Intuition and Theory in Legal Ethics Teaching

Abstract

Ethical decision-making requires normatively grounded intuitions. Lawyers making ethical decisions must be able to perceive an ethical dilemma, to determine the appropriate response to the dilemma and to put that response into action. Doing so requires normative commitments to what being an ethical lawyer requires but also, and more importantly, it requires the ability to respond to ethical dilemmas intuitively, as a matter of sense and perception. Simply being able to reason through a problem using a set of principles is insufficient. This means that in teaching ethical theories, theories that as forms of principled reasoning are essentially equivalent (i.e., equally normatively), legal ethics teachers should encourage students to incorporate and adopt the theory of reasoning that best makes sense of their existing intuitions, and that can be the basis for forming deeper and more practice specific intuitions going forward.

This paper grounds its argument in the literature of moral psychology and, in particular, Kohlberg's analysis of moral reasoning and Haidt's social intuitionist theory of moral decision-making. It also considers the main theoretical explanations (and critiques) of the lawyer's role, and the implications of teaching moral pluralism for legal practice.

Keywords: legal ethics, ethics teaching, moral psychology, social intuition, Haidt, Kohlberg