Legal Ethics and Professional Responsibility
This essay, a contribution to a symposium at Duquesne Law School entitled Resurrecting Truth in American Law and Public Discourse, was inspired by an observation made by Bernard Williams, in his paper “Saint-Just’s Illusion.” Williams noted that the issue of moral objectivity always come back to what to do with disagreement in matters of morality, and what sorts of considerations might lead the other party out of error. And in his book, Truth and Truthfulness, Williams argued (among other things, in a rich and subtle work) that the dispositions of truthfulness cultivated by citizens of a liberal political community are deeply connected to other political values such as liberty, equality, and justice. Truthfulness as a value is related functionally to a system with its characteristic ends, which in politics include sustaining a political community and ensuring that members of the community are treated with respect. Untruthful practices in political life are not offenses against empirical reality but against political ideals such as equality, reciprocity, and the dignity of citizens. As Williams contends, an exploration of the problem of truth in the public domain is “related to larger structures of thought which are essential to our personal, social, and political self-understanding.”
The essay begins by considering whether occupants of different social roles, such as politicians, journalists, and lawyers, are situated differently with respect to the ethical norms that relate to practices of truthfulness. The question of role-differentiated morality can be stated in terms of the conditions under which a social role may support demand that justifiably diverge from those of ordinary background morality. But if political officials, candidates, commentators, and others can rightly be criticized for lying, deception, or (in Harry Frankfurt’s sense) bullshitting, then the question becomes how to strengthen the institutions and practices that sustain truthfulness as a value. In an allegedly “post-truth” world, the legal profession has actually made a significant contribution to the project of supporting communal life without resorting either to coercion or mystification. The legal system allows citizens to present claims against the state, or against each other, for resolution on a reasoned basis, relying on both empirical facts and normative principles. The parties to an adjudicated proceeding must give reasons that are well-supported in fact and law for the result they are seeking; judges in turn owe the parties a reasoned decision that takes into account the competing positions, the evidence for both sides, and the legal principles that bear on the resolution of the dispute. Legal procedures have a built-in relationship with what Williams contends are the two hallmarks of truth – Sincerity (saying what you mean, which sustains social trust) and Accuracy (getting it right, which allows members of a community to pool reliable information about the world).
As an illustration of truthfulness as a regulative ideal in public life, consider the recent litigation over the Trump Administration’s travel ban orders. The government’s position concerning the lawfulness of the orders, and the response of courts to those arguments, provide a compelling example of the power of truthful practices to resist deception and bullshit in public life.
Wendel, W. Bradley, "Truthfulness as an Ethical Form of Life," 56 Duquesne Law Review 141 (2018)