A Modern Legal Ethics: Adversary Advocacy in a Democratic Age

A Modern Legal Ethics: Adversary Advocacy in a Democratic Age

A Modern Legal Ethics: Adversary Advocacy in a Democratic Age

A Modern Legal Ethics: Adversary Advocacy in a Democratic Age


A Modern Legal Ethics proposes a wholesale renovation of legal ethics, one that contributes to ethical thought generally.

Daniel Markovits reinterprets the positive law governing lawyers to identify fidelity as its organizing ideal. Unlike ordinary loyalty, fidelity requires lawyers to repress their personal judgments concerning the truth and justice of their clients' claims. Next, the book asks what it is like--not psychologically but ethically--to practice law subject to the self-effacement that fidelity demands. Fidelity requires lawyers to lie and to cheat on behalf of their clients. However, an ethically profound interest in integrity gives lawyers reason to resist this characterization of their conduct. Any legal ethics adequate to the complexity of lawyers' lived experience must address the moral dilemmas immanent in this tension. The dominant approaches to legal ethics cannot. Finally, A Modern Legal Ethics reintegrates legal ethics into political philosophy in a fashion commensurate to lawyers' central place in political practice. Lawyerly fidelity supports the authority of adjudication and thus the broader project of political legitimacy.

Throughout, the book rejects the casuistry that dominates contemporary applied ethics in favor of an interpretive method that may be mimicked in other areas. Moreover, because lawyers practice at the hinge of modern morals and politics, the book's interpretive insights identify--in an unusually pure and intense form--the moral and political conditions of all modernity.


If the basic task of ethics is to say how one should live, then the basic task for a professional ethics is to explain how the actions, commitments, and traits of character typical of the profession in question may be integrated into a life well-lived.

For some professions—perhaps for medicine—answering this question is an essentially happy affair. The medical profession’s core ethical appeal is never seriously in doubt, and so its professional ethics is primarily concerned with elaborating the values that account for this appeal and analyzing marginal cases (such as end-of-life care), where it is unclear just what conduct these values recommend. For other professions—for example, for torturers—professional ethics is an essentially unhappy affair. The torturer’s professional commitments cannot, finally, be seen as anything other than a retreat from ethical life, and so his professional ethics become inevitably a masquerade, which can at most disguise the ethical failings of a basically degenerate occupation.

There exists also a third class of professions, for which the nature of professional ethics is essentially uncertain. These professions have obvious ethical appeal but also display obvious ethical shortcomings; and although virtuous professional administration may enhance the professions’ appeal and diminish the shortcomings, these will never be more than incremental changes to substantial entries on both sides of the ethical ledger. Accordingly, it is an open question, for such professions, whether a life lived within them may be a life well-lived, overall.

Law is just such a profession. On the one hand, lawyering is intimately connected to the deep and enduring ethical ideals of respect for persons that justice involves. On the other hand, the legal profession also has an ethically troubling aspect. Lawyers—at least when they function as adversary advocates—do not pursue justice itself, directly and impartially. Instead, they are charged loyally to represent particular clients, whose interests and aims may diverge from what justice requires. This entails that adversary advocates commonly do, and indeed are often required to do, things in their professional capacities, which, if done by ordinary people in ordinary circumstances, would be straightforwardly . . .

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