Apparently substantial, oddly hollow: the enigmatic 'Practice of Justice'.

• Author: Feldman, Heidi Li
• Position: 1999 Survey of Books Related to the Law

THE PRACTICE OF JUSTICE: A THEORY OF LAWYERS' ETHICS. By William H. Simon. Cambridge: Harvard University Press. 1998. Pp. 253. $35.

INTRODUCTION

The Practice of Justice: A Theory of Lawyers' Ethics, by William H. Simon,(1) is one of the most thoughtful and important books in legal theory -- not just legal ethics -- published in the past ten years. Like David Luban's seminal contribution to legal ethics, Lawyers and Justice: An Ethical Study,(2) published a decade ago, Simon's book is a deliberate rival to accounts of lawyers' professional responsibility that begin with a command to zealous advocacy, end with a prohibition on outright illegal conduct, and offer nothing in between. Authors and commentators have grown increasingly dissatisfied with this as the basic structure of legal ethics,(3) but to date, no alternative model has gained widespread endorsement. Other than Anthony Kronman's The Lost Lawyer and Luban's Lawyers and Justice, I know of no other full-scale attempt to develop a profession-wide alternative to the all-zeal/ no-unlawfulness model. We need as many serious attempts as possible if those of us interested in legal ethics are to fashion an enduring, plausible theory of how lawyers should act and who they should be. Each worthy effort teaches us what we should or should not include in such a theory, even if we do not wholly adopt the author's proposal. Lawyers and Justice taught that we should be suspicious of a legal ethics founded on role morality. The Lost Lawyer focused attention on the centrality of high quality practical reasoning in good lawyering. William H. Simon's The Practice of Justice reminds us to mine the rich resources of jurisprudence when building a solid theory of legal ethics, and to watch out if we ignore the jurisprudential foundations upon which our theory rests.

Simon skillfully and persuasively criticizes what he calls the "Dominant View" of legal ethics, by revealing the inadequacies of its jurisprudence.(4) According to the Dominant View, which is a variety of the all-zeal/no-unlawfulness model, "the lawyer must -- or at least may -- pursue any goal of the client through any arguably legal course of action and assert any nonfrivolous legal claim" (p. 7). Simon demonstrates the Dominant View's dependence upon formalist commitments to libertarianism and legal positivism. Then, he undermines these commitments, clearing the way for Simon's preferred theory of legal ethics, the Contextual View, which holds that "the lawyer should take such actions as, considering the relevant circumstances of the particular case, seem likely to promote justice" (p. 9). Unfortunately, the Contextual View suffers from some serious problems, difficulties that become particularly apparent when we imagine putting the Contextual View into practice. An oddity of The Practice of Justice is that the flaws in Simon's positive account of legal ethics seem to be ones he should have easily spotted. As I will argue below, Simon overlooks a normative vacuum in his theory. Since his critique of the Dominant View reveals its inadequacy if we do not accept its normative engine, libertarianism, one might have expected Simon to make sure his own account possessed a plausible, workable source of normativity. Simon presents the Contextual View as if justice will fill this role. But as Simon construes justice, it cannot play the part.

The shortcomings in Simon's approach to justice relate to a more general flaw in Simon's approach to ethics. Simon seems insensitive to the idea that ethical requirements should be instructive, compelling, and authoritative. Immanuel Kant's ethics highlight this sort of categoricity, which insists that ethical requirements are nonoptional and do not vary according to personal interpretation.(5) Simon objects strenuously to a different sort of categoricity -- a tendency to conceive ethical demands unduly broadly, without nuance (p. 9). But in his zeal to condemn this sort of categoricity, he overlooks Kantian categoricity entirely. Simon's conception of justice strips that value of much of its normative power. Simon's blindness to Kantian categoricity makes it seem that he envisions a lawyers' ethics without normative authority of any kind.

THE FAILINGS OF THE DOMINANT VIEW

Perceptively and adroitly, Simon demonstrates that in its blend of libertarianism and legal positivism, the Dominant View is a throwback to an earlier school of legal thought, sometimes called formalism and, sometimes, Classical Legal Thought.(6) Epitomized in Lochner v. New York,(7) classical formalism imported the libertarian conception of freedom as protection from unwarranted encroachments by the state or by other individuals. According to libertarianism, the state or other people are only justified in interfering with an individual's pursuit of her own ends if she consents to the interference, or if in her pursuit she interferes with others' like pursuit without their consent. In addition to its libertarianism, classical formalism included a form of legal positivism, conceiving of law as both conceptually and substantively independent of other social, political, and intellectual realms. Formalist judges wrote as if the content and application of precedent cases were transparent and self-evident. These jurists did not overtly consult or invoke moral, political, economic, and historical facts or theories to justify their interpretations of the law. For classical formalists, interpretation, like the law itself, was obvious.

Although American classical formalism did not include an account of legal ethics, Simon is dead right when he claims that the Dominant View of legal ethics is the account that follows from classical formalism (p. 28). The Dominant View instructs the lawyer that she may or must pursue the client's interests via any arguably legal course of action. The law by itself sets the only limit on what the lawyer may do. David Wilkins, another current and important legal ethicist, presents this as "the boundary claim."(8) Like Simon, Wilkins observes that this image of the law as boundary-setting relies on a sense of the law as an external force, exerting influence on the lawyer independent of her own or anybody else's moral, political, economic, or historical views.(9) This is the formalist vision of law's separateness. Under the Dominant View, the lawyer barricades the client's rightful sphere of autonomy by pressing the client's lawful claims. Since the law itself is not moral, political, or economic, the lawyer is not aiding the client in any illegitimate imposition on anybody else's freedom; but anything short of pressing to the boundaries of the law would mean that the lawyer is illegitimately imposing her own views on the client. The lawyer facilitates the client's freedom as per the libertarianism of classical formalism.

Simon rejects both the libertarianism and the legal positivism of classical formalism. He faults libertarianism for its cramped conception of freedom and its elevation of this form of freedom over all other moral goods (p. 36). Simon rejects legal positivism because it cannot sustain the strong law/nonlaw distinction it draws (p. 37). Simon's attack draws heavily on jurisprudential ideas advanced by Ronald Dworkin and by Critical Legal Studies scholars, debts Simon acknowledges heartily (p. 247). The key premise of his argument is that it is impossible to interpret the law, and therefore to identify it, without incorporating moral, political, and economic values into one's assessment. These values, however, do not stem from a sovereign's enactment, one feature positivism relies upon to distinguish law from nonlaw (pp. 38-39). Simon advances other arguments against legal positivism, but this is the main one, and it is convincing.(10)

THE NORMATIVITY AND PRACTICAL GUIDANCE OF ROBUST ETHICAL THEORY

As the subtitle of The Practice of Justice tells us, Simon offers a theory of lawyers' ethics. Simon insightfully draws our attention to the fact that such a theory can rely upon jurisprudence -- philosophy of law -- as well as moral and political philosophy. He does this by showing how the Dominant View generates its normative ethics -- its basic tenet of how a lawyer ought, morally, to behave -- from its jurisprudence (libertarianism plus legal positivism). And his own strategy for generating an alternative normative ethics for lawyers depends primarily on substituting a different jurisprudence for the one implicit in the Dominant View. The key difficulty here, however, is that a jurisprudence without a robust moral philosophy cannot effectively guide ethical conduct. A robust moral philosophy is not necessarily a correct moral theory, but it has at least two features: (at least minimally) plausible accounts of (i) the source of moral normativity and (ii) what counts as an appropriate response to this normative source.

The Dominant View relies on libertarianism as its robust moral philosophy, a point Simon himself makes. In libertarianism, the source of moral normativity is the individual. Responding to the normativity of the individual calls for leaving...