Should a morally ambitious person become a lawyer? Surely the answer should be yes: Each year thousands of students enter law school, and a large portion of them are there because they want to pursue justice in a way that draws on their highest intellectual and moral powers. And yet, as William Simon observes on the first page of The Practice of Justice, "[t]hey tend to come out with such hopes diminished, and the hopes often disappear under the pressures of practice."(1) The phenomenon is not new; there have always been those who find the practice of law disappointing. Oliver Wendell Holmes, who wondered aloud "why the subject was worthy of the interest of an intelligent man,"(2) described law practice as "the greedy watch for clients and practice of shopkeepers' arts, the mannerless conflicts over often sordid interests."(3) That was a century ago. A great many modern lawyers would agree. The problem is not just that today's fiercely competitive market makes it difficult for lawyers to turn away legitimate business, no matter how sordid they may find it. It is also that legal ethics, as most lawyers understand it, categorically requires zeal on behalf of all client interests, sordid or not. The rule of zeal, like other categorical rules of legal ethics, precludes lawyers from responding to moral judgments such as Holmes'.
According to Simon, conventional conceptions of legal ethics misunderstand the nature of law. They fail to appreciate the resources that law contains, and they overlook the crucial role that lawyers' discretionary judgments play in mobilizing those resources and bringing them to life. Simon's aim in The Practice of Justice is nothing less than a proof that morally ambitious lawyering is possible, and indeed ethically required. Simon's "argument assumes that the tasks of ordinary practice are often practically and ethically complex. In doing so [Simon is] faithful ... to the longstanding premise of the bar--that ordinary lawyering can be intellectually and morally engaging...."(4) With that assumption in mind, he offers a rigorous and far-reaching argument that legal ethics requires lawyers to make contextual, discretionary ethical judgments, rather than taking refuge behind categorical rules of zeal, confidentiality, and moral neutrality toward the client's ends.
But Simon's targets include more than the conventional combination of zealous advocacy and moral neutrality. They also include critiques of this view which argue that lawyers should never be morally neutral toward the ends they advance or the means they employ. Simon agrees that lawyers cannot abdicate responsibility for the values they further, but he disagrees that the source of those values is morality rather than law itself.
Simon's is a law-centered theory. The values he wants lawyers to further are legal values; the justice he means them to pursue is legal justice. "Lawyers," he writes, "should take those actions that, considering the relevant circumstances of the particular case, seem likely to promote justice."(5) He elaborates as follows:
"Justice" here connotes the basic values of the legal system.... Decisions about justice are not ... applications of ordinary morality. They are legal judgments grounded in the methods and sources of authority of the professional culture. I use "justice" interchangeably with "legal merit."(6)
This passage implicitly contrasts Simon's law-centered theory with alternatives that view legal ethics as "applications of ordinary morality"-what might be called morality-centered theories.
One such theory is my own, which I elaborated in my 1988 book Lawyers and Justice.(7) Simon has generous things to say about my book,(8) and our conclusions and arguments on many subjects are the same; some readers might regard us (as I do) as kindred spirits because of our shared criticisms of adversarial ethics and our advocacy of what Simon calls "ethically ambitious or high-commitment lawyering."(9) Simon seems to agree, and remarks that he has "tended in public--and indeed in this book--to focus on the relatively few matters on which we disagree."(10) One of those matters is the foundational question of whether a law-centered or a morality-centered theory is the best way to approach the subject of legal ethics. That is the issue I mean to explore in this essay.(11)
I begin, in Part I, by placing Simon's book within the body of philosophical writing on legal ethics emerging over the past two decades, including his own early work. The aim is to understand why the choice between law-centered and morality-centered theories matters, by exploring the arguments that Simon is reacting against.
In Part II, I examine one of Simon's central assertions, that every conflict lawyers face between law and morality can be translated into a conflict among legal norms. He believes this because he adopts a strongly moralized, anti-positivistic conception of legal interpretation, similar in important ways to Ronald Dworkin's but even less fettered by positive law. This view of law and interpretation, I argue, lands Simon in a dilemma. Either he is compelled to argue that law can never be morally pernicious, or else he must admit that some law, in some cases, really is unjust. The first position is too strong to be right, because it makes law too good to be tree. With the second position, however, it simply won't be the case that every law/morality conflict can be translated into a law/law conflict.
In Part III, I use two of Simon's own examples to probe for the source of this difficulty. Simon understands the process of legal argumentation in broadly Dworkinian terms: A lawyer must analyze legal propositions in the light of fundamental legal values and principles. However, Simon also adopts the Critical Legal Studies view that legal doctrine is "a set of structured instabilities"(12)--in Roberto Unger's words, "an expression of a small number of opposing ideas: principles and counterprinciples.'"(13) On this view, a lawyer can find a principle or counterprinciple in the law to back any plausible moral intuition, and Simon's examples (as I read them) illustrate this point. In that case, however, it turns out that the lawyer's antecedent moral views define and drive her choice of legal positions. The law-centered view of legal ethics turns out to be a morality-centered view in disguise.
One of Simon's reasons for preferring a law-centered theory to a morality-centered theory is that lawyers have the specialized know-how to address problems of competing legal values, but not moral problems couched in moral terms.(14) In Part IV, I argue the opposite. The kind of contextsensitive discretionary legal judgment Simon recommends is intellectually demanding, even exhausting. Simon, I expect, will freely acknowledge that his view places heavier cognitive demands on lawyers than the prevailing view of legal ethics as a system of categorical bright-line rules. At the same time that Simon makes the deliberative process more challenging, however, he also strips away the lawyer's most important cognitive resources for meeting the challenge: the lawyer's moral sentiments, grounded in the lawyer's participation in moral communities broader than the legal profession. In my view, the vaunted "artificial reason of the law" is no substitute for the emotional responses that a lifetime of moral education provides us.(15)
In fact, I now tend to believe that no form of reasoning, artificial or not, can bear the burden of discerning right from wrong in particular cases. We just aren't that smart. Luckily, we don't have to be, provided that our moral sentiments are in good working order. Emotions are not merely impediments to clearheaded analysis: They serve an irreplaceable cognitive function that gives moral judgment, which originates in our emotional responses, a crucial cognitive advantage over legal reasoning.
This summary sounds like an assault on Simon's theory, but I do not mean it to be. Simon writes polemically, and he defines his own theory in part by overstating its differences from alternatives. Simon is on to something crucially important: namely, that many problems in legal ethics which seem like moral dilemmas are actually legal mistakes, and really arise only from taking a narrow-minded, formalistic view of the law. He rightly criticizes morality-centered theories (including mine) for giving up on the law too soon and creating faux moral dilemmas, and he shows in detail the right way to think about many traditional dilemmas of lawyering. These are tremendous virtues of The Practice of Justice. But he oversells his position by insisting, polemically, that all legal ethics problems are really legal problems. Defending an all-or-nothing theory drives him to bad arguments (the only kind there are when your conclusion is wrong!) and raises in the reader the peculiar expectation that a theory of lawyer's ethics might have everything to do with law and nothing to do with ethics.
I. SIMON AND THE PHILOSOPHERS
A bit over twenty years ago, Charles Fried began an influential paper on legal ethics with the startling question, "Can a good lawyer be a good person?"(16) What a question. Millions of good people have been good lawyers, or so we conventionally suppose. But Fried's point was to examine the very basis of conventional wisdom on the subject. "Can a good lawyer be a good person?" is not a sociological question about who the legal profession attracts--what kinds of people, as a matter of empirical fact, good lawyers turn out to be. It is, in Kant's sense, a critical question, asking by what right we are entitled to the concept morally good lawyer. Lawyers, Fried observes, loyally advance the interests of "over-privileged or positively distasteful clients."(17) They are willing "to help their clients use the law to the prejudice of the weak or the innocent,"(18) because the core principle of legal ethics is loyal service to clients--to all clients, even to evil clients. Thus, a lawyer who scrupulously follows legal ethics--a good lawyer--seems barred from "that devotion to the common good characteristic of high moral principles."(19) In this sense, there is a conceptual incompatibility "between [the] traditional conception of the lawyer's role and the ideal of moral purity."(20)
Just one year before Fried published The Lawyer as Friend, Richard Wasserstrom raised similar questions in an equally influential essay.(21) Like Fried, Wasserstrom argues that the professional morality of lawyers requires putting the ends of clients first, "irrespective, for the most part, of' the moral worth to which the end will be put or the character of the client who seeks to utilize it."(22) As a result, "the lawyer's world is a simplified moral world; often it is an amoral one; and more than occasionally, perhaps, an overtly immoral one."(23) Not only are lawyers concerned with client interests to the exclusion of all others, they often assume that they understand the client's best interests better than the client does. Thus, at the same time that lawyers ignore interests other than their clients', they fail to take their clients' autonomy seriously. Wasserstrom proceeds to analyze the arguments on behalf of lawyers' "role-differentiated behavior,"(24) and (unlike Fried, who discovered an ingenious but controversial defense of conventional legal ethics) he finds them for the most part wanting.(25)
Putting to one side the different answers Fried and Wasserstrom offer, it seems clear that they both pose the same question--Fried's "Can a good lawyer be a good person?"--and pose it in similar terms. The question arises out of a tension between professional duties and moral principles that seem more basic because they apply to all people and not just to professionals. For Fried and Wasserstrom, this tension raises a philosophical question about whether anyone is entitled to appeal to the special morality of a social role when it conflicts with universal moral principles.
It was not by chance that Fried and Wasserstrom found themselves gripped by the same question at the same time. Both Wasserstrom and Fried are accomplished moral philosophers as well as lawyers. For most of this century, English-language moral philosophy has been preoccupied with universal moral theories, mostly those of Kant and the utilitarians. Almost inevitably, the central question for a moral philosopher considering professional ethics is whether the special duties of doctors, lawyers, soldiers, and scientists can be justified in universalist terms.
Fried's and Wasserstrom's essays appeared in the mid-1970s, a time of vast ambition in moral philosophy. The publication of John Rawls' A Theory of Justice in 1971 and Robert Nozick's Anarchy, State, and Utopia in 1974 provided inspiring examples of how academic analytic philosophy could illuminate public questions. Around that time a handful of prominent philosophers founded the instantly prestigious journal Philosophy & Public Affairs. Also at that time, Ronald Dworkin decisively transformed legal philosophy by arguing that moral theory lies at the heart of legal theory, in the essays collected in his 1978 book Taking Rights Seriously. In such a climate, it is hardly surprising that moral philosophers should turn their attention to legal ethics--regarded by most lawyers, then and now, as a pedestrian and specialist subject--and draw it into their ambit.
It scarcely exaggerates to say that Fried and Wasserstrom reinvented legal ethics as a philosophical topic. The subject is as old as Plato's Gorgias, and lawyers and moralists in the nineteenth century wrote thoughtfully about the problems of legal ethics.(26) But Plato's worries about sophistry apply to very little of the work of modern lawyers, and most of the nineteenth-century writing sank into oblivion. The subject completely vanished from moral and legal theory in the twentieth century, and it is hard to find a philosophical essay on legal ethics in the seventy-five years before Wasserstrom's was published.(27) Fried and Wasserstrom inaugurated a new approach to legal ethics as a theoretical subject, an approach that centers on the issue of role morality and its conflicts with universal morality. Moreover, the very question that Fried poses throws conventional legal ethics on the defensive. It presupposes the primacy of the good person over the good lawyer, and suggests thereby that there might be something fundamentally wrong with the accepted practices of adversarial hardball.
These ideas fell on receptive soil; the late 19708 stand out as one of the most creative periods ever in thinking about legal ethics. In 1978, Gerald Postema drafted a working paper that he would later publish as Moral Responsibility in Professional Ethics,(28) one of the most sophisticated efforts to explore the problem of role morality in legal ethics. The same year, Murray Schwartz published a paper questioning the ideal of zealous advocacy in negotiation and counseling, and providing the first conceptually crisp definition of the traditional role, which he understood as the combination of a principle of zeal and a blanket disclaimer of moral accountability for the harms that zeal may inflict.(29) By 1978, Alan Goldman had begun writing The Moral Foundations of Professional Ethics, a book that makes the problem of role morality its central unifying theme.(30) And, at the same time, former federal Judge Marvin Frankel was writing Partisan Justice, an important critique of adversarial excess.(31)
Then, in early 1979, William Simon (a young and unknown clinician) published The Ideology of Advocacy,(32) a long, deeply original, and coruscatingly brilliant polemic against the ideal of adversarial advocacy. Simon argued that every American school of jurisprudence offers some justification or other of adversarial advocacy, but that the practices of zealous advocacy undercut the very values to which those justifications appeal.(33) The reason in each case is the same. The theories agree that law and legal institutions exist to promote ends such as autonomy, individuality, human responsibility, and dignity. But advocates detach disputes from their substance and turn them into issues of procedure that have nothing to do with any end that disputants care about. Instead of enhancing client autonomy, the advocate takes over for the client. Instead of celebrating individuality, the advocate argues in stereotypes, including stereotypes of the client. Instead of helping the client assume responsibility, the advocate aims to cast the client's burdens onto other people regardless of the merits. Instead of affirming the client's dignity, the advocate settles for courtroom ceremonials.(34) All the justifications for the ideology of advocacy collapse in contradiction; the ideology is, in fact, a jurisprudential embarrassment.
In a suggestive final section, Simon abandons the traditional concept of the lawyer's role in favor of "non-professional advocacy," whose "foundation principle ... is that the problems of advocacy be treated as a matter of personal ethics."(35) Personal ethics (an unfortunate choice of term, as we shall soon see) are what I earlier called universal moral principles: They "apply to people merely by virtue of the fact that they are human individuals. The obligations involved ... do not follow from social role or station."(36) Simon explains how non-professional advocacy would work:
The non-professional advocate presents himself to a prospective client as someone with special talents and knowledge, but also with personal ends to which he is strongly committed. The client should expect someone generally disposed to help him advance his ends, but also prepared to oppose him when the ends of advocate and client conflict.(37)
Thus "the major principle of conduct is this: advocate and client must each justify himself to the other."(38)
When I began thinking about legal ethics in 1979, it seemed clear that Simon was working along the same lines as Postema, Schwartz, and Wasserstrom, criticizing adversarial ethics and arguing for the primacy of universal morality over lawyers' role morality. I was arriving at conclusions similar to these authors', and my first papers on legal ethics drew heavily on their ideas.(39) It felt as if a breakthrough was in the making, and perhaps that exciting prospect led me to overlook the fact that Simon's was a very different argument from Postema's and Wasserstrom's--and, for that matter, from mine. Where Postema, Wasserstrom, and I regarded the ideology of advocacy as a mistake in moral theory, Simon saw it as a mistake in jurisprudence--a misunderstanding of law rather than a misunderstanding of ethics. The arguments proceeded in opposite directions. The moral philosophers began with the question of whether role morality supersedes ordinary morality. They concluded that the answer is no, and for that reason they rejected the ideology of advocacy. Simon began with the jurisprudential arguments for the ideology of advocacy, and asserted the primacy of personal morality only because he concluded that those arguments fail. The difference in emphasis and direction seemed unimportant at the time, but--as we shall see-it is absolutely fundamental to understanding The Practice of Justice.
Those of us who sympathized with his views hoped that Simon would develop his "non-professional advocacy" alternative, which he sketched in a bare fifteen pages out of 115 in The Ideology of Advocacy.(40) We had to wait nearly ten years, and when Simon finally published Ethical Discretion in Lawyering,(41) his argument had changed dramatically. At this point, I will begin to discuss The Practice of Justice explicitly, because Ethical Discretion in Lawyering eventually grew into the core of Simon's book (it makes up much of chapter six).
The critique of the ideology of advocacy (now renamed "the Dominant View" of legal practice(42)) is just as forceful as in Simon's 1978 essay. The insight that the Dominant View rests on a jurisprudential mistake likewise remains, although we shall soon see a surprising change in what Simon takes that mistake to be. However, his earlier ideas about non-professional advocacy and personal morality have completely disappeared. Simon now rejects the appeal to personal morality, along with the role-morality analysis, and indeed the entire question "Can a good lawyer be a good person?"(43)
In retrospect, one can now see that Simon's earlier promotion of personal ethics was not the result of a philosophical argument that personal ethics takes precedence over role-based ethics. Rather, it was the "style of thought"(44) in personal ethics that appealed to him, because personal ethics focuses on substance rather than procedure. What Simon found objectionable about the ideology of advocacy was its indifference to the merits of cases; the appeal to personal ethics turns out to be a device for bringing the merits back into a good lawyer's purview.
By 1988, however, Simon had arrived at the view he elaborates in The Practice of Justice: namely, that the merits in question are legal merits, and that the resources for morally ambitious lawyering lie within the law itself, not in extralegal morality. This leads him to a somewhat dismissive view of personal ethics. Personal ethics is no longer a system of universal moral principles, as in The Ideology of Advocacy (and the writings of the moral philosophers). Now it is "just personal predispositions of various individuals."(45)
This is a mistake, for Simon has confused two radically different meanings of the regrettable phrase "personal ethics." As he used the term in The Ideology of Advocacy, it refers to moral principles that apply to all of us in virtue of our shared personhood.(46) In this context its antonym is professional ethics, that is, role-differentiated morality. In The Practice of Justice, by contrast, Simon seizes on the alternative meaning of "personal" as private rather than public, idiosyncratic rather than universal.(47) Now its antonym is impersonal ethics--remarkably, precisely the philosophical concept of morality that Simon had labeled "personal ethics" in the earlier article. The role-morality theorists argue that professional morality should be subordinate to personal ethics in the first sense, referring to moral principles that bind us qua persons, regardless of our predilections. Simon now substitutes the second sense, and writes as though the role-morality theorists mean to subordinate professional morality to lawyers' individual whims. None of the role-morality theorists believes anything of the sort.(48)
Dismissing morality as nothing more than "personal predispositions"(49) is a surprisingly sophomoric form of moral skepticism--too sophomoric to think that Simon has fallen into it by mistake, especially given that he explicitly disowns moral skepticism.(50) In fact, Simon immediately acknowledges what a caricature he has offered: "The role-morality theorists recognize that the values competing with client interests ... are not just subjective predispositions."(51) Then why does he say the opposite on the previous page? The answer, I think, is that Simon is not trying to analyze the nature of morality; he is trying to change the subject from moral theory to jurisprudence. That requires him to sidestep the claims of moral objectivity that philosophers from Kant on have devoted themselves to understanding. Even after admitting that moral values are not just subjective predispositions, he still describes morality merely as "nonlegal values socially grounded outside the legal system"(52)--as though the important question is not whether moral principles are valid or binding, but only whether they are "socially grounded" (whatever that means).
Remarkably, the phrases I have quoted are all that Simon has to say about the claims of morality on a lawyer's conscience. He offers no argument for the irrelevance, let alone the non-objectivity, of moral principles. Instead, as I have suggested, he shrugs off the problem of role morality by changing the subject:
[W]hy shouldn't we see these conflicts [between client and third-party or public interests] as occurring within the legal domain--as challenges from competing legal values? Why shouldn't we see the critique of the Dominant View as a jurisprudential argument ... rather than a lay moral argument ...?(53)
Where the role theorists favor a "law/morals characterization"(54) of value conflicts, Simon prefers a "law/law characterization."(55) For Simon the central problems of legal ethics no longer represent a conflict between being a good lawyer and a good person. Instead, they represent "legal norms in tension with each other."(56)
I mentioned earlier that in The Practice of Justice, Simon believes that his principal target, the Dominant View of legal ethics, rests on a jurisprudential mistake.(57) But where, according to The Ideology of Advocacy, the mistake consists of erecting a justice system that undercuts the values on which legal institutions (including itself) rest, now the mistake is at once less dramatic and more abstract. It is the mistake of misunderstanding the "style of judgment" most appropriate to law.(58) One of the achievements of twentieth century American jurisprudence has been "the critique of formalism, mechanical jurisprudence, and categorical reasoning"(59) in judicial decisionmaking. Today we understand that the judicial role requires the intelligent, context-sensitive exercise of discretionary judgment. Simon points out that the same is tree in the standard view of prosecutorial ethics: The familiar maxim that prosecutors should aim at justice, not victory, requires contextsensitive, discretionary judgment about what justice requires.(60)
When it comes to lawyers other than prosecutors, however, the Dominant View insists on categorical rules of zeal, confidentiality, and disinterestedness that drastically and wrongly pare back the scope of discretionary judgment. "The revolt against formalism in legal thought has carried the day in nearly every legal field other than that of lawyering itself.... Alone, the modern jurisprudence of professional responsibility presupposes or prescribes categorical judgment."(61) That is the jurisprudential mistake Simon means to criticize. In the earlier article, the target is institutions and practices that alienate law from more fundamental human ends; the target now is categorical, rule-bound thinking on the part of lawyers. And the alternative is not non-professional advocacy, with its moral dialogue of lawyer and client; instead, it is a Contextual View of ethics whose "basic maxim is that the lawyer should take such actions as, considering the relevant circumstances of the particular case, seem likely to promote justice,"(62) that is, promote legal merit. Where The Ideology of Advocacy ends in a flight from legal professionalism, The Practice of Justice represents a flight toward it. As Simon puts it, "Before we ask whether a good lawyer can be a good person, we should ask whether a person who follows the Dominant View is a good lawyer."(63) The answer, he believes, is no.
Nowhere is the change in outlook more striking than in Simon's thoughts, then and now, about institutionalizing ethics. The Ideology of Advocacy harshly criticizes the idea that problems of legal ethics are for lawyers alone to address. Simon aims at nothing less than a "proposal to abolish legal professionalism,"(64) and ends the essay apocalyptically, by celebrating the death of the legal profession.(65) In The Practice of Justice, he seems perfectly comfortable leaving ethical standard setting to the profession.(66) Lawyers may have no special insight into morality, but they are experts in what it takes to promote justice, understood as legal merit.
II. CHARITY TOWARD THE LAW
If Simon is right, every conflict between the obligations of a lawyer's role and ordinary morality can be redescribed as a conflict between legal norms; if not, then the law/law picture can't supplant the law/morals picture as he claims. How does Simon demonstrate that law/morals conflicts can always be redescribed as law/law conflicts?
At the bottom of his argument lies the familiar jurisprudential distinction between legal positivism and its alternative, which Simon terms "Substantivism" rather than "natural law." According to Substantivism, law is defined by substantive principles with moral content rather than by jurisdictional criteria.(67) Simon expends a good deal of effort arguing that the Substantive conception of law is widely accepted in our society. This is important, because Substantivism is crucial to Simon's project, in two overlapping ways. First, a Substantivist believes that law is suffused with moral principles. That is why moral values can generally be translated into legal values, and thus why law/morals conflicts can be transformed into law/law conflicts: "[F]or the radical Substantivist, ... all the grounds for commitment have been subsumed into law."(68) Second, Positivism promotes categorical judgment by eliminating from legal thinking all contextual factors other than the jurisdictional criteria that distinguish law from non-law.(69) Substantivism, in contrast, lends itself to contextual judgment: That is how lawyers can delve beneath formalistic statutory language to understand the substantive norms that apply in different cases and contexts.
Now if a lawyer confronted a genuine law/morals conflict--a situation in which that lawyer was legally obligated to do something morally wrong, or legally forbidden to do the morally right thing--then she might be morally required to disobey the law. In chapter four, Simon offers an argument in three steps aiming to show that this is impossible, from which it follows that lawyers do not confront genuine law/morals conflicts.(70)
Step 1: "Any argument for disobedience against a particular command would also be an argument that the command was an incorrect interpretation of the law."(71) Step 2: In that case, nullifying the law by noncompliance does not really count as disobedience. Instead, it counts as obedience to the law under its proper interpretation.(72) Step 3: Thus, no one is ever morally required to disobey the law.(73)
From this it follows that the set of genuine law/morals conflicts is empty.
The argument is formally valid, but it turns on the surprising Step 1. Why think that any argument for disobedience against a particular command would also be an argument that the command was an incorrect interpretation of the law? This proposition is central to Simon's jurisprudence. It resembles the so-called "principle of charity" in linguistics, which states that if your translation of a foreigner's statements implies that the foreigner has crazy beliefs, then you should assume that the fault lies in your translation.(74) Simon claims that if your interpretation of the law makes it morally unacceptable, the fault lies with your interpretation, not with the law.
This is a very Dworkinian argument, and it comes as no surprise that Simon claims Dworkin as one of two major influences on his argument (the other is Critical Legal Studies).(75) Dworkin defends a theory of interpretation that is very similar to the principle of charity: On this theory, interpreting a practice, or a work of art, or a law requires us to make it the best that it can possibly be.(76) Given two interpretations of a poem, on one of which the ending makes sense and on the other of which the ending was a mistake, the former is better. And given two interpretations of a statute, on one of which the statute is a reasonable solution to a societal problem, and on the other of which it is unconstitutional caprice on the part of Congress, the former is better. Perhaps Dworkin's theory of interpretation provides the argument Simon needs for Step 1.
Charity has limits, however, in law, art, and linguistics as in daily life. Some people do have crazy beliefs, not just poorly translated ones: The linguist may have happened on a delusional native informant. Some poems have endings that don't work. And some laws are morally unacceptable under any interpretation that does not do violence to the text. Even good laws occasionally yield unjust outcomes in exceptional cases.
Indeed, unlike Simon, Dworkin recognizes that charity has its limits: He asks that we make the law the best that it can be, acknowledging that any interpretation, however charitable, must fit the available legal materials.(77) For Dworkin, then, it is not true that "[a]ny argument for disobedience against a particular command would also be an argument that the command was an incorrect interpretation of the law."(78)
Simon appears to recognize that his version of the charity argument is too strong; but it seems to me that he waffles unacceptably in this recognition. He is careful to attribute the unqualified version of the argument to "the Substantivist,"(79) not to himself, and he adds that "neither Positivism nor Substantivism, in the uncompromising, full-strength versions of each, is plausible."(80) Thus, he seems to distance himself from Substantivism. But all his other arguments place him squarely on the Substantivist side. As we have seen, Simon believes that Positivists favor categorical judgments, whereas Substantivism is more hospitable to contextual judgment--and contextualism is Simon's view. The American civil rights tradition, which Simon rightly describes as "glorious," has been "animated by Substantivist ideals of legality."(81) On the other hand, the role-morality theory he opposes bears "a strong affinity ... [to] Positivism."(82) And, most importantly for present purposes, "[c]onflicts the Positivist defines as law-versus-morality take the form, for the Substantivist, of legal norms in tension with each other."(83) The latter is Simon's position as well.
In fact, precisely to the extent that Simon deviates from pure Substantivism, his law/law formulation of legal ethics fails on its own terms. Insofar as Positivism is true and Substantivism is false, law can conflict with morality. For in that case norms can count as law by virtue of their jurisdictional pedigree, even if they are inconsistent with any acceptable moral principle. Whatever Positivist residue remains after Substantively acceptable laws have been distilled away is by definition untranslatable into moral terms. It follows, then, that Simon cannot allow any Positivist residue to remain. But we have also seen that pure Substantivism demands an unacceptably strong version of charity-based legal interpretation, in which, as Simon puts it, "law is prima facie just by definition."(84)
This dilemma is not just a minor or technical glitch in Simon's argument. It arises precisely because Simon thinks that law/morals conflicts can always be turned into law/law conflicts, and thus that every moral principle finds support in the law. Law just isn't that good.
III. LEGAL AUTHORITY AS MORAL AUTHORITY: A CRITIQUE
All this becomes clearer when we see how Simon effects the translation from law/morals to law/law in practice. Consider two of his examples.
In the film The Verdict, the lawyer played by Paul Newman steals a phone bill from someone's mailbox because that is the only way he can find a crucial witness whose location his adversaries have wrongfully concealed.(85) Stealing the phone bill is a crime under both state and federal law. Assuming that stealing it is the morally correct thing to do, does the lawyer's action represent a law/morals conflict? According to Simon, "That would be a crude judgment."(86) Perhaps the state and federal governments have a necessity defense to criminal charges that would cover this situation. If not, courts might imply one. If some statute explicitly precludes the necessity defense, the statute might be ambiguous or unconstitutional. Suppose, however, that at last
we reach the point where the lawyer is certain that the Positive law forbids taking the phone bill.... Even at this point, the lawyer may view the matter ... as a misinterpretation of the law on the part of constituted authority. The lawyer might simply believe that these actors would be wrong in their judgments that taking the phone bill under these circumstances would be criminal.(87)
The lawyer might believe that; but does he in fact believe it? And if he does believe it, is he correct? Each of these questions points to a problem with Simon's argument.
The first is that a lawyer can reframe a law/morals conflict as a law/law conflict only if he believes that the moral prong of the choice represents the law. Even if some legal argument could be devised to show it, it does not follow that the lawyer making the decision accepts that argument. He may think that taking the phone bill is the right thing to do, and he may wish that stealing it was legal, but as a lawyer he knows that simply wishing something is legal doesn't make it legal.
The point is that lawyers' ideas about how to identify the law are largely independent of their ideas about morality. This fact underlies one of Simon's own arguments on behalf of the law/law characterization: that "the analytical methods and sources of legal argument ... are typically thought to be more structured and grounded than popular moral discourse."(88) If legal reasoning simply tracked moral reasoning down the line, there could be no such methodological difference between the law/morals and law/law views; indeed, there would be no difference of any kind between them. So Simon's own position presupposes that a lawyer's belief about what is legally proper can differ from her belief about what is morally proper, in at least some cases.
In the present example, it seems entirely likely that a lawyer would regard stealing the phone bill as a crime because (a) for good reasons, federal and state statutes criminalize it, and (b) neither jurisdiction recognizes any defense that would apply on these facts, and (c) a state statute specifically precludes the necessity defense, and (d) all the relevant statutes are unambiguous, and (e) no state or federal decisions come anywhere near suggesting that any of these statutes is unconstitutional, either on its face or on these facts, and (f) the lawyer can think of no good reason why courts should find the statutes unconstitutional. Propositions (a) through (f) may very well belong to our lawyer's working theory of legal validity; it would be rather surprising if they did not. And, if they do, the lawyer confronts a law-versus-morality question (not a law-versus-law question): "Should I commit a crime to prevent injustice?"
Simon overlooks this problem because he asks the wrong question. For him, the question seems to be, "Can the lawyer devise some legal argument that reaches the morally best solution?" He believes that the answer is yes, and he may be fight. But the proper question is not whether some interpretation of the law yields the morally best solution; it is whether the lawyer's interpretation of the law yields the morally best solution. Only then can the lawyer reframe the law/morals conflict as a law/law conflict. A theory of legal ethics that aims to guide lawyers in their own deliberations must be first-personal: It works off of the lawyer's beliefs about law and morality, not someone else's.
But legal ethics is not only first-personal, because a lawyer may wrongly believe that the law reflects his moral position. Even if the lawyer in fact believes that a misinterpretation of the law is bringing about the wrong moral result, the question whether there is a plausible basis for his belief exposes a second problem with Simon's approach. Consider the following example. Simon poses a case in which the client is a welfare recipient who faces a large reduction in her grant because she is living rent-free with her cousin. The loss of income would be catastrophic to the client. Should the lawyer recommend a token payment of, say, five dollars a month to the cousin to evade the regulations?(89)
One might think that the answer is obviously yes unless the regulations prohibit such strategic planning. But Simon is rightly uncomfortable with loophole lawyering designed to evade legitimate regulatory schemes, and so he would like the lawyer to analyze the purpose of the regulation to see if it is legitimate. His argument is that when a legislative purpose is uncertain or otherwise problematic, lawyers may treat regulations formalistically and engage in loophole lawyering; but when the legislative purpose is clear and just, lawyers should consider themselves bound by those purposes.(90)
As Simon analyzes it, the legislative purpose in the present example is unclear. But, he continues, "Even if the lawyer found stronger indication of a purpose to preclude strategic planning, she might be justified in disregarding it if she thought ... it endangers fundamental values."(91) This conclusion is perfectly intelligible on law/morals terms: The regulation applies to the client's case, but acceding to it would lead to an unjust outcome, depriving the client of basic necessities, so the lawyer is morally justified in disregarding it.
For Simon, however, the point is different: "The lawyer might decide that the claimant's interest in a minimally adequate income is a value of exceptional legal importance...."(92) Why? To make this claim, after all, Simon has huge hurdles to overcome. American law has never been hospitable to welfare rights. Welfare has never provided most recipients with a minimally adequate income, and our legal culture cheerfully tolerates the greatest income inequalities of any modern industrial society. An impartial legal anthropologist comparing America to other industrialized nations would, I think it is fair to say, conclude that under American law this client's interests are of entirely marginal legal importance.
Simon says that "there is substantial authority"(93) for his proposition about the exceptional legal importance of welfare (elsewhere he speaks of the "stronger constitutional status [of] ... welfare interests"(94)), but the flimsy authority he cites shows the opposite, and he seems to know it.(95) When he writes that Dandridge v. Williams "is not inconsistent with the practice of giving welfare interests sufficient weight,"(96) while King v. Smith "might be understood as tacitly"(97) supporting welfare rights, we recognize the familiar phraseology of a desperate briefwriter trying to make the best out of the Yarborough the law has dealt him.
Here, as in the phone bill example, Simon adopts a litigator's approach to legal ethics. To eliminate law/morality conflicts, he wants lawyers to ask, "Can I find legal authority to support my moral claim?" without worrying about whether the legal authority is plausible. But this stance seems inappropriate to ethics. Admittedly, if Simon's imaginary lawyer personally believes that having a minimally adequate income is a value of exceptional legal importance, she will regard the conflict between the welfare regulations and the client's interest as a law/law conflict. That proves nothing, however. Consider an analogy. Suppose that for some eccentric reason she believes that having a minimally adequate income is a value of exceptional scientific importance. Then she will think she faces a law/science conflict; but thinking it so doesn't make it so. As I stated earlier, legal ethics isn't only a matter of a lawyer's first-personal belief: The belief needs some plausible basis.
Apparently, Simon thinks you can find anything you want in the law, as long as some moral principle supports it. Here he departs from Dworkin and moves to his other chief intellectual influence, Critical Legal Studies (CLS). Dworkin believes (implausibly, I think) that there are almost always right answers even in hard cases.(98) CLS maintains (implausibly, I think) that there are no right answers even in easy cases. That is because law consists of "a set of structured instabilities."(99) Although Simon does not explain what he means by this phrase, I take it to be his way of framing the familiar CLS argument that bodies of legal doctrine are organized around principles and counterprinciples, which check each other and whose conflict reflects contradictions within social life itself,(100) This dynamic tension of principles and counterprinciples implies that all moral principles informing our alternative visions of society will be reflected in the law.
But then how does a lawyer decide which of the contrary principles in the law to appeal to? In the welfare case, the lawyer is convinced that her client has a moral right to a minimally adequate income, and that is what impels her to find a welfare rights position among the counterprinciples of constitutional law. If she were convinced that her client had no moral right to evade regulations, so that strategic planning would be a form of cheating, she could easily find legal principles to support that view as well. Apparently, she draws on whichever principle supports her antecedent moral convictions.
In other words, it is really moral convictions rather than legal persuasions that propel the inquiry. Far from demonstrating that putatively moral conflicts are really legal conflicts, Simon's examples come very near to showing the opposite. Instead of replacing the problem of role morality, Simon turns out to be restating it.
Let me summarize the lessons of these examples. Simon means to offer a working theory of legal ethics--a set of maxims that lawyers can actually use to address issues as they arise in practice,(101) Because Simon's maxims are meant to be used by lawyers, his theory must be first-personal or, as philosophers sometimes say, agent-relative: A lawyer's attempt to translate moral conflicts into legal conflicts must begin with the lawyer's own beliefs about morality and law. In the phone bill example, Simon's theory fails the agent-relativity condition. The fact that someone might concoct a legal argument to support doing the right thing does not mean that it is the lawyer's legal argument.
At the same time, however, the theory cannot be entirely first-personal. A lawyer's beliefs about the law are not tree merely because she believes them. So in addition to the agent-relativity condition, a working theory of legal ethics must satisfy a plausibility condition--roughly, that the lawyer's belief about the law must not be frivolous. If the regulation in the welfare example explicitly precludes nominal rent payments for strategic purposes, an argument to the contrary based on the proposition that welfare rights are extraordinarily important in American law would be ripe for Rule 11 sanctions. Interestingly, one scholar sympathetic to CLS ideas about the indeterminacy of law expresses skepticism that any distinction exists between frivolous and nonfrivolous legal positions.(102) But I think this is an error; whether or not legal questions have right answers, they do have wrong answers.
Finally, we see that Simon's effort to replace ordinary moral reflection with the professional discourse of lawyers about law does not succeed. It doesn't succeed because it cannot succeed: Without moral reflection, a lawyer is helpless to know where to look in the law for principles, because principles are everywhere.
IV. THE PLACE OF EMOTION IN LEGAL ETHICS
How easy is it to use Simon's maxims in practice? Consider one of his other examples. This involves a tax lawyer advising a hotel manager to take a reduced salary in return for free residence in the hotel, in order to reduce his tax obligation. Should the lawyer offer this advice? As in the welfare example, Simon asks the lawyer to analyze the legislative purpose in exempting lodging from taxable income when it is required as a condition of employment.(103) To convey some sense of how easy Simon's analysis is to apply in practice, an extended quotation is necessary:
Suppose the lawyer interprets this provision to express a belief that it is unfair to tax such in-kind benefits at full market value because they are probably worth much less to the employee, since she associates them with work and she cannot exchange them for things she may want more, as she could with cash. The in-kind benefits probably have some value to the employee, but to estimate this value in each case would be administratively impractical, and no plausible general presumption would be accurate in a large enough percentage of cases to warrant its use. Thus, on this theory, the statute exempts the income because that is the fairest practical approach.(104)
On the basis of this rather strenuous argument, "the lawyer decides that it would not be consistent with this statutory purpose to apply the exemption to arrangements the taxpayer has initiated."(105) But that doesn't end the matter: The lawyer still needs to examine what the courts have done, because her "theory of institutional competence suggests that the court's decisions are more authoritative than her own views on the substantive merits."(106) Once she discovers that the courts have sided with taxpayers in cases like this, she now inclines to disregard her own previous misgivings and recommend the restructuring to the client.
At this point, Simon's readers may be asking themselves nervously whether they even have a theory of institutional competence. Such readers will be chagrined when they read in the next sentence that "the analysis is not yet complete,"(107) The lawyer still must consider why the courts sided with the taxpayers in these decisions. Was it because the courts agreed with the taxpayers on the merits, or was it because they concluded that it would be too expensive to scrutinize every case in order to learn whether the taxpayer or the employer had initiated the in-kind compensation arrangement? Some lawyers might think that this doesn't much matter, because they can surely recommend any arrangement that courts have explicitly approved. But they would be wrong. Simon counsels: "At this point the lawyer should review her theory of institutional competence."(108) If she concludes that the courts are worried only about the expense of a case-by-case inquiry, the lawyer should realize that she has no difficulty in knowing whether her client or the employer has initiated the in-kind compensation arrangement. Because she is better situated than the courts, and the courts decided in behalf of taxpayers only because they are badly situated, she should decline to advise the arrangement.
My reaction to this analysis, seconded by my law students, is that it is exceedingly professorial. The argument is not exactly higher calculus, but it is certainly intricate enough that a tax policy seminar might easily expend a classroom hour or two arriving at it. Without the professor in the room, they might never arrive at it: In my experience, statutory analysis is law students' and lawyers' weakest skill.
I don't mean to suggest that there is anything wrong with the analysis. On the contrary, it seems exactly the way that a sophisticated tax policy analyst should think, and Simon's treatment of the various loophole lawyering cases like this one and the welfare example illustrates the virtues of his theory perfectly: He provides a basis for distinguishing superficially similar cases even after moral intuitions have run out. But I have significant doubts about whether an analysis so deeply infused with the smell of the lamp is reasonable to expect of a harried tax lawyer on April 12.
This example is not exceptional: Simon's analysis of the welfare case discussed earlier, and an extended labor law example,(109) are equally demanding. The reason in each case is the same. The Contextual View demands that lawyers embed each case in a purposive analysis of legal standards as well as a theory of which institutions are most competent to make decisions on the merits. These analyses rest in turn on a background theory of which legal values are most fundamental. Purposive analysis requires a sophisticated understanding of public policy and what goes into its :making; a theory of institutional competence requires a political scientist's appreciation of institutional history and capture; and a theory of fundamental values presupposes a background in political and constitutional theory.
This is Simon at his most Dworkinian, in that the interpretation of legal standards turns out to presuppose background views about difficult questions of political theory into which the lawyer must weave the legal standard in the most coherent way possible.(110) Simon's description of how an :imaginary lawyer would approach his examples calls to mind Dworkin's depiction of how Hercules, his "imaginary judge of superhuman intellectual power and patience,"(111) would decide a case on emotional damages, sorting through half a dozen possible justifications and evaluating each for its coherence with other law and political values.(112)
The problem in both cases is the same: We are not Hercules, and it is unreasonable to take Hercules as the ideal toward which we aspire. It is unreasonable to expect lawyers to have a professor's facility with abstractions (let alone Hercules' facility) or a professor's leisure for reflection. It is unreasonable to expect everyone to be as smart as Simon or Dworkin. We are creatures of minimal or, as economists say, bounded rationality, unable to handle tasks of great computational complexity in real time.(113) Hence arises what might be called the "exhaustingness objection"--the worry that analysis of the kind Simon and Dworkin have in mind places excessive cognitive demands on lawyers and judges.
Dworkin thinks this objection misses the point of the Hercules myth, which is not to fault real judges for not being Hercules, but to reveal the hidden structure of the kind of judgments real judges make.(114) However, Dworkin's response begs the question of whether models of rationality presupposing vast cognitive powers reveal the hidden structure of anything at all.(115)
There are excellent reasons to think that the answer is no. The trouble with making Hercules the model of legal justification is that we are then forced to deny that the quick and dirty procedures real lawyers use are rational. Ironically, Dworkin's position leads to the cynical view that real-life judicial decisions are the product of irrational prejudices or whatever the judge ate for breakfast--conclusions Dworkin completely rejects. Moreover, this cynical version of realism would actually make it harder to predict official behavior in the real world, because we could not do it by attributing reasoning to the judge. Finally, we should acknowledge that it would be irrational for a real person even to try to reason as Hercules reasons; given our limited cognitive resources, there are better ways to expend them.(116)
Admittedly, Simon does not require lawyers to be Hercules, and the analyses he presents in his examples do not require superhuman cognitive capacity. But they still strike me as too strenuous for ordinary decisionmaking by ordinary lawyers. Simon seems to agree that bounded rationality makes it impossible for lawyers facing deadlines to explore ethical complexities in the way that the Contextual View recommends. But he has a reply. He argues that time and resource constraints are one more contextual factor the lawyer should take into account; and when the lawyer decides that time and resources permit only an incomplete analysis, the lawyer will fall back on "presumptive responses to broad categories of situations"(117)--in a word, she will fall back on rules.
This makes good sense, but it raises the natural question of what rules Simon has in mind. Unfortunately, Simon does not try to answer this question. At one point, he suggests that lawyers and clients could contract out of our "current low-commitment default rules" such as confidentiality, agreeing instead to high-commitment rules such as full disclosure of material information to bargaining partners of one's client.(118) Recall that "high-commitment ethics" is Simon's synonym for the Contextual View; this suggests that the default rules he has in mind might be quite different from current ethics rules. Elsewhere, however, he speaks of a "residual background presumption that private conduct that does not offend public purposes (or private rights) is permissible,"(119) which suggests defaulting to the libertarian position that you can do anything on behalf of a client that is not unlawful. Beyond these two remarks, both appearing in discussions of other topics, he has nothing to say.
Simon's silence on the issue of default rules highlights a drawback of the Contextual View, namely that it offers no purchase in figuring out what the default rules should be: It cannot, precisely because it insists that context is everything. But even if Simon were able to derive a plausible set of default rules, the exhaustingness objection would still apply in cases where the lawyer does not default.
At the same time that Simon raises the bar, cognitively speaking, by demanding that lawyers engage with fair frequency in an extremely demanding form of legal analysis, he also insists that it is indeed a legal analysis of justice that he wants, not a response based on personal morality. As I mentioned earlier, that is because Simon supposes that legal reasoning provides firmer guidance to lawyers than do appeals to conscience; lawyers know how to tackle a legal problem, but they may be completely at sea about how to address the same issue framed as a moral dilemma.(120) For reasons I will now explain, I think the opposite is true.
Simon would be correct if moral thought consists of nothing but philosophical argument about the right and the good. Philosophical argument is endless, and it reinvents itself endlessly. And, contrary to the hopes of the 1970s, even the supersophisticated techniques of analytic philosophy have never established anything except that other philosophers' arguments don't work. A few minutes spent glancing through the articles in any of the leading philosophy journals, with their cramped, obsessive epicycles on philosophers' objections to each other, should convince anyone of that. But, Simon to the contrary, the specialized techniques of legal reasoning are no better. We have already seen that the kind of legal analysis Simon favors cannot even begin without a prior moral stance to orient it in an endless field of possibilities.(121)
I have come to believe that no form of reason-giving is sufficient to settle moral questions. Where can a moral stance come from, then, if argument alone is insufficient to determine it? The answer must be that moral reasoning consists of something more than argument. That something is our emotional response--what the eighteenth century philosophers termed our moral sentiments. Framing questions in explicitly moral terms enjoys one enormous advantage over tackling them as problems in legal or institutional analysis: We have emotional reactions to moral questions.
At first blush, this may seem like a disadvantage, because we all know from vivid experience how emotion can cloud our ability to think clearly. But the hackneyed opposition of reason to passion is too simplistic and too dogmatic. It overlooks another aspect of emotions, one that philosophers, scientists, and economists are gradually coming to appreciate: The emotions serve an important cognitive function--so important, in fact, that people seriously lacking in emotion are scarcely able to make their way through the world as rational beings.
Emotions, as distinct from moods, are typically about something. I am indignant at the way you were treated; I am delighted with the gift you gave me. And emotions are a source of information about their objects: Sometimes we feel irritated at someone without being able to put our finger on why until later, when we realize that there were good reasons to be irritated. But over and above their informative function, the emotions play an indispensable role in cognition: In the words of Ronald de Sousa, "emotions are among the mechanisms that control the crucial factor of salience among what would otherwise be an unmanageable plethora of objects of attention, interpretations, and strategies of inference and conduct."(122)
De Sousa's point is this: Although one of our persistent cognitive problems is knowing too little, an equally grave problem is knowing too much. At any moment, there are enormous numbers of memories we can retrieve, things we can think about, perceptions we can respond to, inferences we can draw, and lines of reasoning we can pursue. Reason alone cannot winnow out the possibilities, because the winnowing has to take place before reasoning begins. Rationalism runs the danger of falling into infinite regress (what tells reason what to tell us?).(123) That's where emotion comes in: As Herbert
Simon notes, "emotion has particular importance because of its function of selecting particular things in our environment as the focus of our attention."(124) Patients whose brain lesions have destroyed certain portions of their prefrontal cortexes do perfectly well on intelligence tests, but lose most of their emotional range and as a result become so easily sidetracked when they tackle real-life tasks that they are completely dysfunctional.(125) As one brain researcher summarizes the problem:
[T]he absence of emotion and feeling is no less damaging [than excess emotion and] no less capable of compromising the rationality that makes us distinctively human and allows us to decide in consonance with a sense of personal future, social convention, and moral principle.... At their best, feelings point us in the proper direction, take us to the appropriate place in a decision-making space, where we may put the instruments of logic to good use.(126)
Actually, there is a back-and-forth dialectic between emotions and reasoned judgments. To identify my unpleasant emotion as indignation, I must recognize that there is something at which I am indignant; to identify a situation as unjust, I am guided by my feeling of indignation.(127) A large part of moral education consists in learning to experience the emotions appropriate to situations in which we find ourselves. Just as judgments can be better or worse, feelings can be more apt or less apt. Feeling turns out to be an indispensable and teachable cognitive skill. When we become good at it, our emotions are not just a complement to moral reasoning, they are a component of it; that is why the classical opposition of reason and passion is a misleading half-truth.
Let me be clear about what I am not arguing. I am not arguing that moral judgments are nothing but gut reactions--the so-called emotivist theory of ethics. I am arguing only that emotion is essential to moral reasoning, and that is so whether emotivism or some more rationalist theory of morals is correct. Nor am I repeating Hume's famous assertion that reason is and ought to be the slave of the passions.(128) Hume meant by this that reason alone never moves us--it affects our beliefs, not our desires. I am arguing that reason unaided by emotion will not even lead us to the right beliefs. Finally, I am not denying that emotionalism can make us stupid; I am arguing only that without emotion we will never be very smart. The point of all these observations is straightforward: Morality is a surer guide to action than legal reasoning, because morality taps into our moral sentiments, which have been cultivated over a lifetime.
I don't mean to overdraw the contrast between legal and moral reasoning. The legal realists believed that legal reasoning also taps into moral sentiments, despite its rationalist veneer; and to an extent that is doubtless tree. But, as Simon emphasizes, legal reasoning is also a discrete set of specialized techniques. Exactly to the extent that legal reasoning is a self-contained collection of argumentative techniques, it drifts away from the moral emotions, one of our indispensable cognitive resources. In this way, Simon's theory simultaneously makes the lawyer's ethical task more challenging, and diminishes the resources lawyers have available to meet the challenge.
What, after all, are the "analytical methods and sources of legal argument"(129) that Simon distinguishes from lay moral discourse? There are, of course, the methods of legal research. There is knowing the hierarchy of legal authority. There are skills such as issue-spotting, reading cases widely and narrowly, and extracting a rule from a line of cases. There are interpretive tricks like inferring what a statute means from what it fails to say as well as what it does say, or from the way its wording differs from the wording of related and neighboring statutes, or from fine points of its syntax, or from the fact that if it meant X the legislature would have phrased it differently. There is facility with a small repertoire of potted "policy arguments." There is a smattering of economics and a dollop of lawyer's history. There is knowledge of certain peculiarities of the trade, for example, that The Federalist Papers counts as an authoritative source of constitutional law. That's about it.
My point is not to denigrate these tools, although that can be done.(130) Rather, my point is that each of them is designed to steer us away from thinking about issues in emotional terms--to steer us from "hot" questions like "Is this unjust?" to "cool" questions like "Does the statute include this among the enumerated grounds for relief?." Simon's suggestion that these modest tools are a lawyer's surest guide through difficult ethical judgments is profoundly implausible.
All this becomes clearer when we return to Simon's examples. He believes that a Substantive analysis of legal values shows why it is proper for the lawyer in The Verdict to steal the phone bill, and the welfare lawyer to advise her client to make nominal rent payments to evade regulations. As we have seen, these arguments are unconvincing. Even if they were more convincing, however, the legal analysis would remain parasitic on our moral responses. These moral responses are fundamentally emotional: We feel outrage at concealing the witness in The Verdict, or impoverishing the welfare client. Reflecting on our outrage, we find these actions unjust, in the everyday sense of the word where justice is not the same as legal merit. Because we find them unjust, we seek some construction of the law to support purloining the phone bill or counseling the welfare client to pay her cousin five dollars a month rent. If we find no such construction, we confront a moral dilemma of disobedience. We won't find our way out of the dilemma by insisting that by definition the law allows us to do what we know is right; and we won't find our way into the dilemma if we never feel outraged. The latter is at least as important as the former.
In the end, I believe that Simon's law-centered theory reposes too much faith in law and too much faith in the unaided power of argument. That is why the choice between law-centered and morality-centered theories is not merely an arcane academic debate about meta-theory. It concerns not only where we turn to solve our problems, but also where we turn to find them.
(1.) WILLIAM H. SIMON, THE PRACTICE OF JUSTICE: A THEORY OF LAWYERS' ETHICS 1 (1998). Hereinafter, all references to The Practice of Justice will be made by citation to page numbers without additional identification.
(2.) OLIVER WENDELL HOLMES, A Provisional Adieu: Remarks at a Tavern Club Dinner, November 14, 1902, in THE OCCASIONAL SPEECHES OF JUSTICE OLIVER WENDELL HOLMES 150, 152 (Mark DeWolfe Howe ed., 1962).
(3.) OLIVER WENDELL HOLMES, The Profession of the Law: Conclusion of a Lecture Delivered to Undergraduates of Harvard University, on February 17, 1886, in OCCASIONAL SPEECHES, supra note 2, at 28, 28.
(4.) P. 24.
(5.) P. 138.
(6.) P. 138.
(7.) DAVID LUBAN, LAWYERS AND JUSTICE: AN ETHICAL STUDY (1988).
(8.) See, e.g., pp. 243, 248.
(9.) P. 205. My own term is "moral activism." LUBAN, supra note 7, at xxii.
(10.) P. 248.
(11.) I have already published comments on two chapters of The Practice of Justice when they appeared in journal form. See generally David Luban, Are Criminal Defenders Different?, 91 MICH. L. REV. 1729 (1993) (commenting on William H. Simon, The Ethics of Criminal Defense, 91 MICH. L. REV. 1703 (1993) (now chapter 7 of The Practice of Justice)); David Luban, Legal Ideals and Moral Obligations: A Comment on Simon, 38 WM. & MARY L. REV. 255 (1996) (commenting on William H. Simon, Should Lawyers Obey the Law?, 38 WM. & MARY L. REV. 217 (1996) (now chapter 4 of The Practice of Justice)) [hereinafter Luban, Legal Ideals and Moral Obligations]. In the present essay, I am developing some of the themes in the second of my earlier papers.
(12.) P. 247.
(13.) ROBERTO MANGABEIRA UNGER, THE CRITICAL LEGAL STUDIES MOVEMENT 60 (1986). Simon acknowledges Dworkin and Critical Legal Studies as the major inspirations of his jurisprudence. See p. 247.
(14.) See p. 18. For similar comments by Simon, see p. 102.
(15.) In this essay, I focus on the lawyer's moral sentiments as a cognitive resource, and omit discussion of participation in moral communities. I do so for reasons of space, not because I think the latter is less important than the former. For discussion of the communal nature of moral deliberation, and a critique of Simon's individualistic approach, see Luban, Legal Ideals and Moral Obligations, supra note 11, at 265-67. See also Thomas L. Shaffer, Should a Christian Lawyer Sign Up for Simon's Practice of Justice?, 51 STAN. L. REV. 903 (1999) (contrasting Simon's analysis of justice as cultural and individualistic with a countercultural and communal Biblical justice).
(16.) Charles Fried, The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation, 85 YALE L.J. 1060, 1060 (1976).
(20.) Id. at 1061.
(21.) See Richard Wasserstrom, Lawyers as Professionals: Some Moral Issues, 5 HUM. RTS. 1 (1975).
(22.) Id. at 6.
(23.) Id. at 2.
(24.) Id. at 3.
(25.) Fried argues that a good lawyer can be a good person, because a lawyer, like a friend, is entitled to lavish care on one individual to the exclusion of others, and lavishing care on someone is good. Fried's defense of traditional law practice attracted numerous criticisms. For a summary and references to some of the most important objections to Fried's argument, see DAVID LUBAN, THE ETHICS OF LAWYERS at xxi (1994).
(26.) See DAVID MELLINKOFF, THE CONSCIENCE OF A LAWYER (1973) for a discussion of the nineteenth-century debates.
(27.) Scholars will point to Charles P. Curtis, The Ethics of Advocacy, 4 STAN. L. REV. 3 (1951), and some undeservedly forgotten papers and speeches by Lon Fuller. See David Luban, Rediscovering Fuller's Legal Ethics, 11 GEO. J. LEGAL ETHICS (1998) (forthcoming 1999), reprinted in REDISCOVERING FULLER (Wibren van den Burg & Willem Witteween eds., forthcoming 1999). But these pieces were seldom discussed and remain little known.
(28.) Gerald J. Postema, Moral Responsibility in Professional Ethics, 55 N.Y.U.L. REV. 63 (1980).
(29.) See Murray L. Schwartz, The Professionalism and Accountability of Lawyers, 66 CAL. L. REV. 669 (1978).
(30.) ALAN H. GOLDMAN, THE MORAL FOUNDATIONS OF PROFESSIONAL ETHICS (1980). Like Postema, supra note 28, this work by Goldman did not appear in print until 1980.
(31.) MARVIN E. FRANKEL, PARTISAN JUSTICE (1980). The year 1978 also saw the publication of Geoffrey Hazard's Ethics in the Practice of Law, still one of the best books ever written on legal ethics, although not part of the tradition of scholarship I am reviewing here.
(32.) William H. Simon, The Ideology of Advocacy: Procedural Justice and Professional Ethics, 1978 WIS. L. REV. 29.
(33.) See id. at 33.
(34.) See id. at 113-19.
(35.) Id. at 131.
(37.) Id. at 132.
(38.) Id. at 133.
(39.) David Luban, Calming the Hearse Horse: A Philosophical Research Program for Legal Ethics, 40 MD. L. REV. 451 (1981); David Luban, The Adversary System Excuse, in THE GOOD LAWYER: LAWYERS' ROLES AND LAWYERS' ETHICS 83 (David Luban ed., 1984); and David Luban, Paternalism and the Legal Profession, 1981 WIS. L. REV. 454 (1981) were all written in 1980, and the influence of these authors is apparent. (The influence is less apparent, but I can attest it was there, in my fourth legal ethics paper of 1980. See David Luban, Professional Ethics: A New Code for Lawyers?, HASTINGS CENTER REP., June 1980, at 11.) Calming the Hearse Horse, supra, originated as an issue-survey for the working group that produced THE GOOD LAWYER, supra--a group whose participants included Frankel, Postema, Schwartz, Simon, and Wasserstrom.
(40.) See Simon, supra note 32, at 130-44.
(41.) William H. Simon, Ethical Discretion in Lawyering, 101 HARV. L. REV. 1083 (1988).
(42.) P. 7.
(43.) Pp. 15-18.
(44.) Simon, supra note 32, at 131.
(45.) P. 17.
(46.) See Simon, supra note 32, at 131.
(47.) "[P]ersonal values ... [are] moral commitments the individual makes." P. 16.
(48.) Stephen Holmes has coined a nice expression that describes Simon's error here: Holmes calls it "the fallacy of antonym substitution." STEPHEN HOLMES, THE ANATOMY OF ANTILIBERALISM 253 (1993). Antonym substituters "provide a false context of their own making, one that imparts a very different meaning to the principles being attacked." Id.
(49.) P. 17.
(50.) Simon writes: "I have not sought to engage the extreme skeptic who cannot see any reason to care about the moral appraisal of lawyer conduct." P. 11.
(51.) P. 17.
(52.) P. 17.
(53.) P. 17.
(54.) P. 102.
(55.) P. 102.
(56.) P. 100.
(57.) The Dominant View is not Simon's only target, however. He also rejects the Public Interest View, which maintains "that law should be applied in accordance with its purposes, and litigation should be conducted so as to promote informed resolution on the substantive merits." P. 8. However, he spends almost no time discussing or criticizing the Public Interest View, and in obvious ways it is actually congenial to Simon's own.
(58.) P. 11.
(59.) P. 10.
(60.) See p. 10. An elaboration of the prosecutor's duty to "do justice" that seems close in spirit to Simon's ideas is Fred C. Zacharias, Structuring the Ethics of Prosecutorial Trial Practice: Can Prosecutors Do Justice?, 44 VAND. L. REV. 45, 60-65 (1991); on the similarity to Simon's ideas, see id. at 64 n.90.
(61.) P. 3.
(62.) P. 9.
(63.) P. 17.
(64.) Simon, supra note 32, at 143.
(65.) See id. at 143-44.
(66.) See pp. 196-97, 202 (explaining that ethical standard setting could be accomplished by an inclusive bar association as well as by courts, legislatures, public regulatory agencies, and voluntary bar associations). In Ethical Discretion in Lawyering, Simon writes:
I now think that I was mistaken to argue in an earlier article [The Ideology of Advocacy] that the critique of conventional advocacy presented there required abandoning the lawyer's professional role. With that major qualification, however, the ethical approach defended in this Article is an elaboration of what I previously called "non-professional advocacy."
Simon, supra note 41, at 1084 n. 1 (citation omitted). If my interpretation of The Practice of Justice is accurate, Simon's approach is in reality very different from non-professional advocacy.
(67.) See p. 82.
(68.) P. 99.
(69.) See pp. 79-80.
(70.) The steps are my reconstruction of Simon's argument. He does not present the argument in this form.
(71.) P. 85.
(72.) See pp. 87-90 (discussing examples in which nullification represents itself as correct legal interpretation). Elsewhere I have expressed doubts about Simon's equation of nullification with interpretation. Even if motorists nullify a posted 55 m.p.h, speed limit by running at a steady 70 m.p.h., they are hardly likely to insist that "55 m.p.h." means "70 m.p.h." when properly interpreted. See Luban, Legal Ideals and Moral Obligations, supra note 11, at 263.
(73.) "Law is prima facie binding if it is prima facie just.... On a Substantive view, law is prima facie just by definition." P. 103.
(74.) See Luban, Legal Ideals and Moral Obligations, supra note 11, at 262. On the principle of charity, see DONALD DAVIDSON, INQUIRIES INTO TRUTH AND INTERPRETATION at xvii, 196-97 (1984) (arguing that the principle of charity "counsels us quite generally to prefer theories of interpretation that minimize disagreement") and WILLARD VAN ORMAN QUINE, WORD AND OBJECT 59 n.2 (1960) ("We select as designatum that individual which will make the largest possible number of ... statements true.") (quoting N.L. Wilson, Substances Without Substrata, 12 REV. METAPHYSICS 521, 532 (1959)).
(75.) See p. 247 ("My argument has been inspired by ... file legal liberalism of Ronald Dworkin.").
(76.) See RONALD DWORKIN, LAW'S EMPIRE 52-53 (1986).
(77.) For Dworkin's most explicit statement of this point, see Ronald Dworkin, "Natural" Law Revisited, 34 U. FLA. L. REV. 165, 169-70 (1982).
(78.) P. 85 (emphasis added).
(79.) P. 85.
(80.) P. 85. Elsewhere he writes: "My purpose here is less to defend Substantivism than to show that, even in its more radical forms, it pervades the mainstream of the legal culture...." P. 95.
(81.) P. 92.
(82.) P. 99. In this view, by the way, I believe that Simon is wrong. Conflicts between role morality and ordinary morality would exist even if no legal rules supported either side: A lawyer whose client has privately confessed to her that he committed a crime for which an innocent person is wrongly imprisoned would face a dilemma about confidentiality even if there were no official rules on the subject. See Luban, Legal Ideals and Moral Obligations, supra note 11, at 264-65.
(83.) P. 100.
(84.) P. 103.
(85.) See THE VERDICT (Twentieth Century Fox 1982).
(86.) P. 100.
(87.) P. 101.
(88.) P. 102.
(89.) See p. 148.
(90.) See pp. 145-46.
(91.) P. 148.
(92.) Pp. 148-49 (emphasis added).
(93.) P. 149.
(94.) P. 169.
(95.) Simon cites the federal poverty standards, three Supreme Court cases from 1968 and 1970 (one denying that welfare interests are fundamental, the other two of only analogical relevance), and a pair of vintage scholarly articles. See p. 234 n. 13.
(96.) P. 235 n.13; see also Dandridge v. Williams, 397 U.S. 471,484-85 (1970) (holding that welfare interests are not "fundamental" for equal protection purposes).
(97.) P. 235 n. 13; see also King v. Smith, 392 U.S. 309, 333 (1968) (holding that Alabama regulation barring award of Aid to Families with Dependent Children (AFDC) to anyone cohabiting with someone not her spouse violates the AFDC statute because the non-spouse has no obligation to support her children). King v. Smith is a long way from "generat[ing] a presumption against interpretations of legislative norms that would impair" welfare interests. P. 235 n. 13. For one thing, as Simon's word "tacitly" signals, the decision never mentions any such presumption. For another, the case is much more limited: The Court threw out an AFDC regulation designed to reduce promiscuity by welfare mothers because punitively reducing promiscuity is not an aim of the AFDC statute. Even read broadly, the case says only that a statute establishing a welfare program should not be interpreted in ways that impair welfare interests--hardly a surprising result, and one that is very far from asserting directly or indirectly that welfare interests are important in the overall scheme of American law.
(98.) See Ronald Dworkin, No Right Answer?, in LAW, MORALITY, AND SOCIETY: ESSAYS IN HONOUR OF H.L.A. HART 58 (P.M.S. Hacker & J. Raz eds., 1977). 99. P. 247.
(100.) See UNGER, supra note 13, at 60-61.
(101.) Simon offers three maxims to guide lawyers in their ethical deliberations. See pp. 13940 (offering a maxim of substance and procedure); pp. 144-46 (offering a maxim of purpose and form); pp. 149-51 (offering a maxim of broad and narrow framing).
(102.) See Sanford Levinson, Frivolous Cases: Do Lawyers Really Know Anything at All?, 24 OSGOODE HALL L.J. 353 (1986).
(103.) See pp. 146-47.
(104.) P. 147.
(105.) P. 147.
(106.) P. 147.
(107.) P. 147.
(108.) P. 147.
(109.) See pp. 151-56.
(110.) See, e.g., DWORKIN, supra note 76, at 176 (defining legislative integrity as "try[ing] to make the total set of laws morally coherent"); id. at 225 (identifying his own approach as "law as integrity"); RONALD DWORKIN, Hard Cases, in TAKING RIGHTS SERIOUSLY 81, 105-23 (1978) (explaining his method of adjudicating hard cases by embedding them in a unified moral-political theory).
(111.) DWORKIN, supra note 76, at 239.
(112.) See id. at 238-54.
(113.) I take the term "minimal rationality" from Christopher Cherniak. See CHRISTOPHER CHERNIAK, MINIMAL RATIONALITY 3 (1992) (defining "minimal rationality" as the limited rationality of an agent with "fixed limits on cognitive resources such as time and memory"). "Bounded rationality" is Herbert Simon's term. See, e.g., Herbert Simon, Alternative Visions of Rationality, in JUDGMENT AND DECISION MAKING: AN INTERDISCIPLINARY READER 97, 103-04 (Hal R. Arkes & Kenneth R. Hammond eds., 1986) (describing "bounded rationality" as a behavioral model that does not assume that decisionmakers contemplate all possible actions and consequences over an infinite time horizon, but instead assumes they focus on a few key factors or events). On the notion of computational complexity, see CHERNIAK, supra, at 78-81 (arguing that, practically, one cannot consider all solvable problems as feasible since some solvable problems cannot be solved in a practical amount of time because they would "require computations for relatively simple cases that would exceed the capabilities of an ideal computer having the resources of the entire known universe").
(114.) See DWORKIN, supra note 76, at 264-65.
(115.) To grasp just how fanciful the presupposition is, suppose that Hercules tries his hand at deciding whether an interpretation of the law is logically consistent--the first, minimal step toward deciding whether it is coherent. Give Hercules a science fiction supercomputer that can test each line of a truth table in the fraction of a nano-nanosecond it takes a ray of light to traverse the diameter of a proton, and let the supercomputer work on the problem from the Big Bang until now. If the legal system contains as few as 138 logically independent propositions, the computer would still be ten billion years away from a solution. See CHERNIAK, supra note 113, at 93. For the computation, see id. at 143 n. 13.
(116.) See id. at 15-16 ("Generally, there would be much more desirable ways for the creature to use its limited cognitive resources (such as those relating to immediate survival) than trying to ensure that every one of its actions is appropriate."). Chemiak's book convincingly demonstrates the baleful effects of excessively idealized theories of rationality; for a brief summary of those effects, see id. at 14-16.
(117.) P. 157.
(118.) See pp. 210-11. Clients might agree to this because it reassures their bargaining partners and allows them to close deals that they might not be able to otherwise. See pp. 210-11
(119.) P. 234 n.8.
(120.) See p. 18; see also p. 102 (arguing that methods of legal analysis are "thought to be more structured and grounded than popular moral discourse").
(121.) See text accompanying notes 100-101 supra.
(122.) RONALD DE SOUSA, THE RATIONALITY OF EMOTION at xv (1987). For an elaboration of this argument, see id. at 194-201.
(123.) See id. at 192-94 ("How do we know [what is relevant] without finding out what not to find out ...?").
(124.) Simon, supra note 113, at 110.
(125.) See ANTONIO R. DAMASIO, DESCARTES' ERROR: EMOTION, REASON, AND THE HUMAN BRAIN 36-51 (1994).
(126.) Id. at xii-xiii.
(127.) In a famous set of experiments, Stanley Schachter and Jerome Singer gave epinephrine--a stimulant--to volunteers. Those in the company of an angry person identified their aroused physical state as the emotion of anger, while those in the company of a euphoric person identified it as euphoria. See Stanley Schachter & Jerome E. Singer, Cognitive, Social, and Physiological Determinants of Emotional State, 69 PSYCHOL. REV. 379, 395-96 (1962). This is the classic demonstration that emotions are identified by reference to external situations as well as internal feelings.
(128.) See DAVID HUME, A TREATISE OF HUMAN NATURE 415 (L.A. Selby-Bigge ed., 2d ed., Oxford Univ. Press 1978) (1739).
(129.) P. 102.
(130.) Richard Posner, for example, reminds us that the legal analyst deals with "texts--primarily judicial opinions, statutes, and miscellaneous rules and regulations--written by judges, law clerks, politicians, lobbyists, and civil servants. To these essentially, and perhaps increasingly, mediocre texts he applies analytical tools of no great power.... "RICHARD A. POSNER, OVERCOMING LAW 90-91 (1995).
David Luban, Frederick Haas Professor of Law and Philosophy, Georgetown University Law Center. Thanks to Heidi Feldman, Carrie Menkel-Meadow, and Robin West for discussions of ideas in this paper, and to Mitt Regan for comments on an earlier draft. Thanks in addition to Bill Simon for many years of encouragement and dialectical exchange.…