Ethics and Legal Theory: A Primer

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I asked the Campbell Law Observer if I could write for them, and Adam Steele, the Editor-in-Chief, graciously agreed to allow me to write an occasional essay.  In the future I will focus on law, ethics, and technology.  In this inaugural essay, however, I would like to introduce two things that I study: ethics and legal theory.  There is a substantial confusion today about how these two fields of study are related, so I hope that this primer will bring some clarity.  It should be a useful guide for students who want to understand the discipline of legal theory and for anyone who wants to understand what legal education is really all about.

I was initiated into the scholarship of ethics during my graduate studies at the Divinity School of The University of Chicago.  I took comprehensive doctoral examinations in philosophical ethics and theological ethics, among several other topics.  At the outset, you should know that the academic study of ethics bears little in common with the Rules of Professional Responsibility, even though that class is sometimes called “Legal Ethics.”  The professional disciplinary rules set the outer boundaries of acceptable behavior.  They do not deeply question the accepted normative standards of the profession.  For this reason, the rules sometimes seem coldly distant from day-to-day realities.

The job of the ethicist is to question the accepted presuppositions of moral reasoning.

The job of the ethicist is to question the accepted presuppositions of moral reasoning. The field of ethics inquires into the most practical question at the most basic level: “What ought I to do?”  This question implicates inquiry into specific types of activities and institutions, like law.  So, ethicists are also concerned with questions such as “What is law?”; “What is justice?”; “Can the law be truly just?”; “How does the law serve the common good?”; “Why ought one obey the law?”; and so on.

Moral reasoning was a part of law until about a hundred years ago.  In classical thought, Aristotle’s Nichomachean Ethics understood moral reasoning by asking what the purpose of life might be (he used the Greek word, “telos” which means “purpose”).   Aristotle rejected claims that the best life for human beings is the life spent pursuing fame or power or wealth.  For him, the life of reason is the best life for human beings. Since humans are the only creatures capable of reason, humans achieve their distinctive fulfillment by acting rationally.  He contends that ethics and law are prescriptions for habituating people so that they can act according to reason.

The natural law theories of Justice Scalia and Justice Thomas typically draw from some fixed conception of a fulfilled human life.

Other classical ethicists disagreed.  Christians looked to “beatitude” as the most distinctively human purpose.  Beatitude is not acting on reason alone, but reason operating within the context of faith.  There have been many attempts by Christians over the centuries to understand the relationship between faith and reason, but the general strategy of looking for a goal or purpose to human life has remained a common way to do moral reasoning.  The natural law theories of Justice Scalia and Justice Thomas typically draw from some fixed conception of a fulfilled human life.  Both Scalia and Thomas have been influenced by John Finnis, whose major work is a book titled The Natural Law and Natural Rights (1980).

I do not cite to Aristotle or the others in order to affirm their conclusions.  In fact, modern philosophy has tended to reject the idea of fixed prescriptions for a fulfilled human life.  The influential contemporary liberal theorists, John Rawls and Ronald Dworkin, for example, believed that reason imposes duties on persons as rational creatures.  At a minimum, reason requires that persons living together treat each other with equality and respect for each other’s self-sovereignty.  It would be irrational to do otherwise.  Those critics of contemporary liberalism called “communitarians”—Michael Sandel, for example—say that liberals deny the important role that community plays in shaping reason.  They claim that, as Aristotle believed, humans need to be habituated by law in order to be rational at all.  To them, the liberal “self” is audacious and selfish.

Law and moral theory were further separated in the twentieth century through the development of legal positivism, which views law as absolutely separate from moral norms.  Justice Oliver Wendell Holmes Jr., one of the most articulate early positivists, quoted Jeremy Bentham, saying, “Natural Law is nonsense on stilts.”  Positivism emerged as a full-fledged legal theory with the movement known as legal formalism, which is associated with Harvard Law School and its dean, Christopher Columbus Langdell.  Although Langdellian Formalism passed quickly, legal positivism grew in influence and found its fullest expression in H. L. A. Hart’s The Concept of Law (1961).

Many legal scholars share in believing that law is intimately tied to moral norms and presuppositions about human nature.

Today legal positivism is widely accepted, and new forms of it are emerging. Nonetheless, many theorists, like University of Chicago’s Brian Leiter, believe that Hart’s thought and linguistic philosophy in general are now passé.  Recent works argue for a renewal of the connection between moral reasoning and law.  “Normative jurisprudence” is the term for this renewal.  It has liberal advocates like Robin West and the new Legal Process theories associated with Justice Ginsberg and legal theorists like Bruce Ackerman, Robert Cover, John Hart Ely, and Harold Koh.  There are also groups like the “Law and Society” movement, which seeks to understand law as a societal phenomenon, and Law and Humanities, which considers the relationship between law and literature, art, and (even) music.  Today many legal scholars share in believing that law is intimately tied to moral norms and presuppositions about human nature.

It is here that some Christian wisdom might enter the picture.  There are some profound insights into the relationship between law and ethics that can be found in the writings of C. S. Lewis, one of the greatest twentieth century popular theologians.  Lewis is best known today for his children’s books about the kingdom of “Narnia” that were made into major movies.  But beyond children’s literature, Lewis wrote popular Christian inspirational works.  One of my favorites is an allegorical piece called the Screwtape Letters (1942), in which a seasoned demon named Wormwood teaches a young acolyte named Screwtape the tricks of the trade for perverting souls and seducing the unwary. At one point, Wormwood advises Screwtape that the greatest offense to God occurs when an innocent soul is convinced to worship something other than God, something whose existence is held in doubt.  The spiritual illness of worshipping an idol that one does not even believe to exist is the deepest form of despair to which a human soul might fall victim.  Lewis’ satirical allegory captures something profoundly accurate in contemporary culture.

Our legal institutions evidence a deeply self-absorbed society that is devoted to personal self-satisfaction.

Self-worship is the idol of contemporary culture.  As Harvard law professor Mary Ann Glendon argued in her book, Rights Talk (1991), our legal institutions evidence a deeply self-absorbed society that is devoted to personal self-satisfaction.  We can see this in our obsessive concern with celebrity, appearance, career, wealth, prestige, and power.  In contemporary liberalism, the basic idea of individual rights has come to mean that persons can create their own human nature.

This idolatrous and hubristic exaltation of the individual was memorably manifested by Justice Kennedy in the abortion case, Casey v. Planned Parenthood, 505 US 833 (1992), where he wrote, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life….”  In this well known “mystery clause,” Kennedy audaciously asserts the liberal presumption that individual human beings are self-defining and in fact that each person is the creator of all that has meaning in their life. We choose who we are; responsibilities to family, community, church, and country be damned.  What is meaningful in a human life is one’s own sovereign desires, and nothing else.  Lewis would say that we readily worship these false idols of “self” over the God who created us with purpose: to love one another.

Ironically, at the same time our culture seems increasingly to doubt the existence of the “self” it idolizes.  More precisely, we doubt that human beings are capable of being responsible moral agents.  In recent years we have witnessed the decline of the concept of “personal responsibility” by claims that actions result from external causes that explain human behavior.  Rather than holding someone responsible for their actions, we find cunning lawyers arguing that their clients are helpless victims of circumstance. This trend is clearly evident in criminal law; there are many examples of attempts to avoid guilt by blaming criminal action on a person’s social or physical environment or compulsive psychological state.  Some recent trends in jurisprudence look to legal agents as following predictable patterns of behavior determined by “social forces.” (Harvard Law School started a blog called “The Situationist” to promote this approach). One might also consider Law and Economics to fit into this category, since it looks at the “self” as an economic agent whose actions are determined by market forces.  Belief in a self-sovereign, morally responsible agent, possessing free will, is fading from our common culture, even while we increasingly celebrate the choices we make.

It allows those who enjoy better lives to feel morally superior to those who have less by denying that the poor and weak are also autonomous “selves” with the dignity that comes with reason, free will, and effectiveness in the world.

This is not to say that socio-economic factors are unimportant.  But to reduce a person simply to an outcome of their environment is an offense to human dignity.  It allows those who enjoy better lives to feel morally superior to those who have less by denying that the poor and weak are also autonomous “selves” with the dignity that comes with reason, free will, and effectiveness in the world.  This devalues the person, making him or her a mere reactive system without the distinct mystery that Christians have typically associated with the image of God (imagio dei) borne by all persons.  In another work, The Abolition of Man, Lewis wrote of modern social thought as creating “men without chests,” a phrase he uses to describe the heartless view that modernity takes of human beings: Men without chests have no heart.  They are automata, easily manipulated at the whims of experts.

The problem that Lewis picks out is not only a theological problem; it is also a human problem.  If human beings want to live coherent lives they must engage the questions that Lewis poses: How do our values join together in a coherent life?  How does self-expression “fit” with personal responsibility and personal integrity?  What values and principles might guide us in forming coherent thoughts about a well-lived life?  What ought we to do?  These are questions that every serious, mature adult should ask.  We need to study ethics now more than ever because when we do we seek answers to the questions about how to live as mature, rational, and coherent persons.

Theoretical reasoning is in short supply.  As our society has become more consumerist, it has become less reflective.

Law school students clearly benefit from learning about ethics and legal theory.  This was once the commonplace understanding of legal education, but it is an idea that is being lost as many legal educators disturbingly have come to look at their students as “products” to be sold to employers.  Do not be mistaken.  There is substantial commercial value to theoretical education.  Since theorists seek to answer foundational questions in the broadest terms, the grammar and syntax of their discourse is abstract and subtle.  As the contemporary legal system has become increasingly complex and abstract, successful lawyers must think abstractly and subtly.  The lawyer in the contemporary globalized and networked society will benefit from honing the skills of abstract reasoning, which is why philosophers tend to do very well in law school and earn more over the course of their careers.

Theoretical reasoning is in short supply.  As our society has become more consumerist, it has become less reflective.  Many people now avoid thinking too deeply about the meaning of their life and their work.  They reject thinking about ethics by saying that theoretical studies are impractical.  But, this is a jejune fantasy; it is no more than a Peter Pan-like rejection of growing up by people who are held hostage to their puerile self-idolatry.  Too many students do not want to face the serious, adult challenge of genuinely asking, “What makes my life meaningful?”; “Why am I in law school?”; “Am I becoming a better person?”  Asking questions like these requires acknowledging that we have responsibilities to others (sometimes burdensome ones).  It is daunting, but genuine human freedom is possible only when we freely take on our responsibilities.

For morally serious educators, particularly if they are Christians, the task of legal education can never be simply to train commercially exploitable practitioners.  Students are never merely products to be sold.  It is reprehensible to view students in this way since it treats them a means to the ends of others.  Law, after all, doesn’t exist for law schools or lawyers or judges.  It exists so that everyone can live better lives.  Judge John T. Noonan, of the Ninth Circuit Court of Appeals wrote a short book, Persons and the Masks of the Law (1975) that contains some wise words, which are a coda for this primer:

[T]he persons who are engaged in legal . . . education, are or should be concerned with law not as a set of technical skills which may be put to any use but as a human activity affecting both those acting and those enduring their actions…. The central problem, I think, of the legal enterprise is the relation of love to power. We can often apply force to those we do not see, but we cannot, I think, love them. Only in the response of person to person can Augustine’s sublime fusion be achieved, in which justice is defined as “love serving only the one loved.” (xix-xx)