Legal Dualism, Legal Ethics, and Fidelity to Law
Journal of the Professional Lawyer, Forthcoming
48 Pages Posted: 23 Jun 2016 Last revised: 17 Dec 2016
Date Written: June 1, 2016
This Article argues that there is an important relationship between the nature of law and legal ethics. A crucial claim in support of this thesis is that the nature of law varies with the purpose for which it is being interpreted. In particular, the Article contends that natural law provides the best account of the nature of law when an interpreter seeks moral guidance from the law, and legal positivism provides the best account when an interpreter seeks instead to describe the law or to predict how others will interpret it. This philosophical position it labels “legal dualism.” Legal dualism has a significant implication for legal ethics: to the extent the law serves as a source of moral guidance for interpreters, they must act as natural lawyers. The Article tests legal dualism and its corollary for legal ethics against Bradley Wendel’s justly lauded book, LAWYERS AND FIDELITY TO LAW. Wendel pairs legal positivism and the moral legitimacy of law, commitments that legal dualism suggests are incompatible. The Article argues that, while Wendel makes many important contributions, his argument is not fully successful to the extent it conflicts with legal dualism. It concludes that he — and others — should acknowledge and address the need for ethical attorneys to act as natural lawyers. That means lawyers sometimes must make moral judgments in saying what the law is.
Keywords: Legal Ethics, Legal Dualism, Natural Law, Legal Positivism, Bradley Wendel
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