A Modern Legal Ethics: Adversary Advocacy in a Democratic Age

By Daniel Markovits | Go to book overview

POSTSCRIPT

ALTHOUGH THIS book has taken narrowly legal ethics—the question whether the legal profession is worthy of commitment—for its real as well as its nominal subject, the argument that it has pursued has implications for modern moral life more broadly.

First, the methodology that the book has employed may be applied elsewhere also, in order better to understand ethical practices besides adversary advocacy.

This is important. The low regard in which most philosophers hold applied ethics quite generally and the disregard for applied ethics usually displayed by persons who actually inhabit the circumstances that applied ethics addresses suggest that there is widespread dissatisfaction with the casuistic approach that applied ethics traditionally adopts, including even in its natural constituencies. This state of affairs encourages making a fresh start, and the method pursued here is presented in this radical spirit: the shift in ethics from casuistry to reconstruction is as dramatic, for example, as a shift in literature from plot-driven to character-driven fiction. It involves reorienting, in a basic way, the point of an enterprise—from story-telling to portraiture in literature, and from advice to understanding in ethics.

Of course, not every new beginning bears fruit, and doubts always arise about whether an ambition is worth pursuing and whether it is being pursued by suitable methods. The analogy to literature is again informative here. The first doubt confronts both character-driven fiction and reconstructive ethics with the question whether contemplative problems are important enough to justify the rigors and demands of the disciplines directed at answering them. It seems to me that there is no reason why not—indeed, no reason why contemplative problems should be thought any less real or important than other sorts of problems. Certainly the prominence of character in “serious” literature suggests that even the most purely contemplative problems merit sustained and energetic attention. And it seems that a philosophical ethics that addresses the reflective demands of practical agents but not necessarily their demands for guidance is similarly worthwhile. The second doubt worries, in the case of character-driven fiction, whether successful literary portraiture is possible and, in the case of reconstructive applied ethics, whether it is possible to say what an ethical condition is like in a philosophically serious way. This doubt can be resolved only by actually succeeding in the tasks at hand. The realist novel provided the resolution for fiction.

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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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