Optional reading: Mark Hansen, “The Toughest Call,” ABA Journal, August 2007, URL = < http://www.abajournal.com/magazine/article/the_toughest_call/ >, a short, recent article about Armani and Belge, the lawyers in the Lake Pleasant Bodies Case.
[3.] Lawyers and Role-Defined Morality.
The next two readings are by Richard Wasserstrom, Professor Emeritus of Philosophy at the University of California—Santa Cruz.
In each reading, Wasserstrom considers whether professional roles, including the role of lawyer, make a difference with regard to the moral obligations and rights of the people who occupy them.
As we have seen, Michael Milde has argued that if legal positivism is true, there is a difference between the moral rights and obligations of lawyers and those of non-lawyers, but if natural law theory is true, then there is no such difference—what a person is obligated to do qua lawyer is the same as she is obligated to do qua human being.
We will now consider, apart from the debate between legal positivism and natural law theory, whether occupying the role of lawyer makes a significant difference in what morality allows or requires a person to do.
[3.1.] “Lawyers as Professionals: Some Moral Issues” (1975-76).
Wasserstrom considers “two moral criticisms of lawyers”:
1. A criticism of the lawyer’s relationship with other human beings in general: “[T]he lawyer-client relationship renders the lawyer at best systematically amoral and at worst more than occasionally immoral in his or her dealings with the rest of mankind.” (1)
2. A criticism of the lawyer’s relationship with her client: “[T]he lawyer-client relationship ... is morally objectionable because it is a relationship in which the lawyer dominates and in which the lawyer typically, and perhaps inevitably, treats the client in both an impersonal and a paternalistic fashion.” (1)
paternalism (df..): the practice of treating someone as if she were a child and you were her parent, i.e., treating her as if she is not capable of taking responsibility for herself and making her own decisions. [from the Latin pater, “father”]
To treat someone in an overly paternalistic way is to deny her autonomy:
autonomy (df.): the capacity for self-governance, especially for making important decisions for oneself. [from Greek auto (“self”) and nomos (“rule”)]
[We will consider this criticism next time.]
Both criticisms arise because the lawyer is a professional.
As this implies, some of what Wasserstrom has to say with regard to these two criticisms will apply to other professionals, especially physicians.
But other claims he makes will be specific to lawyers, since in some ways the lawyer’s situation is different from that of other professionals.
Wasserstrom says he “is undecided about the ultimate merits of either criticism.” (2) So he is not fully convinced that either criticism actually works. The goal of the paper is “to exhibit the relevant considerations and to stimulate additional reflection” (2).
[3.1.1.] Professionals and Professions.
In an important footnote (n.1, pp.1-2), Wasserstrom clarifies the sense in which he is using the word “professional.” In doing so, he makes a distinction between two senses of the word:
professional (broad sense): “a person who possesses sufficient skill to engage in an activity for money and who elects to do so.” In this sense, there are professional athletes, professional actors, and professional hairstylists; lawyers and doctors are professionals in this sense, too.
professional (narrow sense): this is not as easy to define, although lawyers and doctors (and I would add: college professors and members of the clergy) are definitely included, and actors, athletes and hairstylists are not. Wasserstrom gives six characteristics of the professions [see note 1, pp.1-2]. Any occupation that has all six of these is a profession, and anyone working within it is a professional in the narrow sense:
1. The professions require a substantial period of formal education—at least as much if not more than required by any other occupation.
2. The professions require the comprehension of a substantial amount of theoretical knowledge and the utilization of a substantial amount of intellectual ability. Neither manual nor creative ability is typically demanded. ...
3. The professions are both an economic monopoly and largely self-regulating. Not only is the practice of the professions restricted to those who are certified as possessing the requisite competencies, but the question of what competencies are required and who possesses them are questions that are left to the members of the professions to decide for themselves.
4. The professions are clearly among the occupations that possess the greatest social prestige in the society. They also typically provide a degree of material affluence substantially greater than that enjoyed by most working persons.
5. The professions are almost always involved with matters which from time to time are among the greatest personal concerns that human beings have: physical health, psychic well-being, liberty, and the like. As a result, persons who seek the services of a professional are often in a state of appreciable concern, if not vulnerability, when they do so.
6. The professions almost always involve at their core a significant interpersonal relationship between the professional, on the one hand, and the person who is thought to require the professional's services: the patient or the client. (p.2, n.1)
[3.1.2.] Role-Differentiated Behavior.
Both the professional (be she a lawyer, doctor, or some other sort of professional) and the client/patient engage in role-differentiated behavior (RDB), behavior that is specific to persons who occupy a particular social role.
What Wasserstrom takes to be important about RDB is that it “often makes it both appropriate and desirable for the person in a particular role to put to one side considerations of various sorts—and especially various moral considerations—that would otherwise be relevant if not decisive.” (3)
In other words, when an individual engages in RDB, she is often justified in ignoring specific facts and moral ideas that she would not be justified in ignoring were she not engaged in that RDB. RDB “often alters, if not eliminates, the significance of those moral considerations that would obtain, were it not for the presence of the role.” (4)
Examples of social roles that require RDB (4):
· being a parent;
· being a scientist.
According to Wasserstrom, “the burden of proof ... is always upon the proponent of the desirability of this kind of role-differentiated behavior.” (5) [see the continuation of this passage-- (1) is he assuming a utilitarian framework that requires impartiality / equal consideration of all who could be affected by one’s actions? (2) how plausible is what he says about parents? how might the allegedly excessive degree to which parents in our culture promote the well-being of their children over others in our society be justified?]
Stopping point for Friday August 27. For next time, finish reading Wasserstrom's "Lawyers as Professionals: Some Moral Issues" (pp.15-24). As you read this material, think about whether any of the points Wasserstrom makes about the relationship between a lawyer and her clients might be true of the relationship between a college professor and his students.
This page last updated 8/27/2010.
Copyright © 2010 Robert Lane. All rights reserved.