Law's Ambition and the Reconstruction of Role Morality in Canada

(2005) 28 Dalhousie Law Journal 267-310

45 Pages Posted: 4 Aug 2005 Last revised: 7 May 2016

See all articles by David M Tanovich

David M Tanovich

University of Windsor - Faculty of Law

Abstract

There is a growing disconnect and alienation between lawyers and the legal profession in Canada. The etiology of this discontent is complex. One cause, which is the focus of the paper is philosophical in nature. It concerns the role morality of the profession and what I posit is a disconnect between the role lawyers want to pursue (i.e. a facilitator of justice) and the role that they perceive the profession demands they play (i.e. a hired gun). In my opinion, this perception is a mistaken one. Given the paucity of Canadian research and reflection on ethics and professionalism, we have created an ethic of lawyering that finds expression in American stories, fears and academic criticisms. I argue in the paper that over the last 15 years, we have been engaged in a process of role morality reconstruction. Under this reconstructed institutional role, lawyers are problem-solvers whose mandate is to seek justice not only for their client but also for the broader legal, social and political system within which they operate. In other words, I contend that an ethic of client-centered zealous advocacy has slowly begun to be replaced with a justice-seeking ethic that seeks to give effect to law's ambition. Part II of this article provides the basic foundations of my reconstruction thesis. In the first section of Part II, I define role morality and defend it as the beacon of ethical reflection rather than jettisoning it in favour of an approach that relies on personal responsibility or morality. The next section attempts to trace the evolution of our understanding of the public interest. As the legal profession has always attempted to ground itself in the public interest, how the profession conceives of it will largely determine how it, and its members, should conduct themselves. The final section of Part II attempts to provide the evidence of this reconstructed role morality by exploring statements from leading members of the profession, recent ethics jurisprudence and by examining equality and harm prevention principles in our codes of conduct. Like any large bureaucratic institution, the profession will inevitably be slow to respond to its new identity and the changing set of norms and values that go with that identity. The required institutional changes are beyond the scope of the paper. However, Part III does address how lawyers can on an individual level give effect to this evolving role morality by adopting a pervasive justice-seeking ethic and by engaging in identity lawyering that is consistent with the interests of justice.

Suggested Citation

Tanovich, David M, Law's Ambition and the Reconstruction of Role Morality in Canada. (2005) 28 Dalhousie Law Journal 267-310. Available at SSRN: https://ssrn.com/abstract=764606

David M Tanovich (Contact Author)

University of Windsor - Faculty of Law ( email )

401 Sunset Avenue
Windsor, Ontario N9B 3P4
Canada
519-253-3000 (ext. 2966) (Phone)

HOME PAGE: http://www.uwindsor.ca/law/tanovich/

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