A Modern Legal Ethics: Adversary Advocacy in a Democratic Age

By Daniel Markovits | Go to book overview

Chapter 9
TRAGIC VILLAINS

I ARGUED IN Part I that the deep structure of the adversary advocate’s professional role, which is reflected and elaborated by the positive law governing lawyers, subjects lawyers to professional obligations to lie and to cheat in ways that they would ordinarily regard as vicious. Moreover, I argued in Part II that even if the adversary advocate’s professional conduct can be impartially justified, for example, by the adversary system excuse that dominates traditional legal ethics, his moral position nevertheless remains troubling. The tension between his ordinary conceptions of personal virtue, on the one hand, and his professional obligations, on the other, will cast his professional life as a betrayal of self that places his integrity under threat. Accordingly, the arguments that have dominated legal ethics are structurally incapable of rendering the legal profession worthy of commitment, all things considered. Finally, this third part of the book has asked whether legal ethics may nevertheless be brought to a happy conclusion.

The argument has so far been promising, including from the lawyer’s point of view. I have proposed that the ethics of role can in principle preserve the lawyer’s integrity against the threats that my earlier arguments identified. Although the ethics of role cannot insulate lawyers from the requirements of impartial morality (and philosophers are properly dismissive of the suggestion that it can), role-based ethical argument that complements rather than replaces impartial morality has the right form to allow lawyers whose activities are impartially justified on other grounds to preserve their integrity in the face of the charges that they lie and cheat. Role-based redescription can allow lawyers to recast their professional activities in their own minds, recharacterizing the vices attributed to them by common first-personal morality in terms of role-based, distinctively lawyerly virtues that lawyers can affirmatively endorse. Moreover, the argument has displayed a substantively attractive version of a distinctively lawyerly role ethic, involving lawyerly fidelity and negative capability, upon which lawyers might focus their efforts at role-based redescription. This account—and in particular the connection that it draws among adversary advocacy, lawyerly negative capability, and the legitimacy of the legal process—demonstrates that the lawyerly virtues are no mere contrivance but instead bear a natural and close connection to substantial and important political ideals.

-212-

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A Modern Legal Ethics: Adversary Advocacy in a Democratic Age
Table of contents

Table of contents

  • Title Page iii
  • Contents ix
  • Acknowledgments xi
  • Introduction 1
  • Part I Adversary Advocacy 23
  • Chapter 1- The Wellsprings of Legal Ethics 25
  • Chapter 2- The Lawyerly Vices 44
  • Chapter 3- The Seeds of a Lawyerly Virtue 79
  • Part II Integrity 101
  • Chapter 4- Introducing Integrity 103
  • Chapter 5- An Impartialist Rejoinder? 118
  • Chapter 6- Integrity and the First Person 134
  • Part III Comedy or Tragedy? 153
  • Chapter 7- Integration through Role 155
  • Chapter 8- Lawyerly Fidelity and Political Legitimacy 171
  • Chapter 9- Tragic Villains 212
  • Postscript 247
  • Notes 255
  • Index of Cases Cited 341
  • Index of Model Rules and Other Authorities 347
  • Index of Subjects 351
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