Professional Responsibility

Stanley Fish & the Teaching of Virtue

Puzzling over the futility so many students express when invited to explore the moral dimension of lawyering, I discovered a Stanley Fish essay in which he outlines a taxonomy for various "contexts of communication" that provides a useful framework for examining the assumptions underlying the proposition that ethics cannot be taught. [Stanley Fish, Doing What Comes Naturally 38-39 (Durham, North Carolina: Duke University Press, 1989)]. What context(s) are we in when we assume that ethics can't be taught?

If Fish's taxonomy is, as he claims, "commonsensical and powerful," it may help us interpret claims (by law students and law teachers) that ethics talk is futile or foolish. If ethics talk is fools work, we need to know what kind of fools we are. The only way to assess this presumed foolishness is to examine the rhetorical context in which ethics talk takes place. How do judgments about the value of ethics talk (and students' judgment about those who would engage them in this talk) work? How are these judgments to be interpreted? If we cannot practice the art of interpretation on these statements about the nature (and value) of ethic talk, how are we to teach and learn the subtle art of any interpretation?

In Fish's taxonomy, the "optimal context" for interpretation is "face-to-face exchange of utterances." [All quotes attributed to Fish are at pp. 38-39]. In a law school classroom conversation about lawyer ethics, we engage each other face-to-face. But the physical presence of two speakers (student and teacher) (student and student) is not enough. Fish explains that an optimal interpretative context requires that people who make utterances "know each other" and "are able, in the event of confusion or discontinuity or obscurity, to put questions to one another."

What we know about each other is entangled with assumptions. Some assumptions are of a long-standing nature, others are formed in situ. Assumptions may turn out to be erroneous. (An assumption, following the dichotomy that Socrates made between knowledge and belief, is a belief. Socrates envisioned the possibility of both true and false beliefs, in contrast to knowledge which cannot, by its nature, be false.) An assumption, when it turns out to be mistaken and erroneous, should be discarded. An assumption, when untested, is an invitation to knowing, a provisional form of knowledge. It is in the making, to be used carefully, to be discarded if its promise does not bear the weight we put on it. When we talk ethics with each other, we are asked to take note of our assumptions and consider the knowledge of which they are based. Some assumptions burden rather than liberate us.

If I (a talker of ethics) do not know my students and they do not know me, we are left with assumptions and beliefs about each other; provisional knowledge to be used with extreme caution. It is our assumptions that confuse us about ethics. They induce annoyance, confusion, and anger. Indeed, they are fertile grounds for misunderstanding and induced mistakes about what we mean, what we know, and what we can do together to enhance our shared moral concerns.

The law school classroom is not an "optimal" context for meaningful ethics talk. Knowing this, we can listen for, search out, and articulate the ill-founded, pernicious assumptions that plague our inquiry. In ethics talk, we must learn to confront assumptions about each other's intention and meaning, about each other's beliefs. The purposes of confrontation is to see how these assumptions work and how they fail. It allows us to see how some assumptions are better then others.

Drawing on a deep reservoir of assumptions, we make judgments about ethics and the place for ethics in a professional life. These judgments are sometimes crude and uninformed, sometimes astute and insightful; we are always making judgments. Judgments, whether about what we are learning, or the kind of lawyers we will be, often have an ethical cast. For example, we make assumptions about what law is, how it works, and who it protects. If we (teachers, students, lawyers, friends) are drawing on assumptions and making judgments for better and worse, about the meaning of ethics, then ethics (and those who teach and talk ethics) demands that we distinguish between judgments based on their quality, goodness and wisdom. Ethics is an inquiry into the judgments we make, those made about us, and those we make on behalf of others, those we make about ourselves.

An optimal context for understanding ethics talk, following Fish, requires that we use questions to clear up confusion and obscurity. Ethics talk among lawyers unsettles conventional ways of thinking and proceeding; the result is confusion and disagreement. When we formulate ethical questions that locate and circumscribe what we know, what we don't know, matters that must remain in the realm of mystery, we take risk and set upon a journey whose destination is unnamed.

Ethics talk gets confused because our utterances about ethics are at once simple and complex. If you make ethics simple enough, you utter "truisms" of little valve. Truisms represent truth, but never enough truth to matter in a telling way. A truism is simplistic because it pretends to say everything by revealing nothing of the speaker. In being simple about ethics--"You must try to be an ethical lawyer"--I say too little by attempting to say everything at once. When we engage in simple ethics talk (and we do, we all do), we are speaking the obvious, known conventions that are personally and subjectively vacant. A truism cannot move us to think about our situation as lawyers any differently than we did before it was spoken. Truisms are ungrounded, de-linked from the lives of those who speak them. They are a form of culture-speak. There is a Catch-22 of ethics talk: when it gets simple we realize the need for complexity. Yet, when we reach for the full complexity of ethical life, we begin to sound unrealistic, religious, or utopian. We begin to sound moralistic. Move in the direction of ethical complexity, and you will have all the misunderstanding you can possibly interpret!

Absent an optional context for ethical conversation--we do not know each other, and we do not know what experience and concerns we share--we may still, as Fish puts it, find "a context that stabilizes the direction and shape" of our moral understandings. Fish gives as an example, a meeting of students and teacher on the first day of class. Students and teachers know (or think they know) what will not happen. They "know" the teacher will not test and grade and judge students on the subject of the course on this occasion of their first meeting. This understanding of the first day of class is a common, mutually shared, assumption, one so often confirmed its breach would violate our understanding of how a class is to work and how a teacher is to teach. The assumption gives rise to what is loosely called a right. ("I have a right to know what I am being asked to learn before I am tested and evaluated on it.") But common understandings are routinely breached. Teachers do evaluate and grade students based on abilities they bring with them as well as those first introduced in the course. Imagine a teacher, if you can, who can evaluate a student's performance without taking account of matters learned from other teachers and from outside the present course. While the stabilizing influence of operative constraints on what teachers and students will say and do the first day of class are real, they must always be traced to operative assumptions and viewed, ultimately, as a false necessity.

With the help of Fish's taxonomy of interpretative contexts, we have made a cursory foray into classroom ethics talk and its "serious difficulties" of interpretation and distortions of meaning. In the absence of "stabilizing" constraints, we find ourselves in a muddle. What we say to each other about ethics must be interpreted from the "destabilized context" of the muddle in which we are cast (first by fate, then by choice). Destabilized ethics talk takes place where the constraints on interpretation are (i) partially known; (ii) known but ill-defined; (iii) known and defined but unopposed; (iv) multiple in number, singularly marginal in operative significance, but negatively synergistic as a whole; (v) few in number, but sufficiently threatening, they are left implicit and unexamined.

Fish argues that these operative constraints on understanding lead to a proportional increase in the likelihood of interpretative misjudgments when we speak to a "heterogeneous audience" hoping that "the right-minded listener . . . is tuning in . . . ." The law school audience for ethics is most certainly a heterogeneous one, and we assume law teachers of ethics care that someone is "tuning in." While law teachers want their students to understand what they are saying and take it to heart, law teachers of ethics may indeed be like "television commentators, direct-mail advertisers, and newspaper columnists" that Fish describes, "always in danger of being misunderstood because of miscalculation, special vocabularies, and unanticipated responses." Teachers of ethics, like bulk-mail advertisers, send out flyers to the masses and get just enough orders to keep their ethical teaching afloat. Whatever an ethics teacher may say is indeed subject to "being misunderstood because of miscalculation, special vocabularies, and unanticipated responses." It is easy for students to miscalculate intentions and purposes, in the invitation they are offered to work out (and work on) their ethical sensibilities in a public forum.

Fish's optimality scale for shared interpretative meanings, goes from "bad to worse" and "difficulties and miscalculations mount." Fish places literature, especially fiction, at the "outermost reaches" of our "sure and transparent verbal encounters." Our understanding of lawyer ethics and the process that unfolds when we talk ethics in law school may belong in this realm at the "outermost" reach where "difficulties and miscalculations" abound. In ethics talk, as in literature, "interpretive hazards seem to be everywhere and without a check as we attempt to fix the meanings and intentions." In ethics, as in literature, we struggle with meaning and intention. With ethics we seek the world that Fish ascribes to literature, a "world that never was except in the interior reaches" of our imagination.

Ethics is real, but not as real, immediate, necessary, and essential, as the "action" of everyday life. Ethics, like fiction, is remote from what we assume to be the Real World. Ethics talk, like fiction, creates a context or space for speech, judgment, and action that exist in imagination and reality. In ethics talk, we attempt to link imagination to reality.