Legal Ethics and Human Dignity

David Luban

As readers of balkinization can see from the strip at the right, my book Legal Ethics and Human Dignity is now available from Cambridge University Press. It’s a collection of thematically-linked essays – two-thirds revisions of previously published work, but about a third new material.

For readers of balkinization’s “Anti-Torture Memos,” the most interesting chapter will likely be the hitherto-unpublished chapter 5, “The Torture Lawyers of Washington.” It analyzes not only the endlessly-discussed Bybee Memo, but also the Levin memo that replaced it, Lt. Col. Diane Beaver’s memo to DoD on the legality of specific interrogation techniques, Jack Goldsmith’s draft Article 49 memo on the removal of Iraqi nationals from Iraq, and Alberto Gonzales’s testimony on cruel, inhuman and degrading treatment. Beginning with the legal and historical background, I meant the chapter to pull together in a single and convenient place a great deal of scattered material on a watershed moment in government lawyering and the legal ethics of taking extraordinary legal positions in confidential legal opinions that cleared the way for abuse. As I put it in the book, the chapter offers a chronicle of a legal train wreck.

Other chapters deal with less time-and-place-bound topics in legal ethics, jurisprudence, and moral psychology. The inspiration of several of these chapters is Lon Fuller, arguably the only American philosopher of law who gave the life-work of lawyers pride of place in his jurisprudence. Fuller is best remembered for his analysis of the rule of law into eight requirements; but he is often criticized for labeling these requirements an “inner morality of law,” which many positivists think was simply a blunder on Fuller’s part. Fuller’s label makes sense, though, when we understand the eight canons as he did – as a professional ethics for lawmakers rather than conditions on the concept of law. (That’s chapter 3.) Other chapters address the ethics of legal advice and the “adversary system excuse”; one chapter uses debates in legal ethics over the right to counsel, confidentiality, paternalism, and pro bono to derive a secular conception of human dignity implicit in the legal system. Finally, three chapters of the book examine the moral complexity of organizational settings where the division of labor too often seems to eliminate moral responsibility by dividing it down so far. Two of these chapters look especially hard at what social psychology teaches us about moral meltdowns in organizations. A final chapter – written in honor of Tom Shaffer, one of the great figures in American legal ethics – offers a Jewish reading of Trollope’s lawyer novel Orley Farm in counterpoint to Shaffer’s eloquent Christian reading.
Posted 4:20 PM by David Luban [link]