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Subject Area: Political Theory

Law as Moral Conversation - Leonard P. Liggio, Literature of Liberty, Autumn 1980, vol. 3, No. 3 [1980]

Edition used:

Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.

Part of: Literature of Liberty: A Review of Contemporary Liberal Thought, 20 vols. 19781-982

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


Law as Moral Conversation

Thomas L. Schaffer

  • University of Notre Dame

“The Practice of Law as Moral Discourse.” Notre Dame Lawyer 55(December 1979):231–253.

A lawyer's conversation with a client is a moral or ethical conversation since it always involves notions of obligations, rights, the legitimate use of coercion, and damages. There are three ethical models for the lawyer's attempts to represent the client.

First, the ethics of role. On this view, the lawyer serves the client's own good, either following what the client wants or paternalistically telling the client what to do. The former approach involves a laissez faire or adversary ethic argument (the lawyer need not worry if his client is right, for the adversary system balances interests). The latter approach involves lawyers either imposing some moral standard on ordinary people or representing the worst off's interest in order to promote a better society. In either case, the ethics of role is inadequate, for both approaches serve the system. The first case justifies suspension of judgment on the grounds that the adversary system will straighten everything out, in the second case, justifies paternalism by the claim that the lawyer is supposed to be an agent promoting better social norms. Both cases hold the misleading assumption that questions of conscience or the limits of power are irrelevant to the lawyer-client relation.

The second model of lawyer-client relations is the ethics of isolation. Here if the client wants something which the lawyer disapproves of, the lawyer announces this is so (e.g. “I won't make up a will which disinherits your wife and children”). The client then either changes his mind or provides some reasons for what he is doing. The lawyer then either accepts this or refuses to take the case. This approach involves assertion of the lawyer's conscience, but it involves assertions rather than reasoning on both sides. The lawyer and the client do not really communicate or influence each other. Such moral insulation tends to lend a false confidence to the stature of one's moral principles. In short, the approach is totally risk free for the lawyer—his moral world will remain invulnerable.

The third model (which Schaffer prefers) is the ethics of care. Here the lawyer and the client have a genuine moral conversation with both sides respecting one another's autonomy. Borrowing from Gerald Dworkin, Schaffer suggests this involves allowing the client to reflect on his interests, providing him with the requisite information and not deceiving him, and using methods which involve collaboration. Because of the openness and mutuality of this conversation, moral communication may take place.

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III.

History and Social Science Methodology

Sound methodology, appropriate to studying man in all of his complexity and individuality, is necessary if history, sociology, and related disciplines are to portray human nature accurately and live up to the ideal of being true social sciences. In the summaries that follow, we will encounter the debated methodological issues of historism, structuralism in history, the mutual interplay of interpretive theory and historical fact in historiography, the modes of discourse involved in “philosophic history,” hermeneutic or interpretive theory, and phenomenology in the social sciences. The reader may find related issues of methodology dealt with in the July/September 1978 issue of Literature of Liberty, pp. 32–44.