Reason and passion in legal ethics.

• Author: Luban, David
• Position: Review Essay Symposium: The Practice of Justice by William H. Simon - Review

Should a morally ambitious person become a lawyer? Surely the answer should be yes: Each year thousands of students enter law school, and a large portion of them are there because they want to pursue justice in a way that draws on their highest intellectual and moral powers. And yet, as William Simon observes on the first page of The Practice of Justice, "[t]hey tend to come out with such hopes diminished, and the hopes often disappear under the pressures of practice."(1) The phenomenon is not new; there have always been those who find the practice of law disappointing. Oliver Wendell Holmes, who wondered aloud "why the subject was worthy of the interest of an intelligent man,"(2) described law practice as "the greedy watch for clients and practice of shopkeepers' arts, the mannerless conflicts over often sordid interests."(3) That was a century ago. A great many modern lawyers would agree. The problem is not just that today's fiercely competitive market makes it difficult for lawyers to turn away legitimate business, no matter how sordid they may find it. It is also that legal ethics, as most lawyers understand it, categorically requires zeal on behalf of all client interests, sordid or not. The rule of zeal, like other categorical rules of legal ethics, precludes lawyers from responding to moral judgments such as Holmes'.

According to Simon, conventional conceptions of legal ethics misunderstand the nature of law. They fail to appreciate the resources that law contains, and they overlook the crucial role that lawyers' discretionary judgments play in mobilizing those resources and bringing them to life. Simon's aim in The Practice of Justice is nothing less than a proof that morally ambitious lawyering is possible, and indeed ethically required. Simon's "argument assumes that the tasks of ordinary practice are often practically and ethically complex. In doing so [Simon is] faithful ... to the longstanding premise of the bar--that ordinary lawyering can be intellectually and morally engaging...."(4) With that assumption in mind, he offers a rigorous and far-reaching argument that legal ethics requires lawyers to make contextual, discretionary ethical judgments, rather than taking refuge behind categorical rules of zeal, confidentiality, and moral neutrality toward the client's ends.

But Simon's targets include more than the conventional combination of zealous advocacy and moral neutrality. They also include critiques of this view which argue that lawyers should never be morally neutral toward the ends they advance or the means they employ. Simon agrees that lawyers cannot abdicate responsibility for the values they further, but he disagrees that the source of those values is morality rather than law itself.

Simon's is a law-centered theory. The values he wants lawyers to further are legal values; the justice he means them to pursue is legal justice. "Lawyers," he writes, "should take those actions that, considering the relevant circumstances of the particular case, seem likely to promote justice."(5) He elaborates as follows:

"Justice" here connotes the basic values of the legal system.... Decisions about justice are not ... applications of ordinary morality. They are legal judgments grounded in the methods and sources of authority of the professional culture. I use "justice" interchangeably with "legal merit."(6) This passage implicitly contrasts Simon's law-centered theory with alternatives that view legal ethics as "applications of ordinary morality"-what might be called morality-centered theories.

One such theory is my own, which I elaborated in my 1988 book Lawyers and Justice.(7) Simon has generous things to say about my book,(8) and our conclusions and arguments on many subjects are the same; some readers might regard us (as I do) as kindred spirits because of our shared criticisms of adversarial ethics and our advocacy of what Simon calls "ethically ambitious or high-commitment lawyering."(9) Simon seems to agree, and remarks that he has "tended in public--and indeed in this book--to focus on the relatively few matters on which we disagree."(10) One of those matters is the foundational question of whether a law-centered or a morality-centered theory is the best way to approach the subject of legal ethics. That is the issue I mean to explore in this essay.(11)

I begin, in Part I, by placing Simon's book within the body of philosophical writing on legal ethics emerging over the past two decades, including his own early work. The aim is to understand why the choice between law-centered and morality-centered theories matters, by exploring the arguments that Simon is reacting against.

In Part II, I examine one of Simon's central assertions, that every conflict lawyers face between law and morality can be translated into a conflict among legal norms. He believes this because he adopts a strongly moralized, anti-positivistic conception of legal interpretation, similar in important ways to Ronald Dworkin's but even less fettered by positive law. This view of law and interpretation, I argue, lands Simon in a dilemma. Either he is compelled to argue that law can never be morally pernicious, or else he must admit that some law, in some cases, really is unjust. The first position is too strong to be right, because it makes law too good to be tree. With the second position, however, it simply won't be the case that every law/morality conflict can be translated into a law/law conflict.

In Part III, I use two of Simon's own examples to probe for the source of this difficulty. Simon understands the process of legal argumentation in broadly Dworkinian terms: A lawyer must analyze legal propositions in the light of fundamental legal values and principles. However, Simon also adopts the Critical Legal Studies view that legal doctrine is "a set of structured instabilities"(12)--in Roberto Unger's words, "an expression of a small number of opposing ideas: principles and counterprinciples.'"(13) On this view, a lawyer can find a principle or counterprinciple in the law to back any plausible moral intuition, and Simon's examples (as I read them) illustrate this point. In that case, however, it turns out that the lawyer's antecedent moral views define and drive her choice of legal positions. The law-centered view of legal ethics turns out to be a morality-centered view in disguise.

One of Simon's reasons for preferring a law-centered theory to a morality-centered theory is that lawyers have the specialized know-how to address problems of competing legal values, but not moral problems couched in moral terms.(14) In Part IV, I argue the opposite. The kind of contextsensitive discretionary legal judgment Simon recommends is intellectually demanding, even exhausting. Simon, I expect, will freely acknowledge that his view places heavier cognitive demands on lawyers than the prevailing view of legal ethics as a system of categorical bright-line rules. At the same time that Simon makes the deliberative process more challenging, however, he also strips away the lawyer's most important cognitive resources for meeting the challenge: the lawyer's moral sentiments, grounded in the lawyer's participation in moral communities broader than the legal profession. In my view, the vaunted "artificial reason of the law" is no substitute for the emotional responses that a lifetime of moral education provides us.(15)

In fact, I now tend to believe that no form of reasoning, artificial or not, can bear the burden of discerning right from wrong in particular cases. We just aren't that smart. Luckily, we don't have to be, provided that our moral sentiments are in good working order. Emotions are not merely impediments to clearheaded analysis: They serve an irreplaceable cognitive function that gives moral judgment, which originates in our emotional responses, a crucial cognitive advantage over legal reasoning.

This summary sounds like an assault on Simon's theory, but I do not mean it to be. Simon writes polemically, and he defines his own theory in part by overstating its differences from alternatives. Simon is on to something crucially important: namely, that many problems in legal ethics which seem like moral dilemmas are actually legal mistakes, and really arise only from taking a narrow-minded, formalistic view of the law. He rightly criticizes morality-centered theories (including mine) for giving up on the law too soon and creating faux moral dilemmas, and he shows in detail the right way to think about many traditional dilemmas of lawyering. These are tremendous virtues of The Practice of Justice. But he oversells his position by insisting, polemically, that all legal ethics problems are really legal problems. Defending an all-or-nothing theory drives him to bad arguments (the only kind there are when your conclusion is wrong!) and raises in the reader the peculiar expectation that a theory of lawyer's ethics might have everything to do with law and nothing to do with ethics.

1. SIMON AND THE PHILOSOPHERS

   A bit over twenty years ago, Charles Fried began an influential paper on legal ethics with the startling question, "Can a good lawyer be a good person?"(16) What a question. Millions of good people have been good lawyers, or so we conventionally suppose. But Fried's point was to examine the very basis of conventional wisdom on the subject. "Can a good lawyer be a good person?" is not a sociological question about who the legal profession attracts--what kinds of people, as a matter of empirical fact, good lawyers turn out to be. It is, in Kant's sense, a critical question, asking by what right we are entitled to the concept morally good lawyer. Lawyers, Fried observes, loyally advance the interests of "over-privileged or positively distasteful clients."(17) They are willing "to help their clients use the law to the prejudice of the weak or the innocent,"(18) because the core principle of legal ethics is loyal service to...