Professional
Responsibility
Giving Reasons
Part II
Todd Andrews, the lawyer protagonist in John Barth's The Floating Opera (New York: Bantam, 1972), says: "I am not a philosopher, except after the fact; but I am a mean rationalizer, and once the world has forced me into a position, I can philosophize (or rationalize) like two Kants, like seven Philadelphia lawyers. Beginning with my new conclusions, I can work out first-rate premises." [167]
<1> Did Wishman work out any "first-rate premises" for his humiliation of Mrs. Lewis? What makes a reason for an action persuasive justification of its rightness? How can we know whether Wishman has rationalized inappropriate and unethical behavior or given adequate moral justification for his treatment of Mrs. Lewis? What kind of moral principle, if any, would justify Wishman's humiliation of an honest witness during cross-examination?
<2> What does Wishman have to say about whether his reasons are persuasive? At one point Wishman talks about the way he has been "flippant" in responding to being asked "Don't you take responsibility for what a criminal you get off may do next?" And he recognizes that it would be possible to dismiss what happened with Ms. Lewis with "lofty jurisprudential arguments"? [17] Do you get the idea that Wishman is commenting, in these phrases, on the quality of the reasons he has given for what he did?
<3> What possible reasons can a lawyer givee to justify doing what Wishman did? Consider the following:
It is the duty of the prosecutor, not defense counsel, to protect a truthful Mrs. Lewis from humiliation. [173]
When does an explanation for the harm of another serve as a good reason for the harm? For example, in an extra-martial affair, it is unlikely that a plea of "I didn't initiate the relationship" would be a good reason for the betrayal. If you get low grades in law school, a potential employer is unlikely to be impressed with the statement: "I didn't know it was going to be as hard as it turned out to be." Or, "I had better things to do." Some reasons we use to defend our actions are simply inadequate. Indeed, we call reasons that don't stand up to careful scrutiny excuses.
Note: "A satisfactory account of good reasons in any one domain of life would necessarily require a sizable book. The repertoire of good reasons could never be constructed by any one person, since it would include all good discourse about the grounds of valid discourse in any subject. . . . " [Wayne Booth, Modern Dogma and the Rhetoric of Assent 144-145 (Chicago: University of Chicago Press, 1974)]. When asked: "Don't you take responsibility for what a criminal you get off may do next?" Wishman replies: "Very little. About as much as a doctor who repairs the broken trigger finger of a killer." It is this response he identifies as "flippant." [17]
<4> What does Wishman's effort to explain his humiliation of Mrs. Lewis tell us about how ethics works?
<5> A concluding reflection:
Yes, this thing with Ms. Lewis happened, but I have reasons to explain it. The reasons are numerous. No one ever really confronted me before with what I was doing. I was just doing the kind of thing a lawyer must do. But the confrontation with Ms. Lewis was disconcerting. Could it be that she sees me in a way I cannot see myself? Maybe I didn't deal with Ms. Lewis in an appropriate way. Perhaps what I did was wrong. If what I did was wrong, perhaps the reasons I've given for doing it are suspect. The more I talk through this with myself, the more I see what happened with Ms. Lewis as a symptom of a larger problem. I've managed to get on with my life without thinking about the kinds of questions that this business with Ms. Lewis raises. I was so busy being a lawyer and getting on with my career that I managed to avoid dealing with some of the questions that being a lawyer raises. Now, I'm in a position to consider the possibility I was mistaken in putting such concerns aside all these years. In the book, I'm trying to deal with questions that I've put aside over the years.
