Professional Responsibility

Doing Philosophy

a prologue

I am looking for a way to do philosophy, to do philosophy in a place that is so often antagonistic to it. I am looking to do philosophy in a place where it seems most unlikely to be done, with students who have set out to be lawyers and so eagerly take on a legal worldview here talk of philosophy seems out of place to them. This is a world in that philosophy is held in disdain.

And yes, there are students, even those who have set out to be lawyers, fully prepared to do philosophy and make it part of their working professional life. I don't know how they come to such unusual receptivity. Yet, there they are, always to be found.

I confess, I am not and have never been a student of philosophy, not the philosophy taught in philosophy departments, the philosophy of academic texts. My concern is not with the academic study of philosophy but trying to imagine philosophy in the study and practice of law, philosophy as part of our working lives. It is not, then, academic philosophy that calls me forth, but the philosophy we are already doing, enacting, actively rejecting, philosophy that already occupies a place at the center of our daily concerns and activities.

I have been governed, perhaps foolishly, by the notion that I can travel in what Robert Pirsig calls the "high country of the mind" and embrace what I find there in my teaching and writing, to work with students to find the philosophies we enact in our everyday professional lives.

There is no escape from philosophy. The question is whether a philosophy is conscious or not, whether it is good or bad, muddled or clear. Anyone who rejects philosophy is unconsciously practicing a philosophy.

Here we do not here study legal or moral philosophers and their philosophical schools but rather turn our focus to the ethics we find in conversation. We'll try to talk about:

ethics, and puzzle over the moral dimension of our lives as lawyers;

the metaphors, images, stories, and myths (as well as the clichés and conventions) that find their way into our conversations about lawyers and their work;

the sources of moral guidance in professional life (reflecting on the limited role of ethical rules, which ironically, constitutes the only course in legal ethics most law students ever take).

We explore the following questions:

Do we have the ethics we need as lawyers, and if we don't, how are we going to know, learn, find, or create an ethics of lawyering that honors the best of what we want a life in law to represent?

What obstacles (personal and social) impede our understanding of the moral dimension of lawyering?

How are we to understand the serious moral failures we see taking place in the legal profession? How and why does a traditional lawyer ethic that focuses on zealous advocacy become morally problematic?

The course begins and ends with a simple question: can a good lawyer be a good person? I think the answer is yes, but the path for getting to yes is filled with potholes and detours.

For some, it may seem odd and a bit late to be talking philosophy in law school. Law students have not, they will tell you, set out to be philosophers, indeed many have no understanding of and thus no great love for philosophy. Philosophy, of the sort we learn to do by way of Socrates, may at times be a bad tasting medicine, but we might find it a necessary curative.

Philosophy raises questions, and it is questions about the legal profession and our practices as lawyers that we need to explore. What kind of philosophy do we embrace and enact when we become lawyers? Or put somewhat differently, how does being a lawyer change your philosophy? What kind of ethic and ethics do we take on when we become lawyers? How does lawyer ethics work and how does our profession's thinking about lawyer ethics lead us astray? How are we to respond to the conflicts between the ethics taken on by lawyers and the ethics expected of us as persons and citizens? How are we, in legal education, to address the maladies induced by the conflicts we experience as a lawyer? (Or should they be left to infect us, each individual left to his or her own strategies to figure out a healing response?) What metaphors, images, stories, and myths about lawyering do we uncover as we study lawyer ethics?

There are two basic questions that philosophical discussion makes transparent: (i) Do we have the ethics we need as lawyers, and if we don't, how are we going to address the gap between the ideals we (and law) represent and the ethics of practicing lawyers? (ii) Can a good lawyer be a good person?

Philosophy calls for reflection and introspection. We need to reflect on the ethics of lawyers, the ethics that embody and distinguish our own character and the ethics we find embedded, and embodied in the speech of those who talk ethics.

How does the adversarial ethic and belief in zealous representation and the work that accompanies a lawyer's adversarial ethic shape (and deform) the character of those who make a life of such work? Can we use the adversarial ethic and zealous advocacy to advance the interests of clients, ignore other values and interests found in the community (found in ourselves) and then deny moral accountability for the fact that we represent clients who have no interest beyond their own greed?

In lawyer ethics, we study the conventions and practices of lawyers and subject them to moral scrutiny. We ask--is this practice good? What harm is incurred when this practice is used indiscriminately? We try to learn how questionable practices get defended. And we try to learn how to respond to the defenses of these questionable practices. Ideally, we might try to get beyond our defenses and self-serving rationalizations. A study of the ethics of lawyering practices must explore the moral concerns raised about these practices (even when they are widely adopted within the profession; and yes, practices permitted under our ethical rules.

We must surely be concerned that our ethics as lawyers are held in disdain by the public (and made the subject of ridicule in lawyer jokes and lawyer cartons). A practical and wise lawyer recognizes as foolish the lawyer who says, "I have no concern about the public perception of lawyer ethics." (An analogy might be a businessman who says, "I'm a businessman and don't have time or inclination to worry about the economy.")

Philosophy informs our study of the virtue and character of lawyers, and of those who push the adversarial ethic beyond the bounds of "ordinary morality." Philosophy helps us evaluate the claim that personal morals and lawyer ethics can be compartmentalized, an ethics for the work we do as lawyers and an ethics we embrace off the job.

The philosophy we explore here is the philosophy you bring with you, the philosophies you encounter when there is talk about lawyers and their ethics. By sticking to philosophy close to home, and to our own lives, we focus attention on the value, quality, and meaning of lawyer work.

There is nothing sacred in philosophy that requires head-bowed reverence. Some of us simply want to think well, live a respectable life, practice law, look after our families. We may indeed find it possible to do all the good of which we are capable, and be the person we want to be, and never resort to a study of philosophy. If it's possible to be a good lawyer and a good person by ignoring moral and philosophical questions, so be it. The more searching question--is it possible?

As powerful as legal thinking and the lawyer ethic may be, allowed to dominate our thinking and our lives, we place ourselves at some peril. When does a single, strong, dominant ethic (with all its virtues), practiced to the exclusion of all else, become overdetermined, and a vice. An ethic that has the power to push aside all its competitors is as dangerous as it is powerful. We soften and contextualize the rigid demands and felt necessities of an ethic by seeing it through the prism of the metaphors and images that accompany it. The lawyer ethic is not a single script, a rigidly prescribed role, or a unitary world view. As my friend Charma from the small island of Sumba (which lies east of Bali, Indonesia), a place where the old animist beliefs are still practiced, tells me, "there are many ways to the heaven." An extended study of lawyer ethics allows us to seek out the images and metaphors with which we describe ourselves and our work, scrutinize the empty and vacuous, and consider vital replacements.

We need, in legal education, a course of study, reading, and reflection that insures that our legalistic perspective does not diminish our study of ethics. A course in lawyer ethics should honor ethics; we honor ethics by engaging in philosophical reflection. Since most legal ethics courses honor law rather than ethics, we need courses of study and reading that confront legalism with a perspective equally powerful--ethics and philosophy constitute just such a perspective. To honor ethics, we need not praise ethics and philosophy, or become philosophy students. We honor ethics and philosophy by our conversation, questions, reflections, and arguments.

Every subject, ethics and philosophy, as well as law, are honored by being questioned: What is this subject? How does it work? How does it allow me to talk? What kind of claims can be made in the name of this subject? What demands does it make upon the student?

Many law students have convinced themselves (without fully considering their conviction) that they can live without philosophy and that the legal profession is just the place to do it. We certainly don't make any effort to screen out those who are disdainful of philosophy and bar their admission to law schools, indeed, they are made welcome in legal education. We make welcome those who are suspicious about philosophy because we are reasonably assured that the study of law contains within its borders a great deal of philosophy, that no student can become a lawyer without seeing the play of jurisprudence just off center stage (even as it sometimes upstages the parties and their efforts to resolve a dispute). Law is so thoroughly entwined with philosophy, history, sociology (and other disciplines) that we expect the student to see and understand that everything they have learned and know can be brought to bear on one's efforts as a lawyer. Students learn along the way that lawyers bring much to their work that is simply not taught in law school. (And yes, it's true that we send exactly the opposite message in the first years of a student's legal education.) So, even the most practical-minded and philosophy suspicious student is expected to learn a fair amount of philosophy and to think (even if in a crude way) like a philosopher in order to be an effective lawyer. Philosophy need not travel under the banner of philosophy to be philosophy.

The best way to make philosophy attractive to those who are philosophically agnostic is rather simple--make them part of the conversation. We do so, for several reasons: i) they are colleagues and we work with them as fellow members of the legal profession; ii) they may have interesting things to say and turn out to be interesting people; iii) the suspicions and doubts about philosophy may provide a valuable source of information on how lawyer ethics works and the obstacles we face in being good lawyers and good persons; iv) those who are suspicious of philosophy may be rightfully disdainful of the academic, scholastic, analytical philosophy which has been handed down to us in the universities; v) the anti-philosophy stance does not mean that individuals are not curious about their own philosophies and how they work; vi) suspicions about philosophy may (even though it often does not) signal one's humility in learning and teaching virtue; vii) those who are suspicious about philosophy and proclaim to have a practical orientation may still have the highest regard for the legal profession and the standards by which lawyers conduct themselves; and viii) they may turn out to be better human beings than those of us who hold ourselves as to be friends of philosophy.

While I've focused attention on those who are suspicious about philosophy and whose practical orientation make them philosophy shy, we should also be mindful of the law students eager to take up philosophical questions and engage in serious reflective work on lawyer ethics. While we welcome those who are suspicious of philosophy (and their efforts to question the viability of moral discourse in legal education), we must also honor those who want to study law as a moral and ethical discipline.

One way we honor the philosophically inclined is to take their "big questions" seriously: How is it that the more we punish criminals, the more criminals we seem to have? What does it mean to say that the punishment should fit the crime? How can the law have any certainty about it when it is always undergoing change? How are we to read and interpret a contract in a way that honors the "real agreement" reached by the parties? Judges claim to be "objective," but in what sense is their claim overstated? How can we read a judicial opinion so as extract the "rule of law" embedded in the case? Is it not in just such questions that the student that is open to philosophy, who just happens to be sitting beside a fellow student who finds such questions intrusive and unnecessary, that we begin to imagine philosophy as a struggle, a contest between those who welcome such questions and those who view them as a waste of time.

When philosophy makes an appearance, however it may happen, by the invitation of a philosophically inclined teacher, or the intrusive efforts of a student who has questions about "justice," or "women's issues," or the narrow way that law is so often taught, decisions must be made about how to proceed. How will the philosophical questions be received? How will they be resisted? How do those who resist philosophy and those who deem it necessary for lawyers to have a philosophical sensibility find it possible to carry on a conversation? I know of no more spirited conversation in legal education than that which takes place between students of a professor in a first year law school course who is thought by some to be "too philosophical" and those who find the philosophical perspective a welcome relief.

Philosophy, welcome by some, scorned by others, offers an approach, perspective, method(s), and a host of questions. Will philosophy be acknowledged or ridiculed? It is certainly true that philosophy's appearance is often unwanted and unwelcome, and to some, threatening. In the struggle between those who would set a place for philosophy at the table and those who would not, we have the terrain on which lawyer work and lawyer ethics is understood and contested. In the arguments between those who welcome philosophy and those who would banish all talk remotely related to philosophy there is much to be learned.

Epilogue