The legal and the ethical in legal ethics: a brief rejoinder to comments on The Practice of Justice.

• Author: Simon, William H.
• Position: Response to symposium articles in this issue p. 873, 903, 919, 935, 955, nd 973. - Review Essay Symposium: The Practice of Justice by William H. Simon

We have here, not the clash of opposites, but a series of family quarrels within what you might call the Party of Aspiration in legal ethics. My seven allies and I all favor lawyers' ethic of more complex judgment and more responsibility to nonclients than the currently dominant one. The differences among us are not large from the broadest perspective, but they involve issues that are quite important to the elaboration of the sort of alternative ethic we would like to see.

I am enormously grateful for the care and attention the commentators have taken. They have frequently stated my own positions better than I have and their criticisms are invariably acute. I lack both time and ideas with which to respond to many of their points. I do, however, want to address a general issue on which the commentators converge to varying degrees: To what extent should we encourage lawyers to think of the most pressing ethical issues they encounter in terms of law and justice as opposed to terms of personal morality?

Of course, the two sets of terms are not mutually exclusive. The question is rather one of emphasis. I argue in The Practice of Justice(1) for an ethic of legal merit and justice. All the commentators at least speculate that I go too far in this direction at the expense of personal moral terms, and four of them are insistent on this point. Robin West, and especially David Luban, press this point in general terms, and I respond to them first. Thomas Shaffer and Anthony Alfieri press it by reference to specific alternatives--variants of communitarianism. I respond to them next. I conclude with a brief response to a different point pressed by Tanina Rostain concerning the effect of the social circumstances of practice in biasing lawyer decisions under a regime of Contextual judgment.(2)

1. LUBAN AND WEST

   Luban has two sorts of complaints. One, in which West joins him, is rhetorical. The other is jurisprudential.

   1. Rhetoric

      My differences with Luban and West are rhetorical to the extent we share an ethical program and are simply arguing about how it can be more persuasively expressed. We all favor an ethic of complex judgment with enhanced responsibility to nonclient interests. In part, Luban and West simply fear that my insistence on legal rhetoric will be ineffective in moving us toward such an ethic or will have side effects that none of us would want.

      I emphasize legal rhetoric because I want to take advantage of the tendency in the professional culture to associate law with relatively objective, rational, socially grounded judgment. At the same time, I want to escape the corresponding tendency to associate moral judgment with relativism and subjectivism. For lawyers and law students, law has weight and palpability. To deny this is nihilism. On the other hand, to deny that moral values have more than a subjective basis is the conventional wisdom. Thus, the lawyer who appeals to moral judgment against "the law" is accused of "playing God" or "imposing her own values."

      My friends and teachers in Critical Legal Studies devoted a good deal of effort to extending the Realist critique of the objectivity of the legal reasoning associated with judges and demonstrating the relative "indeterminacy" of judicial doctrine. We thought that the mainstream tendency to exaggerate objectivity and determinacy gave an undeserved legitimacy to the work of the centrist/conservative judiciary. We hoped that such critique would loosen things up for Progressive politics.

      I have always thought that this was an important and worthwhile project, but it was apparent to me from the beginning that the situation was quite different with lawyers' ethics. Here skepticism is the mainstream tendency. Here it is the assertion of indeterminacy and subjectivity that serves to legitimate a conservative status quo. Law is still treated as objective, but it is given a narrowed, more Positivistic portrayal then in the jurisprudence of the judicial role. And the values that one might appeal to against the conventional legal ethics responses are defined as nonlegal and moral with the derogatory connotations of insubstantiality. It seems to me a good rhetorical strategy to overcome this debilitating combination of Positivism and relativism to appeal to the more expansive and objective notion of law familiar from the jurisprudence of the judicial role.

      Kandis Scott once captured this aspect of the rhetorical strategy quite succinctly, saying to me at a conference, "After we discuss how the Code handles a problem, I usually ask the students how they feel about the result. What I hear you saying is that I should ask them, `Is it just?'" The idea was that students might feel more confidence in criticizing the conventional answer in the language of justice (and the associated language of legal merit) than in the language of, to use Luban's phrase, "passion."(3)

      A related rhetorical reason for emphasizing legal terms is to capitalize on the emotional resonance the idea of the legal role often has for law students. Many law students, especially in elite schools, are blase about the professional role. Others view professional credentials as meal tickets. But some are excited at the prospect of becoming lawyers. For some, the role promises dignity and social respect. Others are drawn by the idea that the role combines an established social position with idealistic exhortation and reformist opportunities. An ethic of legal merit associates itself with such attitudes and tries to draw on the energy they generate. It portrays itself as trying to work out and vindicate what excites such people about the professional role.

      By contrast, an ethic of nonlegal morality often seems to be fighting against the legal role. It frequently puts itself in the position of requesting shelter from its demands. No doubt there are many situations in which this is the most sensible ethical request to make. But the request is not responsive to the concerns of the students I am talking about. They are not looking for protection from the role; they are excited by it. What they want is some concrete indication of how the role might deliver on its idealistic promise.

      Still another rhetorical concern has to do with institutionalization. Deborah Rhode and others insist that a plausible professional ethic must be amenable to institutionalization.(4) She is right to point out that my efforts to specify how the Contextual View might be implemented are sketchy. But at least I suggest some directions. However, these directions all contemplate professional regulation--that is, regulation by nongovernmental lawyer organizations or by courts and government agencies drawing on the ideals implicit in informal lawyer practices in the manner of the common law duty of care. Legal rhetoric is simply what we would expect such actors to employ in such efforts. At a minimum, such rhetoric would express the belief that the project was a public one.

      Robin West points to a different kind of rhetorical stake. She argues that in some circumstances emphasizing the convergence of legality with norms of justice might have an effect opposite from the one I hope for. Instead of limiting state power by encouraging us to test the validity of the commands of state actors against a broader normative background, it might subordinate legality to state power by associating the status quo with justice. Even the broadest set of legal criteria will require some measure of formality and institutionalization for the norms that support legal judgments. In a repressive society, formalized, institutionalized norms will be repressive. In such circumstances, insisting on the connection between law and justice may simply give a patina of legitimacy to an otherwise corrupt regime. Positivism, West reminds us, at least has the virtue of insisting that we separate out the question of legality and legitimacy.(5)

      Mark Osiel's study of judicial rhetoric under military dictatorship in Argentina and Brazil gives numerous illustrations of West's point. For example, in 1962, the Argentine Supreme Court was pressured to allow the oath of presidential office to be administered to the military's candidate. There, one judge pointed to constitutional text to insist that the court was violating the law, but another replied in language that shows the potential affinity of Substantivism with autocracy: "He who saves the Republic cannot possibly be violating the law."(6) Yet Osiel also demonstrates that Substantivism can also be associated with resistance to state repression. As he tells us, it depends on the context.

      So the key question for my argument is: What kind of context is that of the contemporary American legal profession? The relevant features of this context seem to be those I mentioned above--a tendency for nominally moral reflection to be crippled by a strong impulse toward relativism, the emotional resonance for many lawyers of the reformist idealism associated with their professional role, and the greater affinity of public rhetoric with institutionalization. Although this is not a matter that permits certainty, these factors suggest promise for an ethic of legal merit.

      Another consideration...