Professionalism as Interpretation
89 Pages Posted: 17 Feb 2005
In this Article, I defend the interpretive attitude of professionalism. Professionalism is a stance toward the law which accepts that a lawyer is not merely an agent of her client. Rather, in carrying out her client's lawful instructions, a lawyer has an obligation to apply the law to her client's situation with due regard to the meaning of legal norms, not merely their formal expression. Professionalism requires a lawyer acting in a representative capacity to respect the achievement represented by law, namely the final settlement of contested issues (both factual and normative) with a view toward enabling coordinated action in our highly complex, pluralistic society. This social function of law gives it legitimacy, in the sense that the law becomes worthy of being taken seriously, interpreted in good faith with due regard to its meaning, and not simply seen as an obstacle standing in the way of the client's goals. The grounds for the authority of law entail a conception of lawyers as custodians of the law, which in turn entails principles of legal interpretation that constrain the manipulation of legal norms to serve the ends of clients.
The jurisprudential argument in the Article relies on the nature of language and its inability to capture the full range of meaning that a text must bear. In other words, there is no such thing as a self-interpreting legal text that regulates the actions of lawyers or clients apart from the exercise of interpretive judgment by a community of professionals. As a consequence, the law cannot operate as a device to settle normative conflict and coordinate activity without a commitment on the part of law-interpreters to respect the substantive meaning standing behind the formal expression of legal norms. This theory of interpretation stands in contrast to the prevailing belief of many scholars and practicing lawyers, which can be labeled legal realism, law-as-price, or the Holmesian bad man view of law. This view regards the law as functioning in practical reasoning as only one cost among many, and not as the expression of a view that individuals should, or should not do something. Professionalism, by contrast, requires lawyers to treat the law as having normative significance as such.
After first considering a simple hypothetical case, the Article takes up three recent controversies - tax shelters, the Enron transactions, and the torture memos prepared by Justice Department lawyers - that show clearly the distinction between professionalism in interpretation and the Holmesian bad man stance toward the law. In my view, if the lawyers involved in those cases deserve moral criticism, it is not due to the moral wrongfulness of the clients' ends, but for failing in their responsibilities to treat the law as legitimate.
This paper is an updated version of a work-in-progress previously published on SSRN under the title The Jurisprudence of Enron: Professionalism as Interpretation.
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