If Philosophical Legal Ethics is the Answer, What is the Question?

Abstract:     
Philosophical legal ethics, a sub-disicpline of legal ethics arguably initiated by Charles Fried and Richard Wasserstrom, follows a consistent methodological structure: First, what is the “standard conception” of the lawyer’s role? Second, what is the relationship between the standard conception – the conception of the lawyer as a partisan advocate for her client, neutral about (and unaccountable for) the morality of her client’s aims – and the claims of morality more generally? And third, given that relationship, can what lawyers do be morally justified? Or should what lawyers do be changed? The concerns of philosophical legal ethics are not primarily doctrinal, analyze the lawyer’s role with some generality, and are fundamentally rooted in philosophy, moral or political.

This article uses two recent publications in the area of philosophical legal ethics - Daniel Markovits’ A Modern Legal Ethics: Adversary Advocacy in a Democratic Age and Tim Dare’s Counsel of Rogues? A Defense of the Standard Conception of the Lawyer’s Role - to argue that the straightforward rhetorical structure of philosophical legal ethics belies the difficulty inherent in analyzing something that necessarily incorporates both legality (doctrines of law) and ethics (the ability of a person to lead a well-lived life), particularly since both legal doctrine and a well-lived life also bear some relationship to the dictates of impartial morality, while yet remaining in some way distinct from impartial morality. Its seemingly straightforward structure also obscures the risk for philosophical legal ethics of drawing implications from ethics for law, or from law for ethics, even where those implications may be unwarranted or actively problematic.

Keywords: legal ethics, law governing lawyers

Working Paper Series