Monday, April 9, 2007

Anand on Asking Where's the Law in Legal Ethics?

Posted by Alan Childress
Rakesh Anand (Syracuse--Law) has posted to SSRN his article,"Toward an Interpretive Theory of Legal Ethics," and published it in 58 Rutgers Law Review 653 (2006).  Here is the abstract:

This Article is organized around a simple question: Where's the law in legal ethics? The most powerful contemporary thinking about lawyer behavior tells us that there is nothing uniquely “legal” about a lawyer's professional responsibility and that his or her obligations are simplyRakeshanand the common moral obligations of us all, and nothing more. In the abstract, this position may seem shocking enough. But, the real astonishment comes when one reflects on the prescriptions for lawyer conduct that follow from this line of thought. For example, imagine a plaintiff who has a clearly “just” claim but for which the statute of limitations has run. In this circumstance, the prominent voices in legal ethical theory tell us that it is professionally unethical for the defense lawyer to assert the affirmative defense on behalf of his or her client (because common morality requires an individual to act in a manner consistent with the production of “justice”).

This Article offers the definitive response to this extant view. Appealing to the insights of philosophical-anthropology, as well as more generally of the liberal arts, this Article explains that at least in America, law is a symbolic form of political life, i.e., a form of cultural activity that generates its own complete world of meaning, while also reminding the reader that political life and moral life are incommensurable spheres of human experience. Acknowledging these facts, it follows that a “lawyer” is, by definition, an individual whose behavior supports the symbolic form of law and, therefore, he or she must act in a manner consistent with this cultural activity and the set of beliefs upon which it is grounded (e.g. that “the People” rule). Because of this existential condition, a lawyer's professional responsibility will not always be consistent with the demands of common morality - for example, requiring him or her to assert the statute of limitations to frustrate a plaintiff's “just” claim.

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I've just read the abstract here, but the claim that 'political life and moral life are incommensurable spheres of human experience' stikes me as, at the very least, prima facie implausible and wrong. While someone may subscribe to different ethical standards for intimate relations (or small spheres of interpersonal conduct) and collective conduct (or more straightforwardly political affairs), such a claim is quite contestable (arguable) and nowhere near as radical as the one made here. Plato long ago addressed the endeavor to sever law (or politics) from morality: it's rather tiresome or tedious to have to rehearse these battles again. Still, I hope to read the article in full, even though the abstract rubs me the wrong way.

Posted by: Patrick S. O'Donnell | Apr 9, 2007 12:20:21 PM

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