A Modern Legal Ethics: Adversary Advocacy in a Democratic Age

By Daniel Markovits | Go to book overview
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Chapter 6

LAWYERS’ PROFESSIONAL obligations to lie and to cheat threaten their integrity. Moreover, impartialist moral arguments such as the adversary system excuse—which justify the lawyerly vices only indirectly and as necessarily evils rather than directly refuting that adversary advocates display them—cannot relieve this threat. Indeed such arguments entrench the attack on lawyers’ integrity by increasing the pressure on lawyers to honor the professional obligations at its source. Accordingly, insofar as integrity is a substantial value, the ethical burdens associated with the lawyerly vices require independent attention, of a sort that the impartialist tradition in legal ethics cannot provide, before the legal profession may be rendered all-things-considered worthy of commitment.

This makes it natural for legal ethics to develop the unconventional themes toward which I have been gesturing and which I take up in earnest in Part III. The idea of integrity suggests that living an ethical life involves more than responding impartially to the claims of others, whether these arise in the third person (through the contributions they make to overall value) or in the second person (through the demands they make for individuated justification). Instead, persons also have a deep and distinctively ethical interest in living a life that can be seen, from the inside, as an appealing whole and, moreover, a whole that is authored by the person who lives it. Insofar as integrity is ethically important, therefore, a person who forms ambitions and plans—who undertakes to author her own moral life—thereby (in a way) creates ethical reasons for herself. As I have been saying, integrity, and the plans and ambitions through whose recognition and pursuit integrity arises, involve not third- or even second- but rather first-personal ethical ideals.*

*A more common usage, which refers to “agent-relative” and “agent-neutral” instead of to first-personal and impartial reasons, tends to obscure the important point that firstpersonal ideals have as much claim to be called ethical as impartial ideals, instead making it natural (although not required) to associate agent-relative with prudential reasons and to reserve ethics for agent-neutral reasons. This natural association diminishes agentrelative reasons and elevates agent-neutral reasons and therefore makes it difficult to credit that the former may sometimes outweigh the latter in all-things-considered practical deliberations. My slightly unusual usage is designed to counteract this tendency and to emphasize that first-personal ambitions may involve serving others and can be as ethical as


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A Modern Legal Ethics: Adversary Advocacy in a Democratic Age


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