Document Type

Article

Publication Date

Summer 2007

Keywords

Role of lawyers, Lawyering, Ethical decision making, Moral decision making, Deborah Rhode, David Luban, Law governing lawyers, Weberian tradition

Disciplines

Law and Society | Legal Ethics and Professional Responsibility | Legal Profession

Abstract

In this essay I would like to consider the nature of the role of lawyers from the point of view of both jurisprudence and the sociology of professions. From this perspective it is apparent that the judgment characteristic of lawyers' expertise is not primarily the exercise of ethical discretion. Rather, it is the application of legal norms, which may incorporate moral principles by reference, but which are analytically distinct from morality. The task of legal education, and specifically of legal ethics education, might include training lawyers to be better at making moral judgments. In fact, there has been a fairly persistent (if minority) view that law schools should assume some responsibility for improving the ethical decision-making capacities of students. On this view, the interesting pedagogical question is how this should best be accomplished, with advocates tending to favor "experiential" learning environments such as simulations, live-client clinics, and pro bono representation. The traditional doctrinal law school course, complete with casebooks and Socratic questioning, certainly does not appear to have much to recommend, from the point of view of training better moral decision-makers.

Legal ethics differs in kind from ordinary ethics because the social function of the law is to settle normative disagreement procedurally and to adopt a provisional social settlement of moral conflict that precludes acting on the basis of ordinary first-order moral reasons. Although law is a richly normative domain, full of value-laden concepts like fairness, loyalty, dignity, autonomy, well-being, reasonable care, and good faith, lawyers understand these concepts to have specific legal meanings, as terms of art. The following section sets out briefly the sociological and jurisprudential arguments for constructing a technical domain of professional expertise for lawyers, separate from the practices of ordinary moral reasoning. If that argument is successful, then the implication for the teaching of legal ethics is that a law school legal ethics course should focus on the values of lawyering that are imminent within the law governing lawyers-values such as fiduciary obligation and candor to third parties-and not purport to address the way people make moral judgments in ordinary life. My goal in this essay is to establish the way in which law and ethics interact, and thus to point the way toward a more comprehensive approach to teaching professional responsibility.

Publication Citation

Published in: Saint Louis University Law Journal, vol. 51, no. 4 (Summer 2007).

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