(1) Alasdair MacIntyre, After Virtue 205 (Notre Dame: University of Notre Dame Press, 1981):

[T]he fact that the self has to find its moral identity in and through its membership in communities . . . does not entail that the self has to accept the moral limitations of the particularity of those forms of community. Without those moral particularities to begin from there would never be anywhere to begin; but it is in moving forward from such particularity that the search for the good, for the universal, consists.

(2) Thomas Shaffer, The Moral Theology of Atticus Finch, 42 U. Pitt. L. Rev. 181, 218 (1981):

[A] lawyer has a choice in defining his function to himself. He can define it with criteria that come from within the profession itself, arguing that the function of the profession is useful to the state which licenses lawyers and that his behavior in any circumstance can be determined by reference to this function. The "adversary ethic" is that sort of definition of the function of lawyers. Its failure as an ethic is its argument (often implicit) that the purposes of the state are self-evidently good.

(3) William Barrett, The Illusion of Technique 246 (New York: Anchor Press/Doubleday, 1978):

And perhaps it is just in this resistance to power in the world today that this moral will may bring a central message for our time. What else is the burden of Solzhenitsyn's life and writings? We may read his books as political reportage on the Soviet Union or to satisfy our sociological curiosity about the strange hierarchies of survival in the prison camps. But their deeper story is something else. They are above all moral documents -- the story of a whole population struggling against the corruption forced upon them by a political regime. To survive under that regime is to practice continual duplicity, treachery toward one's neighbor, and to develop a brutal callousness toward life generally. And the miracle is that the moral will still survives in this people; that there are individuals who carry on the struggle for no more heroic reason than to stay decent -- above all, "not to become a scoundrel."

(4) James White, When Words Lose Their Meaning: Constitutions and Reconstitutions of Language, Character, and Community 282 (Chicago: University of Chicago Press, 1984):

In a world of flux, where self and culture are in a process of continuous and reciprocal change, the ground of judgment on which we can best rely is the ground we make with each other when we talk.

(5) Robert Bellah, Richard Madsen, William Sullivan, Ann Swidled, and Steven Tipton, Habits of the Heart: Individualism and Commitment in American Life 282 (Berkeley: University of California Press, 1985):

[W]e have never been, and still are not, a collection of private individuals who, except for a conscious contract to create a minimal government, have nothing in common. Our lives make sense in a thousand ways, most of which we are unaware of, because of traditions that are centuries, if not millennia, old. It is these traditions that help us to know that it does make a difference who we are and how we treat one another.

(6) Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality 28-29 (1983):

[T]he political community is probably the closest we can come to a world of common meanings. Language, history, and culture come together (come more closely together here than anywhere else) to produce a collective consciousness. National character, conceived as a fixed and permanent mental set, is obviously a myth; but the sharing of sensibilities and intuitions among the members of a historical community is a fact of life. Sometimes political and historical communities don't coincide, and there may well be a growing number of states in the world today where sensibilities and intuitions aren't readily shared; the sharing takes place in smaller units. And then, perhaps, we should look for some way to adjust distributive decisions to the requirements of those units. But this adjustment must itself be worked out politically, and its precise character will depend upon understandings shared among the citizens about the value of cultural diversity, local autonomy, and so on. It is to these understandings that we must appeal when we make our arguments--all of us, not philosophers alone; for in matters of morality, argument simply is the appeal to common meanings.

(7) Donald D. Landon, Lawyers and Localities: The Interaction of Community Context and Professionalism, 1982 Am. B. Res. Found. J. 459, at 459, 461-62, 468-69, 476-77, 484-85:

The community context in which the practice of law occurs can have significant effects on the nature of that practice and on the professional orientation of practitioners. . . .

* * * *

The size of the community may very well affect the degree to which an attorney can develop the attitudes that in theory distinguish the professions from other occupations. Thus, one may ask whether the small town lawyer is less likely to achieve the professional ideal of independence than is the lawyer in an urban setting....

Carlin found that city solo practitioners felt deprofessionalized by their dependence upon police, bail bondsmen, political connections, and the like, for getting and handling business. Economic stresses allowed them little autonomy in selecting cases and clients. Survival was the name of the game, and many said they conducted their practice more as businessmen than as independent professionals. Hughes observed earlier that solo practitioners in metropolitan settings are "utterly captives and chore boys of their clients."

But what about the little-studied rural lawyer? Does rural law practice, where large firms and specialization are unknown, carry implicit risks for professional independence? Law practice, by its very character, is sensitive to community pressures, partly because the lawyer's work is relatively ambiguous. His only exclusive and explicit role is to represent his clients in court. Unlike the physician, whose practice area is explicitly defined, the lawyer's role is largely defined by a client's wishes. This ambiguity would seem to create the conditions for considerable community influence on the manner in which the individual practices his profession.

* * * *

The lawyer practicing in a small town experiences his local community differently than does the lawyer practicing in an urban or metropolitan setting. In the small town, relationships of every sort are presumed to be on a more personal level. The web of group associations and the likelihood of future encounters tend to narrow the range of motivations that apply to each situation. Friendship, intimacy, and altruism are the orienting principles of association, and even if the actual patterns of association contradict that image, the image remains intact in the mind of the small town actor. Obviously the lawyer experiences considerable cross-pressure as he functions in his legal role in such a setting. Clients are friends, adversaries are acquaintances, disputes often carry community-wide implications, and his independence may be constantly under the pressure of intimacy, familiarity, and community scrutiny.

The small town presumably involves greater group pressures to conform to community values and orientations. Small town lawyers are typically products of the settings in which they practice. Thus the "moral notions of the community" are likely to be internalized long before the small town citizen becomes a professional practitioner. The local ideological pattern includes a conception of the community, a set of preferences as to who (what principles) shall rule, a sense of social hierarchy both cultural and economic, and a sense of what constitutes an appropriate method of allocating values. It may also involve a uniquely local sense of what constitutes (and doesn't constitute) a legal problem. To practice law successfully within such realities requires a balancing of community roles and the professional role. Certainly, the small town practitioner does not have the protection a firm specialist enjoys in a metropolitan setting. Unlike the urban practitioner, the small town lawyer is not free from community-wide scrutiny and cannot insulate himself from a wide range of value-sensitive matters because he is a specialist. His is a broad-based practice. His economic survival is contingent upon working with a wide variety of cases and having good relations with all of the community. Thus, he is exposed to the full array of pressures.

Moreover, the selection of a small town setting in which to practice law implies something about the aspirations of the attorney. The rural lawyer is not likely to aspire to national prominence. His "aspiration group" is more likely to be local or regional in character. Thus from the viewpoint of opinion formation, the local context is likely very important for the small town attorney. As a member of the ongoing local system and with few, if any, aspirations beyond it, he will probably take those actions likely to lead to his personal enhancement locally. He is likely to reflect the "model character" which any given social system tends to create as a product of its own operations. Thus he is likely to live in a universe of local groups, local opinions, and local expectations. All of this he must try to integrate into his professional role....

Finally, the small town setting may affect the professional pattern of the practitioner because of his high visibility or identity. The small group setting tends to heighten the visibility and identity of all its members. This high visibility, of course, has positive value for the lawyer because it means clients--professional opportunity. But it also means that the lawyer is quickly caught up in the working and functioning of the community, which may involve some loss of professional independence.

* * * *

Moreover, relying as they must upon clients for economic survival, the lawyers as a group are more client than colleague oriented. And where the context of law practice is solo rather than firm, the isolation from close colleague interaction only increases the importance of clients as a reference group.

Also, the lawyer works in a social context that is deeply imbued with business values. Monetary success is the universal symbol of achievement. He strives for it while he strives for professional respectability since in the opinion of those who judge his work, the two may not be clearly separable.

* * * *

This preliminary probe into contextual source of intraprofessional variation within the bar cautions against the assumption that professions are homogeneous communities imbued with a singular value orientation and carry on their work in a common manner in widely diverse settings. In fact, because of the relative ambiguity surrounding the precise professional role of the attorney, the legal profession appears to be particularly responsive to variations in the community context where legal services are delivered. Where community size precludes the economic feasibility of specialization, it also deters the process of internal stratification of the bar. Under such circumstances the probabilities of professional solidarity among lawyers in rural settings are enhanced as compared with metropolitan settings, where the bar distributes itself along a hierarchical dimension ranging from elite firm practice to marginal solo practice. But while the small town context appears to protect the bar from the centrifugal forces of stratification that is so apparent in the metropolitan setting, the rural setting appears as well to augment the forces that challenge professional independence. The smaller community context embeds the attorney rather deeply into the local life and ethos with the result that local opinion and values have a salience for his practice patterns that are not typical of more cosmopolitan settings. Despite his comparatively favorable income from the practice of law, the small town attorney is also typically involved in extraprofessional ventures which may foster a less explicit professional self-concept as lawyer.

The practice setting also significantly shapes the meaning of practice patterns. The solo practitioner in metropolitan settings deals with a large number of small matters in a context where his cases and clients are defined as residual, marginal matters. In a highly stratified setting, he is perceived as a lower stratum practitioner, scavenging for work that elite lawyers are happy to avoid. Practice patterns among lawyers in small towns are similar to practice patterns of the metropolitan solo practitioner--but with a difference. The small town lawyer is not at the bottom of the local professional hierarchy. His practice pattern is shared by all his colleagues, and thus it is not experienced as discrediting.

Overall, the bar is seen to be divided not only by specialization and the attendant stratification of the profession, but it is further divided by the size and character of the local context in which the practice of law occurs. Rather than a homogeneous professional subculture, the bar may better be described as a relatively loosely knit group with tenuous collegial ties and whose professional attributes may be undermined by the circumstances of the local settings in which they practice.

(8) Roberto Unger, Passions 20-21 (New York: Free Press, 1984):

To satisfy our longing for acceptance and recognition, to be intimately assured that we have a place in the world, and to be freed by this assurance for a life of action and encounter, we must open ourselves to personal attachments and communal engagements when terms we cannot predefine and whose course we cannot control. Each of these ventures into a life of longing for other people threatens to create a craven dependence and to submerge our individual selves under group identities and social roles.

We cannot obtain the categories that allow us to describe our situation and to reflect about ourselves unless we share in specific, historically conditioned traditions of discourse that none of us authored individually. Without these categories the imagination cannot work. But with them we cannot easily prevent ourselves from becoming the unwitting reproducers of a shared picture of the world. If we stray too far or too quickly from the collective script we are left without a way to converse.

(9) Stanley Hauerwas, A Community of Character 2 (1981):

Any community and polity is known and should be judged by the kind of people it develops. The truest politics, therefore is that concerned with the development of virtue.

(10) Philip Selznick, The Demands of the Community, Center Magazine 33 (January/February, 1987):

[W]elfare liberalism strains toward a communitarian perspective. But it is held back by an irrepressible commitment to the idea that individuals must decide for themselves what it means to be free and what ends should be pursued. The continuity of classical and welfare liberalism is here vigorously reaffirmed. The individual is the proper locus of moral choice. The political community should be neutral with respect to ends; it should not say what is the good life; it should provide only a framework for discourse and a vehicle for registering individual preference.

Modern liberals are by no means consistent on this issue, nor do they wholeheartedly embrace the concept of a neutral, uncommitted state. But they are easy prey to the transition from a well-meaning doctrine of individual choice and respect for diversity to a subjective view of the good with its corollary that values are radically relative to interests and situations. On such a view the public interest becomes epiphenomenal; only special interests are real. The result is an erosion of confidence in collective judgment and an impoverishment of the public realm.

* * * *

Sociologists have long rejected the atomistic view of man put forward in the seventeenth and eighteenth centuries. Society is not made up of preformed, wholly competent individuals endowed by nature with reason and self-consciousness. In the beginning is society, not the individual. To say that humans are social animals is to say that they depend on others for psychological sustenance, including the formation of their personalities.

* * * *

[M]oral competence depends on the nature and quality of social participation. A practical lesson is that morality is to be taught and encouraged, not by precept but by enlarging opportunities for communication, interdependence, and responsibility.

* * * *

A community is not a special-purpose organization. It is a comprehensive framework for social life. I emphasize "framework" because, although in a genuine community there must be a minimum of integration, including shared symbolic experience, we also expect to find relatively autonomous activities, groups, and institutions. Put another way, communities are, ideally, settings within which mediated participation takes place. The individual is bound into a community by way of participation in more limited, more person-centered groups. The community is a locus of commitment, to be sure, but within it is preserved a substantial degree of autonomy and rationality.

* * * *

A communitarian morality takes as its starting-point what I shall call the implicated self. This idea can be conveyed, perhaps, by considering the case of Mrs. Jellyby, a notorious character in Charles Dickens's novel, Bleak House. Mrs. Jellyby practiced what Dickens called "telescopic philanthropy." She was indifferent to the chaos in her household and to the welfare of her husband and children. All her philanthropic energies were directed to furthering the prosperity of an African people who lived on the left bank of the Niger. Mrs. Jellyby is described as "a pretty, very diminutive, plump woman . . . with handsome eyes, though they had a curious habit of seeming to look a long way off. As if . . . they could see nothing nearer than Africa."

Telescopic philanthropy is still philanthropy, which may be better than nothing from a moral point of view and can often be justified. But charity, it is said, begins at home. As a general rule we may well doubt the authenticity of sentiments that slight the interests of those in whom one's own life is directly involved. Mrs. Jellyby is a comic figure in the novel, as well as an object of skepticism and scorn, but there would not be the same response if she were devoted to her family's health and comfort at the cost of neglecting her African friends. At best she seems to have her priorities wrong.

If we ask for what and to whom we are responsible the answer must depend, to a large extent, on a personal history and on recognizing how we have affected the lives and situations of others. These effects flow from our very presence and from our actions, but not necessarily from explicit choices. Responsibility presumes choice, but no unconditioned choice. Parents are responsible for the children they have, not for those they might have liked to have or only for those they chose to have.

A morality of the implicated self builds on the understanding that our deepest and most important obligations flow from identity and relatedness, not from consent. Consent suggests agreement, bargaining, reciprocity, specificity. But the obligations I have in mind are characteristically open-ended and unspecific; they are often unilateral; and they are largely involuntary, at least in detail.

* * * *

A communitarian morality is not at its core a philosophy of liberation. The central value is not freedom or independence but belonging. (This is where it most sharply departs from the liberal tradition.) At the same time, what it means to belong must encompass respect for the integrity of the person. The claim is that personhood is best served in and through social participation. But what kind of participation? That is the crux.

* * * *

A communitarian morality is not rights-centered, but it is not opposed to rights or indifferent to them or causal about them. From the perspective of community, however, rights are derivative and secondary. Duties tell us what we must do; they summon us to action. Rights, however, as Jeremy Waldron points out in an article in Ethics, October 1981, "do not provide reasons for acting, at least not for the people who have them." We may or may not invoke the rights we have or think we have.

Liberalism is much preoccupied with rights, understandably so because it is a philosophy of liberation, not of belonging. This preoccupation has merit, but it too easily separates liberty from association and therefore from discipline and duty. In the process, rights become abstract, unsituated, and absolute.

* * * *

Civic virtue becomes an empty symbolism if it is unsupported by the continuities of social life. This means above all that people must have the resources that make character possible and participation effective. It is easy to give lip service to this proposition, but if it were taken to heart there would be a radical revision of American priorities.

* * * *

Critical morality is not made up out of whole cloth; it is not a rootless figment of the moral imagination. Rather, it is grounded in the experience and ethos of a particular culture and, at the same time, reaches within and beyond that experience for objectively warranted principles of criticism. We have no real choice. The prejudgments that form our minds are necessary starting-points. They are necessary to reflection because they are, in varying degrees, vehicles of congealed meaning and tacit understanding.

The fact that such prejudgment can also be prejudicial in the modern sense of biased or bigoted, or a reflex of ignorance, or shortsighted, underlines the need for criticism and reconstruction. But it does not cancel the claim of a received morality to respectful and sympathetic examination. That is so because we draw our primary moral sustenance from the experience of belonging to a particular culture. There is much to be gained, in strength and subtlety, from intimate acquaintance with a distinctive morality. The communicant experiences a tradition from within; appreciates the spirit as well as the letter of a rule; draws self-confidence from a familiar idiom; teaches by way of narrative and example; brings general principles to bear without rudely imposing an external ethic.

* * * *

The price of such fidelity, from the standpoint of critical morality, is that parochial experience may not be taken as final or treated as an unqualified end in itself. There must be a corollary commitment to press the particular into the service of the general, that is, to draw from one's special history a universal message. To do so is, inevitably, to create a basis for criticizing one's own heritage, not only from within but also in the light of other experiences and more comprehensive interests.

(11) Wayne D. Brazil, Reflections on Community, Responsibility and Legal Education, 9 J. Legal Professor 93, 95-99 (1984):

When I talk about deterioration in our sense of community, what do I mean?

Among other things I am troubled by how out of vogue it has become to be idealistic. I have the feeling that students who are openly concerned about social issues are, regardless of their politics, increasingly isolated -- they tend to be viewed by the majority as quixotic, or silly, or even psychologically imbalanced.

I am particularly concerned about the professional interests of our best students. Some of these, but not many, get involved in high visibility "causes" while in law school. But very few of the people in the top of the class seem committed to careers in politics, government, or social service. And some of our students who express an interest in jobs in the public sector seem motivated not by desire to serve, but by recognition that they cannot successfully compete for the "better" jobs in the private market. Too often those who are entering public life simply aren't the best and the brightest.

Another indicator of the state of student "morale" (in the literal sense) is the prevailing attitude toward the course in professional responsibility-legal ethics. One might expect students to view this subject as among the most vital and important in the curriculum, since it covers such big questions about what responsibilities accompany the power of being a lawyer. Unfortunately, however, many students seem to approach this course with an enervating blend of cynicism and derision.

Facts like these about current student interests and attitudes are especially troubling because among all age strata we expect the young to be the most idealistic. If our young people are predominantly cynical and selfish, our greatest source of energy and initiative for improving the quality of our society is in jeopardy.

I would be remiss, however, if I illustrated my point about the current state of our sense of community only with examples from students. For the sake of balance, and to bring the matter even closer to home, I should cite evidence based on the behavior of faculty. I will use myself as my prime example.

I teach constitutional law and civil procedure, two big, core courses. One is primarily about power--the great power of government--how it is distributed and how it is contained in the name of the fundamental rights of the people. The other course is primarily about process--about the mechanism our society has developed for peacefully resolving conflicts.

I was attracted to these courses because the legal doctrine in them is the product of our society's effort to resolve tensions between some of our most basic human values. Ironically, however, I have spent almost no time in class exploring, or asking students to explore, which of our values are most basic, most important. We talk very little about what ought to be--and why.

In constitutional law, for example, we do not directly ask what kind of society we want--a question that must precede questions about which legal rules are most likely to be beneficial. And in civil procedure we almost never step outside our adjudicatory system to ask questions about it. We don't try to assess its health as a system. And we don't seriously explore the possibility that alternative systems might better serve our values.

Between my students and me there are considerable intellectual resources, but we tend to use them for relatively "small" purposes--to expose inconsistencies, to seek out unarticulated assumptions, or to track doctrinal subtleties. Not surprisingly, lawyers who emerge from such training are adept at pursuit of the small--the technical and the tactical--but are neither equipped nor inspired to turn some of their considerable talents to larger purposes.

Why have I drifted into my narrow pedagogical canyon? Why have I retreated so thoroughly into technical analysis? There are, presumably, many reasons. One is fear of being inept. I can appear more intelligent and retain greater control over my courses by dissecting appellate opinions than by venturing into larger areas of inquiry. I am poorly trained to analyze social forces, poorly trained to explore the social sources or social effects of legal doctrine, poorly trained to assess the relative importance of competing values, poorly trained even to define the word important.

But my title is professor, not technician. And maybe I am being irresponsible when I respond to the disparity between my equipment and the difficulty of attacking the big issues by ignoring those issues. Maybe I should work on improving my equipment.

In my civil procedure course I might rationalize my approach by arguing that the production of skilled technicians necessarily assures the smooth functioning of the adjudicatory machine. That, of course, is a widely accepted premise about the adversary system: many lawyers believe that if opposing counsel are competent and motivated, the truth will out--and that it will out as efficiently as possible. But that premise is unproven and largely unexamined. How do I know it is true? And shouldn't the current clamor about the crisis in judicial administration--the predictions that our adjudicatory system is in danger of collapsing of its own economic and administrative weight--cause me at least to question the notion that all we need for good machine is capable operators trained in time honored methods?

There are additional reasons, more directly related to the themes that integrate this essay, for my reluctance to spend time during my courses pursuing larger questions about values and social forces.

I am a creature of my times. I want to fit in with my times. And these are times when idealism, commitment to community, and open exploration of values seem disfavored. So I am afraid to be idealistic. I am afraid that I might be viewed by my students and my colleagues as quixotic, or silly, or psychologically imbalance. I am afraid my students will ignore even my message about intellectual integrity if they think I am not tough-minded. And I am afraid they will think I am not tough- minded if I pursue the big questions that carry such emotional baggage.

I also must confess that I am reluctant to accept the responsibility that comes with taking positions.

Please don't misunderstand. This is not a plea to be political. It is not a call to abandon mastery of analysis, doctrine, or trade skills as primary pedagogical objectives. It is simply an admission that the content of my courses has been affected too much by lack of courage and too little by responsible decisions about which uses of my course time would best serve my students and my society.

I suspect I am not the only teacher who has fallen into these ways. In fact, I suspect that the strain in my sense of community and the erosion of my sense of individual responsibility reflect general trends of our times.

I have a hunch that there is a direct relationship between the intensity of our anxiety about the future and the strength of our sense of community. The weaker our sense of connection to those around us, the more fearful we are likely to be. If our sense of connection is strained, we have less confidence that our community will be there to help us in time of need.

I also suspect that there is a direct relationship between weakness in our sense of community and the narcissism that has been associated so often with the 1970's and early 1980's. Is seems natural for people to become preoccupied with themselves when they lose confidence in their community. If we cannot count on our society, our society becomes less real to us--and we turn in toward ourselves.

There is one more piece in this psychological circle. As our sense of connection to our community weakens, our suspicion may grow. If society is not to be trusted to help us, perhaps it is against us. As our confidence in the group wanes, we may begin to blame the group for our difficulties. Gradually we may come to view our community not as a crucial source of comfort, but as the source of our problems. Society is no longer our support, but our scapegoat.

This completes the cycle that produces the final irony of our times: while we are preoccupied with ourselves, we refuse to accept responsibility for ourselves.

I believe that all of us, as judges, as lawyers, as citizens blessed by history with special opportunities, have a responsibility to work toward breaking this cycle. How each of us can best contribute will vary with our circumstances. I hope that these words mark the beginning for me--and that I can muster the courage to take these concerns in a meaningful way into my classroom.

 

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