In this Propter Honoris Respectum, I want to begin by quoting from a review that I had the pleasure of writing some years ago of one of Tom Shaffer’s books:
Thomas Shaffer is the most unusual, and in many ways the most interesting, contemporary writer on American legal ethics. A lawyer impatient with legalisms and hostile to rights-talk, a moral philosopher who despises moral philosophy, a Christian theologian who refers more often to the rabbis than to the Church Fathers, a former law school dean who is convinced that law schools have failed their students by teaching too much law and too little literature, a traditionalist who wholeheartedly embraces feminism, an apologist for the conservative nineteenth-century gentleman who describes his own politics as “left of center,” Shaffer is a complex thinker who, I suspect, takes more than a little pleasure in the contradictions he bestraddles.
In any event, Shaffer has produced a series of books and articles on professional ethics written with profundity, gentility, and polemical passion.[562]All of Shaffer’s work that I know (and that is only a small fraction of his dozen books and 300 articles) could bear the title of one of his most famous books: On Being a Christian and a Lawyer.[563] As Shaffer has written elsewhere, “People show what their morals are by claiming where they come from,” and, more briefly, “Belonging explains reality.”[564] Where Shaffer comes from is the “community of the faithful” to which he belongs.[565] Christianity deeply conditions Shaffer’s views of law, lawyers, morals, adversary representation, truth, and community.
To proceed in the spirit of Shaffer’s own dictum, a response to his work should begin by claiming where its author comes from. “An ethic that is not found in a community is not an ethic; it is only somebody’s idea.”[566] The place I begin, therefore, is my membership in an American Jewish community, and my response will be a Jewish approach to some of Shaffer’s themes. I want to challenge Shaffer’s reading of Anthony Trollope’s novel Orley Farm, along with the views of law and lawyers he finds in the novel, and challenge it from a specifically Jewish perspective.[567]
Saying that I speak from within an American Jewish community is not specific enough, however, because there are many Jewish communities, and all of them are famously fractious.[568] A story gives the idea.
A religious Jew is cast away on an island and rescued ten years later. His rescuers notice that he has fashioned two splendid buildings, lovingly assembled of driftwood and stone and bamboo, and elaborately decorated with stones and shells of many colors. They ask him what the buildings are. “Oh, they’re synagogues,” he replies. “But why are there two of them?” He points at the nearer of the two. “That one I pray in.” Then he points at the other. “And that one I wouldn’t go near.” Or, in the words of an old saying: two Jews, three opinions.Very well, then. I begin from the community of Jews who have departed from orthodoxy, but who persevere in the hard upstream swim to the ancestral identity, which we would be devastated to lose; of Jews who consider ourselves political progressives and ethical cosmopolitans; and of Jews who dislike the narrow parochialism and downright jingoism of some Jewish communities, but who secretly fear that without these traits the Jews might disappear (one Jew, two opinions). I suspect that we are not a small community.