Tuesday, April 17, 2007

McGowan and Wendel on the Torture Memos

Posted by Jeff Lipshaw

I have been remiss in not linking to a "dialogue" between two of my favorite thinkers (and people), BradMcgowand B_wendel Wendel (in this corner) and David McGowan (in that corner) over at Legal Ethics Forum.  I put the "dialogue" in quotes because Brad posted a note some weeks back on whether the Minnesota Law School could consider the "competence" of Robert Delahunty (who was being considered for a visiting professorship) in connection with the infamous "torture memoranda."  David has responded that there is in fact a colorable issue of interpretation of the Geneva Convention as to which any view of competence must be agnostic.  He suggests there is a problem of a self-referential loop in defining competence by what lawyers do, and, I think, accuses Brad of moving from the "is" of description - most lawyers would object to this - to the "ought" of a normative view - the majority is correct.   But Brad hasn't responded, so there really hasn't been much dialogue.

I was particularly intrigued by these paragraphs of David's post:

2.  Brad recognizes that this theory has to incorporate a theory of interpretation. One cannot tell evasion from avoidance, or from a good-faith conclusion that a law does not apply, without knowing how laws are supposed to be read.  He thinks the text of a rule often does not answer questions, particularly in “hard” cases. Thus, interpretation must aim at “recovering the spirit, purpose, or normative background underlying a set of textual rules, not merely the meaning that the textual expression of these norms might plausibly bear.” Toward this end, interpretation is dynamic and necessarily requires reference to “an interpretive community of lawyers, judges, and scholars that is constituted by fidelity to law as a cooperative social enterprise.”

3. Brad’s theory plays favorites among interpretive methods.  He rejects the view that interpretation is, almost by definition, a search for the intention of an author.  He rejects more grammatical notions such as “original public meaning originalism.” Both these theories see interpretation as having a fixed reference point; they reject the dynamic interpretation he posits as an element of competence.  They reject the notion that meaning comes from an interpretive community, at least insofar as that idea means more than some sort of “public meaning.”

4.    Brad justifies his theory on the ground that it promotes settlement, which is good.  But why should settlement be better promoted by a dynamic theory than one with a fixed reference point, such as some flavor of originalism? Even if, as sometimes will be the case, no original meaning can be found it does not follow that it is incompetent to try, especially when trying might force change to go through recognized procedures rather than (unsettling) judicial ukases. (To be clear, I am not an originalist; my use of it here is to make a point about Brad’s theory, not to defend it as such (I am a legal-process purposivist).)

I will throw in another perspective.  The "debate," as David has framed it, is over the criteria by which we can determine that a lawyer's interpretation (in advocacy) of a text is competent.  I have just started into John Searle's Speech Acts, and his initial discussion is to fend off a particular criticism of concepts (in Searle's case, analyticity of propositions and synonymy of words; here the equivalent would be competence of interpretation):  the critics contend that these are not helpful because we cannot establish good criteria for classifying borderline cases (here it would be between competent and incompetent).  The interesting paradox Searle observes is that we are able to accept or reject criteria only when we have a pre-supposed notion of the concept they are supposed to illustrate, meaning that - what? - we already have some knowledge about the concept before we begin to use language to define it.

The concept at issue is the one Brad mentions:  "the objection is that a lawyer who simply acquiesces in a client's demand, where the client has no legal basis for its proposed course of action, is failing to carry out the fundamental professional obligation of providing competent, independent, candid legal advice and to refuse to assist the client in an illegal course of action."  We can only view a particularAli interpretation of a text (whether a "dynamic" interpretation or one from a "fixed reference point") as borderline competent if we have a notion of competence that precedes this particular debate.  I think David is arguing (and I'm sympathetic to it) that we have a concept of competence that precedes any attempt to define it by criteria of interpretive methods.

When this is over, who between these legal ethics heavyweights will still be standing?

UPDATE:  Now the battle has been joined!  See Brad's response:  Wendel on McGowan on Wendel on Delahunty.  The thrilla in Manila!


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Provided your characterization of David's argument is correct, and I think it is, then I also think he's right that 'we have a concept of competence that precedes any attempt to define it by criteria of interpretive methods.' On behalf of such an argument I cite from Dennis Patterson's paper, 'Interpretation in Law' (San Diego Law Review, Vol. 42, 2005 Available at SSRN: http://ssrn.com/abstract=702921): 'Interpretation is a nonstarter because interpretation draws our attention away from the techniques that make understanding possible. Correct and incorrect forms of action are immanent in practices. Thus, correct forms of action cannot be imposed upon a practice, by interpretation or otherwise. It is only when we master the techiniques employed by participants in a practice that we can grasp the distinction between correct and incorrect action.' In other words, legal competence is prior to and presupposed by theories of interpretation, which are 'activated by a breakdown or failure in understanding.' Such competence is evidenced in facility with the proper forms of legal argument (textual, doctrinal, historical, etc.) that serve as the '(immanent) grammar of legal justification. So, while my heart is with Brad (now on the canvas), my head sides with David. The next fight will be over the applicable hermeneutic principles of legal interpretation.

Posted by: Patrick S. O'Donnell | Apr 17, 2007 8:41:21 PM

On the canvas? Sheez, that's harsh. Seriously, in response, I think both interpretation and competence ("correct and incorrect forms of action") are immanent in practices. In fact, I was going to write something about practices in response to David's raising the is/ought problem, but figured I had said enough. The immanent game of legal justification -- that's a nice way to put it -- is a practice in MacIntyre's sense, that has internal goods associated with it, and hence has normativity for participants in the practice.

Posted by: Brad | Apr 18, 2007 10:48:43 AM

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