In his important new book, What It Means to Be Human, Carter Snead critiques expressive individualism through the lens of our embodiment and mutual dependence. He focuses on issues of bioethics – abortion, assisted reproduction, and end-of-life concerns – and explains how “the virtues of acknowledged dependence” might be a corrective to the paradigm of the self-determining and self-sufficient individual.
Snead looks to parenthood as the most powerful example of practices that “draw one’s gaze from inside toward the outside,” or as Michael Sandel described parenthood, as a “school of humility.” Underscoring the “radical reorientation of one’s perspective as a parent,” Snead cites Steven Spielberg:
At the conclusion of his film Close Encounters of the Third Kind, Steven Spielberg’s protagonist leaves his family to join the aliens on their spacecraft to pursue his lifelong dream and obsession. In a documentary on the making of the film, Spielberg observed that he wrote this ending before he became a parent and “would never have made Close Encounters the way I made it in ’77, because I have a family that I would never leave.”
How does “acknowledged dependence” shape our understanding of the lawyer’s role? Do we approach clients as pre-parenthood Spielbergs? Under the traditional view, the lawyer serves the client’s legal interests and suspends her own moral judgment regarding the client’s underlying goals. Expressive individualism may find no stronger champion than Lord Brougham, for example, who famously remarked to the House of Lords in 1820 that an advocate “knows but one person in all the world, and that person is his client,” and that “to save that client by all means and expedients, and at all hazards and costs to other persons . . . is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others.”
Today there is no shortage of examples of lawyers defining their clients’ interests as though they are self-defining, self-sufficient, fully autonomous beings. From Enron’s counsel, to lawyers defending the Church from sexual abuse suits, to the Trump campaign’s lawyers lobbing wild accusations about conspiracies to steal the election, the profession could benefit from an immersion in the work of Sandel, Alasdair MacIntyre, Charles Taylor, and Snead.
Not that the work of translation hasn’t been going on. Tom Shaffer, most notably, spent decades bringing the insights of an authentic anthropology to legal ethics conversations, as has David Luban, among others. But it’s still an uphill climb. In public bioethics debates, we fear any curtailment of expressive individualism, and in legal ethics, that fear is magnified because the lawyer is the agent, not the principal. So we make assumptions about the client’s stance toward the broader world without ever unpacking those assumptions or inviting the client’s reflection on their substance. Perhaps the client will jump aboard the expressive individualism train wholeheartedly, in which case the attorney must either come along for the ride or resign. But it’s a conversation worth having.
Facing the fact of our mutual dependence matters well beyond our debates over bioethics, and Carter Snead has provided a very important nudge to reflect on the assumptions that shape legal practice.