The Jurisprudential Turn in Legal Ethics

Katherine R. Kruse

Mitchell Hamline School of Law

January 17, 2011

Arizona Law Review, Vol. 53, p. 493, 2011
UNLV William S. Boyd School of Law Legal Studies Research Paper

When legal ethics developed as an academic discipline in the mid-1970s, its theoretical roots were in moral philosophy. The early theorists in legal ethics were moral philosophers by training, and they explored legal ethics as a branch of moral philosophy. From the vantage point of moral philosophy, lawyers’ professional duties comprised a system of moral duties that governed lawyers in their professional lives, a “role-morality” for lawyers that competed with ordinary moral duties. In defining this “role-morality,” the moral philosophers accepted the premise that “good lawyers” are professionally obligated to pursue the interests of their clients all the way to the arguable limits of the law, even when doing so would harm third persons or undermine the public good. More recent scholarship in legal ethics has rejected the moral philosophers’ premise that lawyers’ ethical duties demand instrumentalist partisan interpretation of the “bounds of the law.” In what I call the “jurisprudential turn” in legal ethics, legal scholars are now increasingly looking to jurisprudential and political theory to explore the interpretive stance that it is appropriate for lawyers to take with respect to the “bounds of the law” that limit their partisan advocacy. Just as jurisprudential theories of adjudication ground judges’ duties of legal interpretation in the role of judges in a democratic society, jurisprudential theories of lawyering ground lawyers’ interpretive duties in analysis of the role lawyers play in a democratic system of government. This Article critically examines the emerging uses of jurisprudential theory in legal ethics. It argues that jurisprudential theory presents an attractive alternative to moral theory in legal ethics because it provides a rubric for limiting lawyers’ no-holds-barred partisan manipulation of law that springs directly from the lawyer’s professional duties rather than competing with them. It critiques the two major schools of thought in the “jurisprudence of lawyering” based on Dworkian and positivist jurisprudence. And it questions the common framework within each jurisprudential school, which assigns lawyers a role as case-by-case lawmakers, suggesting that this framework imposes an inappropriately lawyer-centered focus on assessments of the legitimacy of law that more properly belong to clients.

Number of Pages in PDF File: 43

Keywords: legal ethics, jurisprudence, lawyers, lawyering, client-centered

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Date posted: January 18, 2011  

Suggested Citation

Kruse, Katherine R., The Jurisprudential Turn in Legal Ethics (January 17, 2011). Arizona Law Review, Vol. 53, p. 493, 2011; UNLV William S. Boyd School of Law Legal Studies Research Paper . Available at SSRN: https://ssrn.com/abstract=1742557

Contact Information

Kate Kruse (Contact Author)
Mitchell Hamline School of Law ( email )
875 Summit Ave
St. Paul, MN 55105-3076
United States
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