The Fragility of Legal Ethics: On the Role of Theory, Lawyerly Virtues, and Moral Remainders in the Life of a Good Lawyer
27 Pages Posted: 1 Nov 2022
Date Written: October 27, 2022
The ability of lawyers to uphold the norms of the rule of law and justice are often vulnerable to external influences. ‘Where were the lawyers?’ has been asked many times in response to sundry episodes in modern Western history where fundamental norms of legality, morality, justice, and humanity were violated. The goodness of lawyers also seems vulnerable because their professional role is characterised by divided loyalties and commitments leading lawyers to sometimes experience, at least on a pre-reflective level, genuine conflicts of values.
This vulnerability or fragility of a lawyers’ professional life resonates profoundly with the central theme of Martha Nussbaum’s magnum opus The Fragility of Goodness: Luck and Ethics in Greek Tragedies and Philosophies (Fragility). In this classic philosophical work Nussbaum offers an in-depth study of Greek tragedies and Greek philosophy, asking to what extent a good life is fragile—that is, vulnerable to the influence of luck—and what strategies make for a stable ethical life. In Fragility, Nussbaum takes issue with what she calls a Platonic answer to these questions, an approach that assigns a ‘life-saving role’ to reason. Instead, she proposes a luck-sensitive neo-Aristotelian approach to ethics on the basis of her reading of Aristotle’s philosophy and the Greek tragedies.
This paper uses Fragility as a lens that allows us to identify and critically discuss Platonic strands within philosophical legal ethics. More constructively, Fragility is also used as a source of inspiration for sketching the contours of a luck-sensitive neo-Aristotelian approach to legal ethics. This approach will be characterised by (a) a holistic philosophical method, (b) a focus on lawyerly virtues, and (c) the accommodation of moral remainders in its understanding of the life of a good lawyer.
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