Charles Silver of the University of Texas has posted a review, on Notre Dame Philosophy Reviews, of David Luban's new book, Legal Ethics and Human Dignity. Luban's book has already attracted a great deal of attention, including a review symposium in the Cornell Law Review, a conference at Georgetown, and of course this high-profile notice on this blog. There are a number of themes developed in the book, and reviewers have agreed and disagreed with different bits of the book. But I think Silver is not quite right about an important piece of Luban's argument. Luban can obviously speak for himself (and frequently does so, over on Balkinization), but Silver's critique reveals an important theoretical problem that is worth throwing out there for readers to consider. (This is something I'm working up for an upcoming lecture, so this post is also a precis of a half-baked work in progress.)
Silver charges Luban with exaggerating the connection between the legal profession and the rule of law. He cites Luban's statement that lawyers are "a necessary precondition" for the rule of law, and then notes that it is possible to maintain order, to a significant extent, without lawyers. That's a familiar enough point (law geeks will inevitably think of Shasta County, California), but I think it's a misreading of Luban's project. My take on what Luban is all about is that he's arguing that the normative attractiveness of the legal profession -- both from the point of view of society (why have an occupational group called lawyers?) and from the point of view of individual lawyers (what is the moral worth of my life's work?) -- depends to a significant extent on the values underlying the rule of law. The rule of law is a contested concept, of course, but the core of the concept is well described by Joseph Raz: "Government by law and not by men is not a tautology if 'law' means general, open, and relatively stable law." Some philosophers add criteria, as in Fuller's famous list of eight ways in which a legal system can go awry, and some insist on adding substantive justice as an element of the rule of law (as in a recent lecture by the Lord Chief Justice of England and Wales). But the core evaluative notion is that the concept of the rule of law sets limitations on what counts as a law.
One of the ideas Luban explores in his book is that the rule of law sets limitations not just on the content of law (e.g. as Raz argues, all laws must be prospective, open, and clear), but on the activity of lawyering. The most original part of the book, in my view, is the chapter on Lon Fuller, entitled "Natural law as professional ethics." Here Luban argues that (1) the rule of law establishes a moral relationship between those who govern and those whom they govern (p. 99); (2) this relationship establishes moral constraints on the actions of lawmakers and law-administrators (pp. 100, 102-03); and (3) the ethics of lawyers should be understood in terms of their role as "architects of social structure" (p. 104).
Silver reads this as an argument that lawyers are necessary as architects of social structure, but I don't think that is Luban's point at all. His point, as I read it, is that the moral attractiveness of the lawyer's role has to be understood in terms of its contribution to a morally worthy relationship between rulers and subjects. That is, there are better and worse ways of governing people, and legal governance is better, for various instrumental and non-instrumetal reasons, than the alternative such as governing by managerial directives (p. 110). For one thing, legal governance presupposes a distinction between raw power (de facto authority) and legitimate authority. "Because I can" does not count as a justification for the use of power, if we take the rule of law seriously. As Luban reads Fuller, "governing the conduct of others through law rather than managerial direction is . . . a morally freighted choice [because] it implies a certain built-in respect for the human dignity of those subject to the law" (p. 110). Thus there is a connection between human dignity, the rule of law, and the ethics of the lawyer's role.
What does this imply for lawyers? Silver accuses Luban at several places of being naive, which seems like just another way of saying a philosopher and not a lawyer. But I think this book shows a great deal of sympathy for the lawyer's point of view, and a remarkable ability for someone not trained as a lawyer to understand what works and doesn't work in legal argumentation. The chapter on the torture memos makes the argument, which I have made as well, that the ethical problem with the torture memos is that they are examples of bad lawyering craft. Yes, torture is bad, but the specific ethical wrongdoing committed by lawyers who advise on torture (as opposed to people like Donald Rumsfeld who advocated for and implemented policies) is related to the lack of a legal justification for the positions they took in their memos. In other words, the lawyers did not sufficiently respect the distinction between "because I can" and the lawful exercise of power. Silver laughs at Luban ("[t]his merits a guffaw") for suggesting that lawyers have an ethical obligation to provide candid legal advice, but this is only laughable in light of Silver's conception of legal ethics as fundamentally a matter of the bar's self-regulation ("[m]any subjects [in Luban's book] have little to do with conventional legal ethics"). But Luban's point is not that the ABA, a private organization has authority to set regulatory standards for government lawyers. (Luban knows the difference between government and a trade association.) Rather, it is that Model Rule 2.1 states a moral ideal to which lawyers ought to aspire or, more strongly, it states an ethical obligation for lawyers that arises from the foundational normative commitments of the role.
At its foundation, lawyering is about the morally freighted choice to govern by legal means, rather than by command-and-control directives. The significance of this choice is related to the human dignity of the subjects of law. Legal ethics is thus informed by the morality of governing -- political ethics, as I have argued, as distinct from the ethics of ordinary moral life. Silver says he would like more analysis of concrete problems and less philosophizing, and I suppose that is his prerogative, but to the extent a lawyer is thinking about why her professional life is worthy of respect from a moral point of view, this is a powerful answer that deserves to be taken seriously. And, in practical terms, it may make a significant difference. Silver argues that "laws, regulations, and professional norms have limited power to constrain highly placed officials who are bent on circumventing them." To a large extent, that may be a self-fulfilling prophesy. If lawyers think legality and the rule of law is a sham, nothing more than a mask for the exercise of raw power, then they will agree with Silver that laws have no power to constrain. But there are lawyers who take the rule of law seriously, and have refused to approve the actions of highly placed officials bent on circumventing the law. Jack Goldsmith is one example, and Marty Lederman had an excellent post a couple of days ago on Dan Levin, another lawyer in the Office of Legal Counsel who refused to provide legal cover for the Bush administration's torture policies. These are examples of lawyers who believe that laws do have the power to constrain. Surely there is something practical and important in a conception of legal ethics that can differentiate between the lawyering of Dan Levin and John Yoo.