Professional
Responsibility
Teaching Virtue Notes
Teachers of lawyer ethics confront, at the insistence of students (and even teacher colleagues), the claim that ethics cannot be taught. The assumption, seems to follow an old adage: "You can't teach an old dog new tricks." Law students, when they take up the study of lawyer ethics, assume they are old dogs. But there is little new is this time worn, if all too human assumption. From the time of Plato, this skepticism about the teaching of virtue, and the great difficulty when it is undertaken, has been a staple of moral philosophical debate.
In legal education circles, we talk far more about professional responsibility than we do about virtue, but then in legal education we have adopted some rather peculiar notions of how to deal with this notion of professional responsibility. Basically, we've come to the conclusion that law schools have some duty to do "something," but we haven't been all that imaginative (in most quarters) about what we'll end up teaching in the name of lawyer ethics. Indeed, that we call the course in which this teaching is to take place "legal ethics" tips our hand. We are far more interested in the rules that govern lawyer conduct than we are interested in ethics. We have, for all practical purposes, given over the teaching of professional responsibility to those who envision it as the law of lawyering.
The real problem is not in what we call the course in which lawyer ethics is to be taught but whether we can, or will talk about virtue. It seems fair to say that most students don't have faith that a course called professional responsibility or legal ethics is going to have much effect on their character or even on their moral sensibilities. "Why learn something I already know?" (The old dog shows up on the scene again.) "Why talk about something we can't do anything about?" (One sees here the prosaic and practicalist mind-set that is so common in law schools.) "Why talk about ethics when we know one's fundamental values and beliefs are not subject to ready change?" (Now, the student is raising a far more interesting question.) "Why talk about something over which there is so much disagreement?" (A rather odd question, it seems, from a student who is heading out to make a life in the great swirl of conflict.) In these questions and more, students of lawyer ethics begin with a discouraging array of skeptical notions about ethics and whether anything called ethics can be taught.
We hear this claim from students, "you can't teach ethics" and we need to take what they say seriously, even if we have decided that we must, in some way, do what cannot be done. We begin by listening more closely to what is being voiced about ethics and the skeptical concerns that are being advanced:
- "I have no desire to be a saint and consequently don't have much
time for ethics." Somewhere along the way, we hear, "lawyers
aren't saints, and no one expects them to be."
- "I know there are some who think we'd be a lot better off if
we focused more on ethics. I'm not sure they are right about that. Where
has all our talk and concern about ethics gotten us to date? In fact,
I'm a bit suspicious of anyone who spends too much time trying to think
about ethics. Wouldn't that time be just as well spent actually doing
something?"
- "I'm afraid that the more moralism we subject ourselves to --
call it ethics, call it whatever you will -- takes us in the wrong direction.
Those who talk about morals usually have in mind taking back some hard
won freedom we've gained. The more talk about ethics I hear, the less
tolerance I experience. The world may be awash in immoral folks and
all manner of garden variety terrorists who wage war against the innocent
and the rest of us, but will they cease their doings because we make
ourselves more moral. Doubtful. Every effort at moralism seems to me
a form of intellectual and cultural terrorism."
- "If we aren't careful, when we focus on morals, we end up destroying objectivity. It is, for me, reason that creates the great middle-ground where all, but the sociopath, can live together and respect each other's way of life. If we want to fairly, equitably and justly resolve the problems that do arise between neighbors and in the world of commerce, then we need more reason, less morality."
These statements, of course, were not made by any of my students, but they have uttered words which convey just such sentiments about ethics (and the teaching of ethics). When we ignore the rhetoric of our students and their arguments that ethics cannot be taught, we forego valuable ethical inquiry. It is, one might think, in just such rhetorical "tag lines" and other conventional references to moral, social, and political concerns in our everyday conversations, that we see the first clues of what Roger Schank calls "culturally common stories." [Roger Schank, Tell Me a Story: A New Look at Real and Artificial Memory 37-40 (New York: Charles Scribner's Sons, 1990)]
Can ethics
be taught? For a different perspective we might reframe the question and
ask: Do law students leave law school with the ethics they bring with
them? If our students don't leave in the same condition in which they
arrived, then it might be said, that we have, in our desire to teach them
the way of lawyers and the lawyer ethic, an accompanied moral perspective
(manifested as it is, in so many varied ways).
When we
take up lawyer ethics, we arrive in the classroom with an historical past,
a past thought to be formative for our ethics. Thus, the notion that we
already have whatever ethics we are going to have and that we can't expect
to teach ethics to adults. With ethics already in place, what can be taught?
I recall a student some years ago commenting on how the first year of law school was like arriving in the middle of a movie. That observation about legal education could be said of ethics as well. Ethics, unlike mathematics, typing, and property law, does not seem to have a discrete beginning. In mathematics you must learn to count, to add and subtract, before you multiply and divide. Algebra comes before calculus. In learning how to type (or to do something more complex like learning another language), we proceed by learning first things first. But in ethics we seem never to start at the beginning.
How does
the contention that ethics cannot be taught square with the fear of other
students that the real danger of ethical teaching is indoctrination? Indoctrination
suggests that ethics can indeed be taught.
If ethics
cannot be taught, can we not at least teach ourselves how the ethics we
have already got works? But, as Stanley Fish points out in Doing What
Comes Naturally 38-39 (Durham: Duke University Press, 1989), there
are problems even in this simple task:
One would begin, of course, with the optimal context, a face-to-face exchange of utterances between two people who know each other and who are able, in the event of confusion or discontinuity or obscurity, to put questions to one another. A less certain but relatively risk-free form of communication would occur between persons who know each other, but who are separated either by time or space and are therefore reduced to the medium of letter or telegram or telephone; such persons would be hearing or reading one another against the background of a history of shared experiences and common concerns, and that background would operate in the absence of physical proximity as a constraint on interpretation.
Constraints of another kind are operative when communication is between persons who don't know each other but who speak from within a context that stabilizes the direction and shape of their understandings: clerks and customers in a department store, teachers and students on the first day of class, waiters and patrons in a restaurant, and so on. Serious difficulties begin to set in when that kind of stabilizing context is absent. A coincidence of concerns is serendipitous rather than probable because one party is speaking or writing to a heterogeneous audience and hoping that the right-minded listener or reader is tuning in; television commentators, direct-mail advertisers, and newspaper columnists are in this situation and are always in danger of being misunderstood because of miscalculation, special vocabularies, and unanticipated responses. As we continue down the scale, things go from bad to worse as the incommensurabilities of other times and other cultures are added to the difficulties occasioned by physical distance. Finally, at the outermost reaches of this declination from sure and transparent verbal encounters we arrive at literature, and especially at fiction; here interpretive hazards seem to be everywhere and without a check as we attempt to fix the meanings and intentions of long-dead authors whose words have reference not to a world that has passed from the earth but to a world that never was except in the interior reaches of their imaginations. In other cases, the interpretive efforts of readers and listeners are tied, even if in some attenuated way, to specifiable empirical conditions, but in the case of fiction and drama those conditions are a construct of the author and in turn must be reconstructed, without the aid of extramental entities, by readers and listeners.
What do we know about each other in a law school classroom? How can I, your teacher, know you, the student? Do you, the students know me, your teacher? What do we know about each other? Following Fish, we might argue ethics that can't be taught simply because we do not know each other.
Notes
I do not use moral skepticism as moral philosophers use it, but rather as the kind of lay skepticism we have about the value of a particular endeavor.
Like, moral skepticism, virtue as a term of art in moral philosophy is not fully explored here. On Virtue Theory, see the entry in the Internet Encyclopedia of Philosophy.
Swimming Upstream
John Ayer: On
Teaching Virtue
a lawyer professor argues that ethics can be learned; teaching ethics,
however, raises problems
Miscellaneous
Mistakes
in Teaching Ethics
essay by Professor James Toner, a military ethics teacher
Teaching
the Virtues
Christina Hoff Sommers, Associate Professor of Philosophy, Clark University.
