each other
and who are able, in the event of confusion or discontinuity
or obscurity, to put questions to one another. A less certain
but relatively risk-free form of communication would occur between
persons who know each other, but who are separated either by
time or space and are therefore reduced to the medium of letter
or telegram or telephone; such persons would be hearing or reading
one another against the background of a history of shared experiences
and common concerns, and that background would operate in the
absence of physical proximity as a constraint on interpretation.
Constraints of another kind are operative when communication
is between persons who don't know each other but who speak from
within a context that stabilizes the direction and shape of their
understandings: clerks and customers in a department store, teachers
and students on the first day of class, waiters and patrons in
a restaurant, and so on. Serious difficulties begin to set in
when that kind of stabilizing context is absent. A coincidence
of concerns is serendipitous rather than probable because one
party is speaking or writing to a heterogeneous audience and
hoping that the right-minded listener or reader is tuning in;
television commentators, direct-mail advertisers, and newspaper
columnists are in this situation and are always in danger of
being misunderstood because of miscalculation, special vocabularies,
and unanticipated responses. As we continue down the scale, things
go from bad to worse as the incommensurabilities of other times
and other cultures are added to the difficulties occasioned by
physical distance. Finally, at the outermost reaches of this
declination from sure and transparent verbal encounters we arrive
at literature, and especially at fiction; here interpretive hazards
seem to be everywhere and without a check as we attempt to fix
the meanings and intentions of long-dead authors whose words
have reference not to a world that has passed from the earth
but to a world that never was except in the interior reaches
of their imaginations. In other cases, the interpretive efforts
of readers and listeners are tied, even if in some attenuated
way, to specifiable empirical conditions, but in the case of
fiction and drama those conditions are a construct of the author
and in turn must be reconstructed, without the aid of extramental
entities, by readers and listeners.
--What do we know about each other in a law school classroom?
How can I, your teacher, know you, the student? Do you,
the students know me, your teacher? What do we know
about each other? Following Fish, we might argue ethics can't
be taught simply because we do not know each other.
--Fish contends that an "optimal context" for understanding
each other requires a "history of shared experiences and
common concerns." What history of shared experiences and
concerns do students and teachers of ethics have? What interpretative
frameworks for ethical understanding do we share?
--Do men teachers and women students have "common concerns"
and "shared experiences"? Some feminists argue they
do not. The humanist perspective suggests they do. Must one choose
between feminism and humanism? If we find a way to steer clear
of the feminism/humanism dilemma, what are we to make of the
experiences and concerns of those of different economic classes
("haves" and "have nots"), or different geographies
of culture (city and country; north and south; east and west)?
What shared histories do African Americans and white Americans
claim?
 Stanley
Fish & Moral Discourse
How does the contention
that ethics cannot be taught square with the fear of still other
students that the real danger of ethical teaching is indoctrination?
Indoctrination suggests that ethics can indeed be taught.
 Exercise: Taking
Account of Skepticism
Notes
1. I do not use moral skepticism as moral
philosophers use it, but rather as the kind of lay skepticism
we have about the value of a particular endeavor. On the more
exacting use in moral philosphy, see Moral
Skepticism in the Internet Encyclopedia of Philosophy.
2. Like, moral skepticism, virtue as a term
of art in moral philosophy is not fully explored here. On Virtue Theory,
see the entry in the Internet Encyclopedia of Philosophy.
Swimming Upstream
Argument
Against Reticence in the Teaching of Virtue
arguing that readers of Seymour Wishman's Confessions
of a Criminal Lawyer are invited to engage in moral discourse
and that using the Wishman text we can try to teach virtue
The
Teaching of Thomas Shaffer
a review essay exploring the teaching materials that most closely reflect
the pedagogy in Practical Moral Philosophy for Lawyers Two
Moralists Argue About the Teaching of Ethics
conversation published in the Legal Studies Forum
On Teaching
Virtue
a lawyer professor argues that ethics can be learned; teaching ethics,
however, raises problems
Plato & Socrates
Plato
& Socrates on the Teaching of Virtue
returning to the early history of the first writings about the teaching
of virtue
The Law School Classroom
Confused
Teachers: Scenes From the Classroom
Professor Elkins visits classrooms and interviews law teachers about
their legal ethics courses
Miscellaneous
Mistakes
in Teaching Ethics
essay by Professor James Toner, a military ethics teacher
The
Moral Duty of Promoting Political Conflict
Professor Amelie Oksenberg Rorty, Brandeis University [ response
to Professor Rorty's paper]
Teaching
the Virtues
Christina Hoff Sommers, Associate Professor of Philosophy, Clark University.
Can
Virtue Be Taught? And, If So, Should It Be Taught?
essay by philosophy professors, raising questions about Professer
Sommers position, concluding that the answer is yes, but cautious about
claims it can be done
Teaching
the Ethics of Diversity
an account of a course by Professor Lani Roberts, Department of
Philosophy, Oregon State University
Dewey's
Conception of "Virtue" and its Educational Implications
Suzanne Rice, University of Kansas [ a
response to the essay]
How
Not to Teach Values: A Critical Look at Character Education
Elkins:
Fragments
Bibliographical
Sources: On Teaching Legal Ethics
Course
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