Legal Advising and the Rule of Law

Abstract:     
The standard debate in theoretical legal ethics is that it is framed in terms of the sorts of evaluative considerations that would inform the deliberations of persons acting as ordinary moral agents. This lecture argues that legal ethics should instead be understood as making a demand for justification in political terms - that is, calling for a defense of lawyering norms in terms of the legitimacy of institutions and their associated roles. Political values are those that are associated with the problems and possibilities of living together in communities - they are the sorts of values that are inherent in there being such a thing as politics. This does not mean they are detached from ordinary moral considerations, only that they are not directly reducible to the sorts of values that inform the deliberation of moral agents outside the context of relationships with others in a political community. I argue in this lecture that the particular political evaluative standards that are the starting point for reflection on lawyers' ethics are those concerned with the ideal of the rule of law. Rule of law values give a normative underpinning to the lawyer's role, explain why role obligations have priority over ordinary moral duties, and also establish an obligation of fidelity to law, which lawyers must respect when acting in a representative capacity.

This lecture was given as a keynote presentation at the Third International Legal Ethics Conference, Gold Coast, Australia, in July 2008.

Keywords: Legal ethics, rule of law

Working Paper Series