Toward an Interpretive Theory of Legal Ethics

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 simply 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.