Living in the Law

Abstract

Legal ethics is largely concerned with questions of moral permissibility. Is a lawyer morally permitted, for example, to destroy the character of an innocent witness through ruthless cross-examination or to withhold information, unknown to the authorities, regarding his client's participation in past crimes? A lawyer has a duty to advance the interests of his clients with maximum effectiveness, within the limits of the law, and to do this must often perform actions that from a moral point of view may seem dubious or even indefensible. Whether, despite the appearance of impropriety, these actions are in fact morally allowable is generally assumed to be the central question of legal ethics. Most affirmative answers to this question appeal to the advantages of an adversarial system of adjudication and attempt to show that various actions that would indeed be objectionable if performed outside the context of such a system must be encouraged, or at a minimum allowed, if the advantages of the system as a whole are to be secured. Arguments of this sort lead, in turn, to the further question of whether adversarial procedures are themselves morally acceptable, a question that grows directly from our doubts about the permissibility of the more specific things that lawyers do. These doubts culminate in uncertainties about the moral propriety of the adversarial system as a whole, and it is to this latter topic that Anglo-American writers on legal ethics have devoted the greatest attention—unsurprisingly, given their preoccupation with the issue of moral permissibility in general.