The messiness of moral life
The messiness of moral life forms the primary topic of my last chapter, which explores legal ethics through a reading of Anthony Trollope’s Orley Farm. Orley Farm is partly about legal ethics, and it explores situations of intense moral ambiguity, where self-deception runs rampant, where good people do bad things for mixed motives, bad people sometimes have right on their side, and even the best people have flaws, sometimes nearly unforgivable ones.
Significantly, Trollope’s lawyers act as neutral partisans (broadly speaking) for more complex reasons than those underlying the adversary system excuse, and their partisanship can seem both noble and base. Concluding the book in this way, I aim to remind readers that criticizing excuses, or pointing to the importance of broad values like human dignity, barely scratches the surface of moral judgment in a messy world. The chapter also pays homage to Thomas Shaffer, a legal ethicist whose work I greatly admire. Shaffer is best known for his eloquent writing on legal ethics and religion, and the chapter allows me to situate some of my views about moral complexity, human dignity, and non-humiliation within my own understanding of Jewish ethics.An anonymous reader of these papers noticed that I seem “often on the fence, and more ambivalent as to the lawyer’s proper role in the later papers than in the earlier... One would hope for a clearer stance from one who has spent his entire career writing in this area.” At first, I was stung by these comments. On reflection, I believe the anonymous reader is asking for something that moral philosophy delivers at its peril: crisp principles to resolve difficult moral dilemmas in ambiguous situations where values collide and every result is an unhappy one for somebody. Philosophical analysis serves its purpose when it exposes bad arguments and inadequate rationalizations like the adversary system excuse.
But moral theories and the principles they generate are too abstract to be directly useful in practical deliberation. In the words of Oliver Wendell Holmes, Jr., general propositions do not decide particular cases. Furthermore, in their mature forms the moral theories incorporate exceptions and refinements introduced to take care of troublesome counter-examples. Once their purity is breached in this way, it begs the question to use the theories to resolve hard practical dilemmas, because there is no a priori way to tell whether the dilemma is itself a counter-example that the theory should accommodate rather than dissolve. Novelists like Trollope remind you that there are more things in heaven and Earth than are dreamt of in your philosophy.Readers of Lawyers and Justice may regard the present book as more complacent and conservative in its overall approach. Instead of focusing on moral activists using law as an instrument of social reform, I now emphasize the ordinary work of ordinary lawyers. Fred Schauer has perceptively described Fuller’s work as “insider jurisprudence.”[15] Is that true of the present book as well?
I don’t see it that way. My admiration for public interest lawyers has not diminished a whit. But they represent a very small segment of the legal profession; and in any case, the ideal of moral activism applies to all lawyers, not just public interest lawyers. Moral activism means accepting rather than denying moral responsibility for law practice, and therefore embracing the prospect that sometimes lawyers must confront their clients about the injustice of their causes. The argument of this book seems to me fully continuous with that of Lawyers and Justice, although here I place less emphasis on public interest law and more on the constructive work lawyers do in more routine practice.
Nevertheless, after two-and-a-half decades teaching in law schools I can hardly deny being an insider. Although I am not myself a lawyer and have no law degree, spending a career among lawyers and law students has given me a broader and far more sympathetic appreciation of the profession than I had when I began writing about it in 1980.
An important turning point occurred in 1992, when my University of Maryland colleague Michael Millemann invited me to partner with legal clinic lawyers as an “ethics consultant” and co-teacher. This invitation began a multi-year involvement in clinical education over a variety of issues: landlord-tenant law, special education placements, and criminal defense. (For readers unfamiliar with law-school clinics: they involve students representing real clients, typically low-income clients, in real cases, under the supervision of expert law teachers.) I continued this involvement at Georgetown, teaching the classroom component of a clinical ethics course, and participating in Georgetown’s political asylum clinic. As a non-lawyer, I obviously could not join the student-lawyers and their advisors in representing clients, but my consulting and teaching role provided a participant’s point of view far different from that of a philosophical commentator from the sidelines. Ethical questions that seemed straightforward from the spectator’s point of view suddenly seemed far more difficult and ambiguous. I thought frequently about a story I once heard involving a famous mathematical decision theorist who was contemplating a job offer at another university. When a friend suggested that he use his own methods to decide what to do, he supposedly snapped, “Don’t be silly. This is real.” It seemed clear that without understanding the participant’s perspective, the philosophical spectator runs the risk of glib, abstract moralism. On the other hand, participants labor under tremendous psychological pressure that distorts judgment in their own favor and that of their clients. Neither perspective seems reliable. Good judgment, it seems, must somehow integrate, or at least alternate between, the outsider’s and insider’s perspectives (a conclusion that Millemann and I reached in a 1995 article).[16] The difficulty of doing this no doubt explains some of the “fence sitting” that my reader complained about; but it also generated many of the ideas in several of the book’s chapters.[17]