Academic journal article Texas Law Review

Fidelity to Law and the Moral Pluralism Premise

Academic journal article Texas Law Review

Fidelity to Law and the Moral Pluralism Premise

Article excerpt

Fidelity to Law and the Moral Pluralism Premise LAWYERS AND FIDELITY TO LAW. By W. Bradley Wendel. Princeton, New Jersey: Princeton University Press, 2010. 286 pages. $35.00.

Bradley Wendel is a pioneer on the new frontier of theoretical legal ethics. Wendel follows the lead of William Simon in breaking from the long-dominant discourse of moral theory in legal ethics and moving legal ethics toward a jurisprudence of lawyering.1 Rather than pursuing the more traditional question of whether it is possible for good lawyers to be good persons, Wendel focuses our attention on what it means to be a good lawyer. One of the core functions of law practice is the interpretation of law. Clients seek legal advice because they want to understand what the law says and how the law constrains their choices. Because lawyers have the power to interpret and declare the law through legal advice, Wendel argues, they have a professional responsibility to interpret the law faithfully.2 Lawyers and Fidelity to Law is Wendel's exploration of what it means for lawyers to fulfill this professional responsibility.

Legal ethics, Wendel once wrote, must be "'normative all the way down,' with a theory of democracy justifying a theory of the function of law, which in turn justifies a conception of the lawyer's role."3 In Fidelity to Law, Wendel presents and defends such a comprehensive theory of lawyering with two interrelated arguments: a functional argument that law deserves respect because of its capacity to settle normative controversy in a morally pluralistic society and a normative argument that law deserves respect because democratic lawmaking processes respect the equality and dignity of citizens. This Review focuses on one of the links in the chain of Wendel's normative-allthe- way-down argument: his move from the premise of moral pluralism to his conclusion that the function of law is to settle normative controversy in society.

I question Wendel's move on both practical and theoretical grounds. Practically, it is questionable that law has the capacity to settle moral controversy-at least the deepest kind of controversy that society is unable to settle as a result of reasonable moral pluralism. And that is important, because at the deepest level of Wendel's normative-all-the-way-down argument, law's capacity to do something for us that we cannot do for ourselves is the source of the respect that we owe the law.4 More importantly, I question whether, in a morally pluralistic society, we should want law to settle normative controversy. Wendel argues that we need to settle such controversies so that we can move on and organize our affairs despite our deep disagreement about values. I argue, however, that efforts to unsettle law need not be seen as a threat: the continual ebb and flow of normative controversy can be viewed as an incident of, rather than an impediment to, a free and just society.

I. Wendel's Argument from the Moral Pluralism Premise

Fidelity to Law reinterprets the traditional partisan, and morally neutral, role morality of lawyers, grounding legal ethics in both jurisprudential and political theory. True to Wendel's earlier work,5 Fidelity to Law neither condones lawyers' minimal technical adherence to the law governing lawyers nor simply refers lawyers to moral values for guidance. Although in the past Wendel has argued that legal-professional values are plural,6 he now centers his theory of legal ethics around a single overarching value: fidelity to law. Wendel reshapes lawyers' duty of partisanship around clients' legal entitlements-defined as "what the law, properly interpreted, actually provides" for a client7-rather than the zealous pursuit of a client's legal interests.8 And Wendel reinterprets lawyers' traditional duty of moral neutrality toward their clients' ends as respect for the authority of law even in the face of disagreement with its substantive justice.9

Wendel grounds legal ethics in a jurisprudence heavily influenced by H. …

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