[11.3.4.] The Amoral Role and Legal Realism.

 

Pepper goes on to consider another possible problem for his view (that is, for the view that it is morally good for lawyers to behave amorally).

 

 

[11.3.4.1.] Legal Formalism vs. Legal Realism.

 

The problem centers around a view about legal reasoning called legal realism. To understand it fully, we need to contrast it with another, very different theory about legal reasoning, called legal formalism:

 

Legal Formalism

·         Law is “a rational, logical system. A formalist judge makes decisions deductively—that is, by drawing conclusions from premises according to formal rules of reasoning.” In deciding cases, judges are “reinforcing and uncovering fundamental legal rules and principles.”[1]

·         “[J]udges never make new law … despite superficial appearances to the contrary, judges never determine what the law shall be. Judges are confined to saying what they believe the law consisted in before their decision, which is the mere application of it.”[2]

 

Legal Realism

·         Law is “an all-too-human activity. Realists find judges making pragmatic, and often illogical, decisions.” “[J]udges do not merely consult legal rules, but actually find legal rules that suit their interests.”[3]

·         On this view judges cannot “avoid taking account of public opinion and acknowledging the realities of the administration of criminal law.” (p.57)

 

Pepper calls to mind legal formalism (although he does not refer to it explicitly) when he says that, up to this point in his article,

 

[t]he implication has been that the law is existent and determinable, that there is “something there” for the lawyer to find (or know) and communicate to the client. The “thereness” of the law is also the assumption underlying the commonly understood limit on the amoral role: the lawyer can only assist the client “within the bounds of the law.” (624)

 

But this is not the way that today most legal scholars, including those who teach in contemporary law schools, think about the law. Most of them believe something much closer to legal realism and thus accept “the notion of law as a prediction of what human officials will do, more than as an existent, objective, determinable limit or boundary on client behavior.” (625)

 

 

[11.3.4.2.] Holmes’ Early Legal Realism.

 

Here Pepper is alluding to the so-called prediction theory of law put forward by Oliver Wendall Holmes, Jr.[4]:

 

When we study law we are not studying a mystery but a well-known profession. We are studying what we shall want in order to appear before judges, or to advise people in such a way as to keep them out of court. The reason why it is a profession, why people will pay lawyers to argue for them or to advise them, is that in societies like ours the command of the public force is intrusted to the judges in certain cases, and the whole power of the state will be put forth, if necessary, to carry out their judgments and decrees. People want to know under what circumstances and how far they will run the risk of coming against what is so much stronger than themselves, and hence it becomes a business to find out when this danger is to be feared. The object of our study, then, is prediction, the prediction of the incidence of the public force through the instrumentality of the courts.[5]

 

He also refers to Holmes’s so-called bad-man account of the law. Says Pepper:

 

            The apt image is that of Holmes’s “bad man.” The modern lawyer is taught to look at the law as the “bad man” would, who “cares only for the material consequences.” The lawyer discovers and conveys “the law” to his client from this perspective and then is told to limit his own assistance to the client based upon this same view of the law. (625)

 

Holmes himself expressed the idea as follows:

 

You can see very plainly that a bad man has as much reason as a good one for wishing to avoid an encounter with the public force, and therefore you can see the practical importance of the distinction between morality and law. A man who cares nothing for an ethical rule which is believed and practised by his neighbors is likely nevertheless to care a good deal to avoid being made to pay money, and will want to keep out of jail if he can.

... If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.[6]

 

One of Pepper’s examples: modern contract law views “breach of contract as a ‘right’ that is subject to the ‘cost’ of damages,” and thus completely eliminates any normative content from the notion of contract, such as the idea that a contract is a sort of promise.

 

 

[11.3.4.3.] Consequences of Combining Realism and the Amoral Role.

 

... most clients, most of the time, (1) will enter the lawyer’s office thinking of law as more normative and more certain than does the lawyer, and (2) will go out having been influenced toward thinking of the law in terms of possible or probable costs more than they would have had they not consulted a lawyer. (626)

 

Since lawyers and judges themselves think about the law in this more realistic way, it is good for clients to think about it this way, since this can only enhance their “fully informed access to the law.” (626) This sort of enhancement is clearly a good thing.

 

But there is also a drawback, perhaps a serious one, of combining moral realism with the amoral role of the attorney. Pepper lays out the explanation of drawback in the following steps (626):

 

1. the amoral role: “the lawyer is to be an amoral technician who serves rather than judges the client.”

 

2. legal realism: “the law itself, as presented by the lawyer, also is not a source of moral limits ... it is presented from the lawyer’s technical, manipulative stance as a potential constraint, as a problem, or as data to be factored into decisions as to future conduct.”

 

3. the amoral role: “in determining how far he or she can go in helping the client, the lawyer is instructed to look to that same uncertain, manipulable source: ‘the law.’”

 

4. legal realism: “‘Within the bounds of the law’ sounds like an objective, knowable moral guide. Any second-year law student knows that as to any but the most obvious (and therefore uninteresting) questions, there will probably be no clear line, no boundary, but only a series of possibilities.”

 

conclusion: “if one combines the dominant ‘legal realism’ understanding of law with the traditional amoral role of the lawyer, there is no moral input or constraint in the present model of the lawyer-client relationship.”

 

Prima facie, this might seem to be an acceptable consequence for Pepper. After all, he has been arguing that the client ought to be the source of his or her own moral constraints, and that the lawyer should not impose any such constraints on the client. All that the above considerations do is make explicit that the law itself is not necessarily a source of such considerations, either.

 

But this will be a problem when the client herself has weak internal or external moral guidance: “If one cannot rely on the client or an alternative social institution to provide [a moral] guide, to suggest a moral restraint on that which is legally available, then what the lawyer does may be evil: lawyers in the aggregate may consistently guide clients away from moral conduct and restraint.” (627)

 

Example: a manufacturing plant consults a lawyer to learn about laws governing the permissible level of ammonia in the plant’s effluent. (see pp.627-28)

 

 

[11.3.4.] A Possible Solution: Moral Dialogue.

 

Pepper considers a number of possible solutions to this problem, but there is one that he is especially in favor of: moral dialogue, which “emphasizes the utility of wide-ranging communication between the lawyer and client.” (630)

 

·         The lawyer continues to fully inform her client about the relevant laws, penalties and other consequences, etc.

·         But the lawyer adds to this purely legal advice her own moral advice. In addition to the professional role of lawyer, the attorney also takes on “the moral role of moral educator.”

·         An open moral dialogue might also result in the lawyer having a deeper understanding of the client’s goals and the means that the client would be willing to tolerate in order to reach them. In other words, it will help to “draw out and actualize” the moral guidance with which the client is in fact equipped (limited though it might be). (631)

 

Example: cross-examining a truthful opposing witness to discredit her testimony (cf. Freedman’s example of the elderly witness with poor eyesight). The defendant might in fact disapprove of this tactic, and the lawyer might find out about this only if she describes to the client the tactic and her own moral problems with it.

 

Drawbacks of the moral dialogue approach:

 

1. expense (see p.631)

 

2. variable client receptivity (see p.632)

 

“[B]oth limits suggest there will be a spectrum of the kinds of legal practice for which the moral dialogue ethic is suitable or possible.” (632)

 

Pepper also notes that in extreme cases, the lawyer may be justified in acting as a conscientious objector, refusing to remain within the amoral role and elevate the client’s interests above all other moral considerations. (Example: the Lake Pleasant Bodies Case, as strengthened by Pepper: p.633.)

 

 

Stopping point for Monday April 27. This is the end of the material that will be covered on your final exam. Our next class will be devoted to reviewing for the final, so come prepared to ask any questions you may have, Attendance is optional.