A new meme that came to me when reading this story at Volokh about the American Bar Association’s new proposed rule concerning, inter alia, professional misconduct sanctions for lawyers who engage in “verbal conduct” (which sounds rather like speech) that “manifests bias or prejudice” or is “derogatory or demeaning” on matters related to “race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status.” The proposed rule applies to the “practice of law,” which includes “participating in bar association, business or social activities in connection with the practice of law.”

Eugene Volokh offers some interesting questions of the proposed rule’s application. I’m more interested in the ABA’s changing view of speech–from a traditional liberal view to an anti-liberal view. Haven’t we been lectured time and again by the titans of the bar (not to mention the Supreme Court’s sanctimonious diatribes on the matter) about the value of offensive ideas? About the civic importance of tolerating the expression of those ideas which we reject. Here’s one little refresher: something from Justice Douglas’s opinion in Terminiello v. City of Chicago, though many others would have sufficed:

The vitality of civil and political institutions in our society depends on free discussion….[I]t is only through free debate and free exchange of ideas that government remains responsive to the will of the people and peaceful change is effected. The right to speak freely and to promote diversity of ideas and programs is therefore one of the chief distinctions that sets us apart from totalitarian regimes. Accordingly, a function of free speech under our system of government is to invite dispute….Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.

This sort of view could, of course, be challenged. Is it really true that because Terminiello’s advocacy of fascist ideas and race and class hatred might actually persuade people–might convince them to abandon all of those nasty “prejudices and preconceptions”–that the government is therefore powerless to regulate it? Is it better to be governed by fascist ideas than to regulate the consumer’s taste for them?

Right or wrong, it was ostensibly the liberal view. How different the ABA’s approach today seems to be. But I wonder, in this paper, whether the 20th century approach to freedom, and to free speech in particular, was really ever an end in itself, or instead was a gateway (and was even perceived by some of its proponents as a gateway) from one sort of legal culture to another. The classical liberal position is an attractive one in many ways. It’s a pity that so few people have been, and are, really committed to it. Were they at some point? If so, when did that commitment change, and why? There were those in the legal academy and elsewhere who never purported to be liberal and are now feeling pretty darned good. But classical liberalism, as those who know more than I have observed, seems to be on the ropes. Or was this all part of a larger movement away from one culture and toward another? Were most people plying the liberal view actually (even if unwittingly) #NeverLiberal at all?

All Popes Are Political (Just Like the Rest of Us)

When I teach Professional Responsibility, one of the most interesting discussions we have concerns Rule 2.1: “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.”

My experience is that students are, in general, highly resistant to the permissive injunction to lawyers to offer “moral, economic, social, and political” advice to their clients. They don’t see that as within the lawyer’s role. The lawyer should be “neutral” or “nonjudgmental.” Moral and political non-neutrality is for other people.  The lawyer’s role is to fulfill the client’s desires. Morality and politics has nothing to do with it.

I have always found this position unpersuasive. In no way is a “neutral” or “nonjudgmental” or “noninterventionist” or “simply uninterested” position non-moral or non-political.

In the first place, a neutral or putatively noninterventionist position slides imperceptibly into a consequentialist mode of moral and political reasoning. Decisions that implicate moral or political considerations (and many decisions for which a lawyer’s counsel is sought do this) are simply assessed from a particular cost-benefit vantage point–a consequentialist calculus from the perspective of one, the client. But the lawyer does not escape moral or political judgment by tacitly adopting this kind of consequentialism. She is neck-deep in morality and politics! The real problem is that she has adopted a moral and political world view without realizing it. Indeed, she has adopted a position against those moral and political systems which at times demand non-consequentialist choices.

Second, the neutral or allegedly uninterested position puts a thumb on the scale of the egotistical choice. The right thing to do is what the client wants, and what the client wants serves the client’s interests. Again, this is a perfectly plausible position to adopt as a lawyer. But it is a deeply moral and political position. The morality and the politics may be unattractive; indeed, they may be downright ugly. But there is no escaping the political and moral conviction that undergirds this view, no matter how hard one may want to escape it. There is no such thing as a morally or politically neutral lawyer.

All of this came to mind when I read my friend Mark’s two posts about whether Pope Francis is a “nonpolitical” pope. There is no such thing. It is unnecessary to rely on the overtly political comments in Pope Francis’s recent interviews to prove the point. To be sure, one could easily counter the “nonpolitical” argument by pointing to the Pope’s criticisms, in these selfsame statements, about political liberalism; or one could point to his emphasis on economics and the Church’s role in the alleviation of poverty; or one could point to his relativist conception of moral conscience. All of these views have profound and direct moral and political import.

But this is all, to some degree, beside the point. At least in this way, popes are closer to lawyers than to mystics. The pope is the head of the institutional Catholic Church (not only that, or even primarily that, but certainly that); he is not St. John of the Cross. Mystics live in isolation from society and politics. Popes do not. And it is inevitable that a pope’s views on those questions about which popes are called on to give their voice, their counsel, and their wisdom will implicate moral and political judgment.

Non sum Oedipus, sed Morus

I am greatly looking forward to participating toward the end of the month in a workshop on the thought of Sir Thomas More, to be held at the University of St. Thomas under the auspices of the excellent Murphy Center.  But I wanted to point readers to a very worthwhile extended review by Louis W. Karlin (one of the conference’s conveners) of Travis Curtwright’s recently published The One Thomas More (2012).  Because I am scheduled to teach Professional Responsibility in spring 2014 and am fixing to reconstitute the course substantially, I found the following in the review especially interesting.  One issue I’ve always wanted to learn more about–and have thought might be rightly considered in a legal ethics course–is the relationship of equity to law and specifically the question whether equity may be understood as within law or instead as sitting outside it.

A particularly important aspect of Curtright’s study is his focus on More as a lawyer and jurist, demonstrating how More integrated his formative humanistic studies in classical literature with his professional career.  Contemporary legal practitioners and scholars will find much to ponder in Curtright’s extended analysis of the organic connection between rhetoric and jurisprudence in More’s thought, as it is developed in readings of Richard III and Utopia.  More believed that an education in the liberal arts, especially when combined with the study of law, informed and strengthened the practical judgment.

Curtright detects in More’s Utopia the foundations of a unique humanist jurisprudence.  By cultivating one’s practical judgment through careful study of poetry, history and law, a would be lawyer or legislator can discern the highest ideals for human flourishing, while simultaneously recognizing the inherent limitations in human nature that militate against radical reform.  More’s humanist jurisprudence reached its fruition in the expansion of equity jurisdiction that he championed and applied as a judge in the Chancery and Star Chamber courts to ameliorate the unfairness arising from strict application of legal rules under common law.  For More, equity, as the application of practical reason according to conscience, did not give a judge license to ignore the law in favor or his own understanding of justice. Rather, equity provided a moderating, ameliorative function to be exercised to better the law’s intent.

The notion that a young humanist champion of utopian reform gave way to a conservative statesman is to mistake the voice of Utopia’s Raphael Hythloday for the author’s.  As Curtright persuasively argues, the “real” More’s voice heard in The Life of Pico and Utopia is distrustful of “[s]ystematic answers to political problems,” advocating instead “engagement and accommodation applied toward modest goals” (86).  Thus, in his jurisprudence, it is the “rigor of the law, not the law itself, that should be reformed.”  As a judge and statesman, More distrusted radical reform in the manner of “sweeping Utopian legislation because More’s ideas of reform, such as they were, deal with the application of equity through conscience” (99).  This did not reflect “‘an Augustinian belief in the total and helpless depravity of fallen man,’” as Elton thought (7).  Rather, it follows from the same realization that inspired Dr. Johnson’s compassionate conservatism:  “The Cure for the greatest part of human Miseries is not radical, but palliative.”  (The Rambler, No. 32, July 7, 1750.)

Conference on Christian Legal Thought (Jan. 7)

The Lumen Christi Institute will host the annual Conference on Christian Legal Thought on January 7 in Washington. Panels include “Public Unions and the State of Organized Labor,” “Pedagogy,” “Law, Speech, and Morality,” and “The Vocation of the Christian Lawyer and the Future of Legal Education.” Speakers include St. John’s own David Gregory. Details are here.

Wendel on Christian Legal Ethics

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 Read more

The Secularization of the Legal Profession

Over at Mirror of Justice, Rob Vischer (St. Thomas – Minnesota) has an interesting post about a presentation he made last week, at a conference at Notre Dame, about the secularization of the legal profession over the last century. As evidence, he gives the very good example of the move from the “‘moral law’” standard of the 1908 ethical canons to today’s more agnostic approach. Although under the 1908 canons lawyers had a duty to provide moral advice to clients, nowadays moral advice is optional, and, in fact, subtly disfavored. The contemporary lawyer must find a way to achieve the client’s ends within the bounds of the law; we leave questions of morality mostly to the client. As it happens, I made a presentation on this very subject last month at the Forum 2000 Conference in Prague, in which I argued that the new approach is not the abdication of morality, exactly, but the substitution of a morality of individualism for one based on consensus moral norms derived from religion. (A video of the talk is here). Rob has a paper in the works that will no doubt be, like all his scholarship, well worth the reading. – MLM

Liveblogging Forum 2000: Religion, Ethics, and Law

This morning, I participated in Forum 2000’s second law-and-religion panel, “Religion, Ethics, and Law.” The panel (below) addressed the growing “divorce” between law and moral principles and the influence of secularization on law and ethics. The panel was chaired by Jiří Pehe, Director of NYU-Prague. Tomáš Halík, a sociologist and President of the Czech Christian Academy, opened the panel by discussing the different concepts of law in Islam, Judaism, and Christianity. The first two religions, Halík said, are essentially about law, unlike Christianity, which is essentially about faith; the first two emphasize orthopraxy, while Christianity emphasizes orthodoxy. He noted that Western law has been influenced both by Christian roots and by the secularizing effect of the Enlightenment, which was itself “the unwanted child of Christianity.” I followed with a discussion of the distinction between moral and legal advice in American lawyers’ ethics. Over time, I showed, American legal ethics have minimized the lawyer’s role as moral counselor; although 100 years ago a lawyer had a duty to impress upon his client the need for “strict compliance” with “moral law,” nowadays a lawyer’s duty is to provide legal, not moral advice. I argued that the change could be understood, in part, as an effect of secularization. William Cook, Professor of History and Religion at SUNY, discussed Tocqueville’s insights into private associations and their role in promoting democracy.  Günther Virt, Professor of Theology at the University of Vienna, spoke about translating faith commitments into public policy arguments, specifically, his experience working on bioethics committees in the Council of Europe and the European Union. (A great line: the increasing number of ethics committees in the West today is evidence of an ethical crisis). He also discussed human rights; although human rights can be justified intellectually without religion, he argued, religion provides the necessary motivation for honoring human rights in particular circumstances. Vartan Gregorian, President of the Carnegie Corporation, ended the panel with a discussion of the dialectic between faith and reason in all three Abrahamic religions. He argued that the key concept in all these religions is not conflict, but synthesis, between faith and reason. – MLM

*UPDATE: You can now watch the video from the “Religion, Ethics and Law” Panel here. -ARH[vodpod id=Video.15541931&w=425&h=350&fv=bufferlength%3D5%26amp%3Brepeat%3Dalways%26amp%3Bstretching%3Duniform%26amp%3Bcontrolbar.position%3Dover%26amp%3Bcontrolbar.idlehide%3Dtrue%26amp%3Bdock%3Dfalse%26amp%3Bicons%3Dtrue%26amp%3Bautostart%3Dfalse%26amp%3Bimage%3D%2Fimg%2Flayout%2F_default3.jpg%26amp%3Bstreamer%3Drtmp%3A%2F%2Fbiztube.cz%3A443%2Fforum2000%26amp%3Bfile%3Dforum2000-forumhall-20111011-1.f4v]

Wiebe on Oaths in a Religious and Legal Context

Virgil Wiebe (University of St. Thomas School of Law) has posted Oath Martyrs. The abstract follows. – ARH

Taking oaths, or refusing to take them, or being prevented from taking them, or breaking them, have been critical matters, even life and death matters, for centuries. Why do lawyers and others in official proceedings swear oaths? What do oaths mean? Why are there provisions for affirmations rather than swearing? How can long forgotten stories of oath martyrs inform law students and lawyers today?

Part I of this article presents a short slide backwards into the long history of oaths, with emphasis placed on the role of religious belief in oaths. Infidels, the infamous, the indiscreet, the insane, interested parties: all were barred at various points from testifying under oath. As I teach and practice in Minnesota, some extra attention is paid to the evolution of oaths in Minnesota, placed in larger Anglo-American legal context. Read more

Brundage’s “The Medieval Origins of the Legal Profession”

The legal profession as we know it today was born between the 12th and 13th centuries in Europe, and most especially at the University of Bologna.  The new lawyers practiced in church courts — indeed, as James Brundage notes in his magnificent study, The Medieval Origins of the Legal Profession: Canonists, Civilians, and Courts (Chicago Press 2008):

[P]rofessional lawyers first emerged in the courts of the medieval church.  Practitioners in civil courts that employed the procedural system of the ius commune [the common, learned law] quickly followed suit and adopted procedures that resembled those already introduced in the ecclesiastical courts.  Development of a professional identity among the canonists thus seems to have supplied a model that other professional groups, such as English common lawyers and university-trained physicians, adapted to their own needs and purposes.  (3)

The term “profession,” Brundage argues, had religious roots “connected with making a solemn promise or undertaking” — as in the phrase, “a profession of faith” — and “[m]edieval lawyers were undoubtedly aware of these religious connotations of ‘profession’ when they used the term professio advocatorum, familiar to them from Roman legal sources, to describe themselves and their colleagues.” 

It is not often that the connections between religion and the idea of law as a profession — and therefore of the notion of professional responsibility — are probed in such keen detail.  I found Chapter 7 of the book, dealing with the advent in the 13th century of formal professional admission procedures and the swearing of an oath to observe a set of ethical rules concerning the new lawyers’ interactions with clients and courts (with concomitant Church sanctions for failure to comply), particularly interesting.  I am not teaching Professional Responsibility this year, but in the past I assigned selections from Tocqueville dealing with the nature of the legal profession.  If I teach the course again, I will also use chunks of Brundage’s excellent book. — MOD [x-posted MOJ]