Academic journal article Law and Contemporary Problems

Lawyering in the Christian Colony: Some Hauerwasian Themes, Reflections, and Questions

Academic journal article Law and Contemporary Problems

Lawyering in the Christian Colony: Some Hauerwasian Themes, Reflections, and Questions

Article excerpt

I INTRODUCTION

The basic question for secular philosophical legal ethics, following the formulation in an influential paper by Charles Fried, is often taken to be, "Can a good lawyer be a good person?" (1) This question highlights the possibility that obligations owed as a matter of one's professional role might conflict with duties owed qua moral agent. As classic case studies illustrate, lawyers may be required to keep information confidential that could be used to prevent serious harm if disclosed, (2) assert a technical defense to defeat a just claim, (3) or provide legal representation to loathsome clients like the Grand Wizard of the Ku Klux Klan or a former guard at the Treblinka concentration camp. (4) The so-called standard conception of legal ethics tells lawyers that they must act out of exclusive concern for the legal interests of their clients. A lawyer is permitted to disregard the interests of affected third parties and the public interest, if it would be in the client's interests to do so, and if the law permits the violation in question of the third party or public interest. Why must a lawyer, for example, interpose a procedural defense to enable her client to avoid paying a debt she admits she owes? Because it is in the client's interests, the maneuver is "within the bounds of the law" in the sense that neither the client nor the lawyer would be subject to legal penalties for employing it, and because the lawyer's only moral obligation arises from the duty of loyalty to her client who has the autonomy to choose whether or not to repay the debt. Critics of the standard conception claim that when lawyers violate the rights of non-clients by deceiving, humiliating, or manipulating them, the purported justifications they offer fail to excuse the moral wrongs they commit. (5) Although loyalty to clients may be an important value, other values are also implicated in these cases, and defenders of the standard conception must also justify a priority principle that gives client-regarding obligations greater weight than obligations owed to affected non-clients or to society as a whole.

For the purposes of this symposium on the relevance of the work of Stanley Hauerwas for the law, the important thing to notice about this debate is that most defenses of the standard conception are grounded, in one way or another, in political liberalism. (6) The liberal foundation is evident in Stephen Pepper's well-known warning against government by an "oligarchy of lawyers." (7) At least regarding competent adults, all of us are moral agents, responsible for determining how to lead our lives. The law necessarily imposes restrictions on what we may do, but no one else is empowered to place restrictions on our autonomy. In a complex, highly legalistic society, however, we are necessarily required in some cases to seek advice from legally trained professionals to determine whether our proposed course of conduct may violate the law, or to employ mechanisms provided by the legal system (such as contracts, wills and trusts, and business entities) to achieve our goals. In providing this assistance, lawyers should not impose their own views about the morality of their clients' conduct. Rather, they should assist their clients in implementing their own plans and providing technical assistance. (8)

As any reader of Hauerwas knows, this is an aspect of the modernist anomie he warns about. In a modern liberal society, autonomy to decide for oneself is exalted into the first principle of ethics, with the result that individuals are cut off from the resources they need (traditions, communities, stories) to construct meaningful lives for themselves. This kind of alienation can be cured only by associating oneself with a community--for Hauerwas this is the church--and sharing in the ongoing development of its history. Before turning to the theological critique of liberalism, however, it is noteworthy that some lawyers outside the church have also found the standard conception unsatisfying because its grounding in thin, procedural values cuts lawyers off from the moral resources that would give meaning to their professional lives. …

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