Alice Woolley recently offered a critique of Daniel Markovits's new book in two posts (here and here). Daniel Markovits has sent along this response:
I am of course delighted and grateful that Alice Woolley is
paying attention to A Modern Legal
Ethics: Adversary Advocacy in a
Democratic Age, and in particular to the book?s interpretive engagement
with the law governing lawyers. It is,
as she says, a ?central question? what immanent norms and ideals organize this
important body of law. Perhaps more
surprisingly, I find myself agreeing with much of what she says, at least in
her first post, although I draw conclusions that are quite different, and indeed
opposed, to hers.
Woolley is clearly right to observe that the law governing
lawyers contains not just the ideals that I call ?lawyer loyalty,? ?client
control,? and ?legal assertiveness,? but also a complex of ideals that in one
way or another tie lawyers to the legal system and its core values ? truth and
justice. Woolley is also right to
observe that the positive law strikes a balance between the client-centered
ideals that I identify and these other, justice-centered ideals. Indeed, I document this balance in detail in
the book and even acknowledge that the positive law might, without abandoning
its distinctively adversary cast, shift the balance substantially towards
justice. (How, after all, could I
otherwise sustain my insistence that even the European legal systems we
conventionally call ?inquisitorial? are solidly adversary in my sense of the
word?)
So what, then, does Woolley?s disagreement with my view
consist in? I suspect that the answer is
this: Whereas I think that the genetic
structure, as I call it, of the law governing adversary lawyering is determined
by its client-centered ideals, Woolley thinks that the law?s justice-centered
ideals are as ?salient? (to use her word) as the ideals that I emphasize. To understand why we have such different
instincts in this area, one must (I suspect) inquire more deeply into our
respective views about the nature of morals and politics quite generally, since
these are the practices against which adversary advocacy must be identified, as
figure to ground, and then evaluated. I
can?t, of course, speak for Woolley in this respect, but I can (I think)
briefly explain, as it were, where I?m coming from.
I begin from the thought (as I put it in the book) that the
bedrock commitments of modern ethical and political life are egalitarian and
impartial. Each person must judge and
act in a fashion that respects the fundamental equality of all persons ? the
idea that it is as important for any life to go well as for any other ? and
political institutions, and legal systems, must be arranged in a fashion that
respects this idea. Therefore it is not
surprising, or in any way distinguishing, that adversary lawyers may not ignore
these commitments. And the natural (even
obvious) way for lawyers to respect impartiality is to owe duties to the courts
that give that ideal its institutional embodiment and, moreover, to come under
a duty directly to promote truth and justice (which are just the particular
expression that impartiality takes on in the context of retail dispute
resolution). The court-centered features
of the law governing lawyers are therefore not distinctively lawyerly. They do not distinguish lawyering from any
other profession or lawyers from any other citizens, in a deep way. They are, rather, just the lawyerly version
of commitments that lawyers share with all persons (at least, with all modern
persons).
This means that if the positive law contained only the
justice-centered ideals it would not be in any deep way a distinctive thing at
all. (And not being anything
distinctive, it could not have any salient properties, in Woolley?s sense, that
is, properties without which it ?could not be recognizable as what it
is.?) The client-centered features of
the positive law are salient for me not because they have no counter-balance
but rather because they have any weight in the professional obligations of
lawyers at all. The genetic structure of
adversary advocacy just is that the profession requires its members to display
forms of partiality that ordinary persons may not display: that, as I say in the book?s first pages,
lawyers (unlike juries and judges) do not pursue truth and justice
single-mindedly but instead (also) serve clients.
In a way, then, I agree even with Woolley?s claim that the
salient feature of adversary lawyering ?is that the balance is drawn? between
court-centered and client-centered ideals, although I?d put the point a little
different. Specifically, the salient
feature of adversary advocacy is that it puts some rather than zero weight on
the side of client-centered ideals (this weight is what requires the balance to
be drawn). Or, as I put it in the book,
that it insists on the structural separation between advocate and tribunal,
where this is just an expression of the fact that advocates, but not tribunals
(or indeed any other citizens or institutions), owe special duties to
clients. These duties take adversary
lawyers out of their moral zone of comfort, at least insofar as they draw their
morality from modern, egalitarian sources.
The non-interpretive two thirds of the book try to draw out the moral
and political entailments of this discomfort.
They ask, that is, what it is like ethically to practice law outside of
the moral comfort zone and what political values are served by placing such an
ethically uncomfortable profession at the center of the administration of
justice.
Woolley?s second post seems to me less true to the book?s
sensibilities. To begin with, I want to
be very clear that the book is NOT romantic about the bar?s homogenous and
hence exclusionary past. I have no wish
? none at all ? to return to the age in which the bar answered only to its own
and its own were all white men. How could
I possibly, given that (as I?ve just observed) I set out from a commitment to
egalitarianism that is so strong that it makes the adversary advocate?s
departure from impartiality (even when balanced by the lawyer?s duties to the
court) the book?s central problem? It is
not just a good thing, but necessary to justice and political legitimacy, that
the modern state has broken down the old bar?s exclusionary structures,
rendering the modern legal profession (as I say in the book) cosmopolitan
rather than insular. There is simply no
other way to read the book than as insisting on these points.
But a troubling question nevertheless remains. Impartiality is imperative for persons
because we can apprehend universals and so are answerable to them. But persons are not themselves anything but
finite: each person must judge and act
from the contingent and distinctive places that are, for her, ?here.? This introduces two basic problems into
persons? practical lives. First,
individually, persons must find a way to square their needs to make sense of
themselves in their contingent particularities with their being answerable to
universals. Second, collectively,
persons must find a way to bridge the perspectival gaps that arise because each
of them, inevitably, sees the world from where she stands. The last two thirds of the book take up these
problems for the case of lawyers ? they ask how, using the philosophical,
cultural, and political resources that we possess, persons who have only
imperfect access to the universal can sustain lives that are, severally and
jointly, whole in the face of modernity?s insistent press towards
impartiality. (In this respect, the book
approaches the case of lawyers as an illustration of the broader ethical and
political problems of modernity.) The
answer simply cannot be whole-heartedly or single-mindedly to embrace the
universal, that is, to pursue justice (it ?cannot be? in the literal sense that
this answer is not available to finite creatures). Nor can it be to take a turn to lawyers?
craft sense, which would give lawyers a special authority at odds with
impartiality and therefore is (from the perspective of universal morality) the
most backward looking of any of the suggestions on the table.
To be sure, the universal matters, and so we may cheer when
lawyers, such as those in Pakistan,
display heroism in the service of justice.
And we may boo, when lawyers, such as John Yoo, fall short of not just
ideal justice but also every reasonable approximation to it. But for lawyers these must remain exceptional
cases, because lawyers live their ordinary professional lives in the
in-between, where they cannot ignore justice but also must honor a particular
set of client-centered commitments that draw them away from justice. The book, having described the genetic
structure (or ?salient? features) of this in-between, seeks to place it in
moral and political context.
Understanding the book?s argument in this way reveals its
basic modesty and casts this modestly as distinctively lawyerly. This lawyerly modesty is perhaps best
captured by words Robert Bolt once put in the mouth of Thomas More, who was, it
bears remembering, in essence a lawyer, although he was otherwise famous:
God made the angels to show Him splendour ? as He made animals for innocence and
plants for their simplicity. But Man He
made to serve Him wittily, in the tangle of his mind. If He suffers us to fall to such a case that
there is no scaping, then we may stand to our tackle as best we can, and yes, .
. . then we may clamour like champions ? if we have the spittle for it. And no doubt it delights Got to see splendour
where He only looked for complexity. But
it?s God?s part, not our own, to bring ourselves to that extremity. Our natural business lies in escaping ? so
let?s get home and study this Bill.
The book tries to elaborate the case in which we lawyers
(and really all our modern fellows as well) find ourselves and then, having
done so, to set out possible avenues of escape.
Daniel Markovits
