W. Bradley Wendel (Cornell) has posted Lawyering in the Christian Colony: Some Hauerwasian Themes, Reflections, and Questions on SSRN. The abstract follows.
This paper was prepared for a conference on Stanley Hauerwas and the Law, held at Duke University in September 2011. One who shared Hauerwas’s theological commitments might find it difficult to serve as a lawyer, given that the principles of legal ethics are grounded in the kind of political liberalism that Hauerwas finds repellent. For example, Stephen Pepper’s well known liberal defense of the standard conception of legal ethics pretty much pushes all of the buttons that set off Hauerwas. Pepper argues that while 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, citizens are necessarily required in some cases to seek advice from legally trained professionals to determine whether their proposed course of conduct may violate the law, or to employ mechanisms provided for by the legal system (such as contrasts, wills and trusts, and business entities) to achieve their 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, providing technical assistance but not moral suasion. As any reader of Hauerwas knows, this is an aspect of the modernist anomie he warns about, in which the 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. Thus, one may ask whether a Christian lawyer can follow some version of the standard conception, at least on Hauerwas’s conception of Christian social ethics.
With considerable hesitation, given the size and complexity of the corpus of Hauerwas’s scholarship, this paper attempts to offer an engaged Christian legal ethics in which the primary obligation of lawyers, acting in their professional capacity, is to respect the law. The linchpin of the argument is a critique of Hauerwas’s anti-liberalism. Hauerwas’s objections to liberalism do not hold against a theory of politics that begins with foundational assumptions other than deracinated individuals, and assumes that politics is something more than merely a technology to satisfy pre-existing wants. A different liberal theory might assume, by contrast, that people have reasons to live together in communities and work out a common approach to living together, while treating one another as equals. To the extent there are good theological grounds for treating one another as equals, this version of liberalism can be understood as a political response to God’s presence in the world. A consistent theme in Hauerwas’s work is the dependence of values upon communities, traditions, and stories. I do not see why part of a community’s tradition and self-understanding cannot be pluralism and the corresponding need for some means of dealing with one another despite empirical uncertainty and disagreement about morality. If a community’s history and traditions can be so characterized, then any duties a citizen, public official, or lawyer may have toward the community’s institutions, including the legal system, may be understood as a way of expressing respect for one’s fellow citizens.