Authoritarian Legal Ethics: Bradley Wendel and the Positivist Turn

20 Pages Posted: 18 Jan 2012

See all articles by William H. Simon

William H. Simon

Columbia University - Law School; Stanford University - Stanford Law School

Date Written: December 16, 2011

Abstract

Bradley Wendel's LAWYERS AND FIDELITY TO LAW exemplifies recent pushback against theories of legal ethics that require lawyers to make and act on complex judgments about the justice of their actions. Critics worry that such responsibility threatens either social order or the respect citizens of a democratic polity owe to constituted authority. Wendel elaborates these concerns and develops them jurisprudentially by connecting them to Legal Positivism. In this review, I argue that Wendel’s move toward Positivism leads him to underestimate the extent to which social order and democratic legitimacy depend on informal as well as formal norms and to adopt a utopian attitude toward constituted power. In addition, the book persistently treats as analytical propositions what are in fact empirical assertions for which Wendel has no evidence.

Suggested Citation

Simon, William H., Authoritarian Legal Ethics: Bradley Wendel and the Positivist Turn (December 16, 2011). Columbia Public Law Research Paper No. 11-291. Available at SSRN: https://ssrn.com/abstract=1987009 or http://dx.doi.org/10.2139/ssrn.1987009

William H. Simon (Contact Author)

Columbia University - Law School ( email )

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Stanford University - Stanford Law School ( email )

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