Every education is an education in politics, and so it is in the education that comes in the teaching of legal ethics. The first hurdle in thinking about the politics of legal and moral discourse is thinking clearly about politics. We are engaged in politics and political talk all the time, and yet, it is difficult for law teachers to admit their politics. For many, politics suggests activities and people, events and explanations, far removed from classroom teaching. By politics we mean political campaigns, running for political office, carrying out the affairs of elected office. Politics is elections, campaign speeches, attempts to persuade a government official to make a decision favorable to one's interest, a contribution of money to a political officeholder or to someone one aspires to the office. This conception of politics, as the activity of electing and influencing public officials who are publicly elected, makes it difficult to see politics in law, in the law office, and the politics of legal discourse in the classroom.

We need a new conception of politics before we can talk about the politics of law teaching and the politics of legal education. Without a different conception of politics there is little likelihood that the political side of ethics will make sense.

Lawyers become "politicians," and law firms are often enough the home of politics, traditional and otherwise. Law firms bring into the firm politician-lawyers who have left government service, or they actively promote the political ambitions of individual members of the firm. But this kind of involvement in politics by lawyers and the law firm is simply an extension of the electoral conception of politics and does not help us understand the politics of ethics in legal education. Following this electoral conception of politics, those who are not "politicians" can disclaim that what they do is political.

Lawyers, regardless of their role in traditional electoral politics, are nevertheless "political." Many lawyers have an explicit sense of political purpose in their work, and for them lawyering is a stage upon which politics can be practiced, and moral purposes pursued. One reason, among others, that students come to law school is the desire to be in a profession that can effect social change. Whatever the political climate may be, some students (more than we might imagine) are concerned about social justice. The idealism that brings students to law involves a social and political vision. Even these students, however, are often unable to maintain their idealism when confronted with the reality of law schooling (and the reality of so little employment that will draw on their idealism). Gabel and Harris note that this idealism, and the related belief that meaningful reforms can be won through legislative and judicial action, are subject to the

discovery that the expansion of legal rights has only a limited impact on people's real lives, and that even these limited gains can be wiped out by a change in the political climate. The consequence is that by their mid-thirties many lawyers have either lost their early idealism or have had their original cynicism confirmed. And even the most committed find themselves at a loss as to how to integrate their politics with their everyday work as lawyers. [Gabel & Harris, Building Power and Breaking Images: Critical Legal Theory and the Practice of Law, 11 Rev. Law & Soc. Change 369, 369 (1982-83)]

How is politics integral to the art and craft of law and lawyering? First, there is a politics of lawyering that comes from the politics of particular individuals who have delineated political views and who work for and with clients that share these views. But even in the case of political lawyers the deeper, structural relationship between lawyering and politics remains obscure. Richard Wasserstrom observed, in the early 1970s, that:

one possible answer [to the question about the relationship of lawyers and revolutionary politics] is to assert that lawyers, like doctors, schoolteachers, machinists, housewives, and anyone else can be radical--at least in attitude and conviction--in respect to means or ends, but they are such in their capacity as persons rather than any special capacity of attorney. So, on this view there can be revolutionaries who are attorneys just as there are Democrats and Republicans who are attorneys. [Richard Wasserstrom, "Lawyers and Revolution," in Radical Lawyers 74-84, at 87 (J. Black ed., 1971)]

Wasserstrom suggests that if one wants to do politics as a lawyer, politics in the sense of using law to promote social justice, then it can be done, but it is a personal matter. But there is politics in the practice of law even when the lawyer seeks to avoid politics. It is not only the lawyer who seeks social change that is political, but also the lawyer who believes that the practice of law does not mix well with the politics of social change. For this lawyer, law, at its ideological bedrock, is a form of conservatism.

First, the law is conservative in the same way in which language is conservative. It seeks to assimilate everything that happens to that which has happened. It seeks to relate any new phenomenon to what has already been categorized and dealt with. Thus, the lawyer's virtually instinctive intellectual response when he is confronted with a situation is to look for the respects in which that situation is like something that is familiar and that has a place within the realm of understood legal doctrine.

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The second way in which the law is conservative comes about through the very basic character of the lawyer qua lawyer. . . . First, there is the obvious, but important, fact that when an individual is a lawyer he is playing an institutional role. As such, there are all sorts of explicit and implicit constraints upon his thought and action. As a lawyer, there are some things he simply cannot do--without ceasing to play the role of a lawyer. The range of restrictions this basic fact imposes should never be underestimated. Second, the lawyer qua advocate plays an essentially non-critical role. The very essence of the lawyer's institutional role is to submerge himself in his clients' position and to represent that interest in the legal arena as forcefully as possible. . . . [B]eing an advocate in our legal system--where one does not or need not choose one's causes--encourages a non-critical, non-evaluative, uncommitted state of mind. . . . [B]eing an advocate militates against the inclination or need to engage in radical thought or criticism.

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[T]here is a second respect in which the advocate's role runs afoul--at least potentially--of the revolutionary's interests and desires. The attorney's role is intimately connected with securing for his client the greatest possible advantage that can be wrung for him from the institutional system. Paradoxically enough, this leads not to the singlemindeness of purpose that so typically characterizes the revolutionary and the radical, but leads rather to a penchant for compromise, accord and accommodation. The attorney is in many respects the system's broker. If he is skillful, he assesses accurately the maximum advantage he can secure for his client and then settles for that quite gladly. Of course, since the opponent also has an attorney, the premium upon settlement and accommodation is greater still. Although there are, of course, some respects in which litigation is a 'winner-take-all' situation, we should not let these glamorous features obscure the far more significant respects in which the processes of litigation and adjudication derive from and are infected by the model of the market place in which a good bargain consists in each of the parties making concessions and compromises . . . of lawyering.

. . . . [T]he lawyer's ambitions to try to get the best he can for his client within the legal order can be not so much inconsistent with his client's interests as genuinely corruptive of them. For there are innumerable situations in which the lawyer's inclination to take what he can get leads to the compromise of interests and rights about which no accommodation ought ever be tolerated. [Id. at 79-81]

Wasserstrom has described, from the perspective of a philosopher trying to understand the relationship of lawyers to their own professional resistance to social change, how the client-centered ethic in the context of an adversarial system of justice makes for conservative politics. It is the ethical politics of legalism. Judith Shklar defines legalism as "the ethical attitude that holds moral conduct to be a matter of rule following, and moral relationships to consist of duties and rights determined by rules." [Judith Shklar, Legalism 1 (1964)]. Legalism is a form of politics and a matter of ethics because it diverts individual lawyers "away from deliberate, direct, and coordinated political action and channels them instead into piecemeal legal responses to perceived injustices." [Stuart Scheingold, at 162]

[T]he legal system itself contributes to social fragmentation by treating conflicts as isolated cases arising in each person's private life. One way that the dominant ideology contributes to alienation and powerlessness is by generating a false distinction between public and private life, a distinction that translates collective social problems into individual personal matters.

[Gabel and Harris, at 396. Gabel and Harris argue, however, that every dispute "raises the potential for thematizing in both reflection and collective action the relationship between private life and public totality." Id. at 399]

Lawyers limit their vision in the claim that "it is not the lawyer's role to work out the links between the client's difficulties and broader social problems and certainly not the lawyer's role to use a client's case as the occasion for dealing with these problems." [Stuart A. Scheingold, The Politics of Rights: Lawyers, Public Policy, and Political Change 164-65 (New Haven: Yale University Press, 1974)]

The skills we use to solve individual legal problems focus our social outlook and moral philosophy as well as our conception of our professional role. Scheingold argues that "a distinctive approach to problem solving is imparted in law school, and . . . this approach influences the way lawyers think about societal issues more generally." [Id. at 152]. The tendency to think of law as a discrete mechanism for resolving disputes, a mechanism that is discernibly different from morals and politics, has its deepest roots in the legal profession's views of its own functions, and forms the very basis of most of our judicial institutions and procedures.

Contrast the traditional apolitical view of lawyering to that of Gabel and Harris:

In conducting a trial the lawyer must resist the pressure to identify her being with the role that is allocated to her. This does not preclude acting like a lawyer in the making of motions or in the conduct of cross-examination; it means maintaining and living out an emotional distance between her true self and her "performance," so that she always expresses herself as merely "acting out" a lawyer and not being one. She must always maintain and express, in other words, a moral autonomy from the official character of the proceeding, and, in so doing, affirm herself as a source of authentic power and resistance. As a public actor whom the government officials must recognize as one of themselves, as a participant in the proceeding rather than merely as an observer, she can provide an important experiential example to the disempowered people in the room--her client, the jurors, and all those who gather behind the barrier that symbolically separates the public from the official legal arena. By maintaining this internal sense of moral autonomy, the lawyer will be ready to seize any opportunity for authentic action which presents itself in the course of the trial." [Gabel & Harris, at 401-402]

They refer to this stance as one of "simultaneous detachment and involvement." [Id. at 402]. The goal is to "recoup" our being "from the role into which" it has "fallen." [Id. at 407]. "The greater the extent to which conditioned images of the courtroom are undermined by honest spontaneity and moral authenticity in speech and action" the more political is our work. [Id. at 405].

The problem is not that we engage our students in legal discourse, but that our faith in law is overdetermined, overextended, and finally transformed into its negative and dysfunctional counterpart--legalism. The transition from the ideal of law to legalism as a belief system is analogous to a similar transition in science when faith in technology and science becomes scientism. Huston Smith, in his discussion of the transformation of science into scientism, observes:

hereas science is positive, contenting itself with reporting what it discovers, scientism is negative. It goes beyond the actual findings of science to deny that other approaches to knowledge are valid and other truths true. In doing so, it deserts science in favor of metaphysics--bad metaphysics, as it happens, for as the contention that there are no truths save those of science is not itself a scientific truth, in affirming it scientism contradicts itself.... Nothing in what science has discovered controverts the existence of realms other than the one with which it deals. Meanwhile, outgrowing understanding of the scientific method shows us that there are things science bypasses.

[Houston Smith, Forgotten Truth: The Primordial Tradition 16-17 (New York: Harper & Row, 1976). See also, Manfred Stanley, The Technological Conscience: Survival and Dignity in an Age of Expertise (New York: The Free Press, 1978) and Gunther Stent's essay, "The Decadence of Scientism," in Gunther Stent, Paradoxes as Progress 207-227 (San Francisco: W.H. Freeman and Company, 1978)]

The effort to avoid moral concerns by using the language of law and the word ethics instead of morals is another example of an overdetermined linguistic transformation.

The theory that one holds as a law teacher about the role of the lawyer in society (and even the role of the lawyer in the attorney-client relationship) is not, as so often assumed, apolitical. Social visions are realized through law. The shape and size of a city, the quality of life of its citizens, the kinds of jobs we work at and the conditions of life under which we work, are all affected by the decisions of clients, of lawyers, and of lawyers engaged in moral discourse with clients. Lawyers are implicated in the shape and flow of American life, whether it be the prayer of school children in public school, or an exception to a zoning ordinance that permits a non-conforming use of property. Lawyers help individuals preserve capital and put it to use. Lawyers are present and participate in the many diverse (and perverse) uses to which capital and labor are put in a capitalist society.

Theories of lawyering are neutral neither in moral and ethical terms nor in political terms. Lawyering and our theories about lawyers are not value-free. The values expressed in our theories (stories, metaphors, and images) affect the kind of teaching we do, especially the kind of teaching we do about the moral role of lawyers in society. The politics of lawyering is also related to the politics of clients. If the decisions that clients make did not affect others, did not alter the neighborhoods and communities in which we live, then the moral politics of lawyering would be a trivial matter.

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