The Fault in Legal Ethics

Abstract

Two old and antagonistic traditions of thought shape the modern field of legal ethics. One of these has its beginnings in Aristotle's political philosophy, and the other in the contractarian theories of Hobbes and Locke. Both traditions influenced the design of the American republic, whose founders combined elements from each in a new and volatile synthesis marked by tensions that have been a part of our public life ever since. Our view of the legal profession—of what lawyers do and ought to do—is the product of a similarly unstable combination of elements drawn from these two traditions, and many of the most familiar and seemingly intractable disagreements within the field of legal ethics, the fault lines along which opinion seems forever to divide, are a consequence of the effort to join, in a single view of the lawyer's role, such strikingly different conceptions of political morality. At different moments in our history, one of these traditions has been more influential than the other. In the early years of the republic, it was the Aristotelian conception of the lawyer's role—the republican conception—that dominated the discussion of professional ethics. In the last half century, the contractarian conception has achieved a comparable intellectual and moral dominance. There are signs that this may now be changing, that the influence of republican ideas is once again growing within the field of legal ethics. I shall have more to say about this later in my talk. But first I need to define my terms, to tell you what I mean by the republican and contractarian traditions, and to explain how these traditions and the conflict between them have shaped our complex and unstable understanding of what lawyers do.