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Philosophical Legal Ethics from Multiple Perspectives (Program)

Amy Salyzyn, University of Ottawa Faculty of Law (Canada); Tim Dare, University of Auckland (New Zealand); Emanuel Tucsa, PhD student at Osgoode Hall Law School, York University (Canada); and Gregory Cooper, Washington and Lee University (US)

Philosophical Legal Ethics from Multiple Perspectives

Amy Salyzyn: Fidelity to Plans?

In 2011, Yale Law Professor Scott Shapiro published Legality, a 400-page text outlining his Planning Theory of Law. Among legal philosophers, the book received considerable attention. In his review, Jeremy Waldron, for example, characterized Legality as "rich and vibrant with jurisprudential ambition." Frederick Schauer and Brian Bix were similarly laudatory, concluding, respectively, that the text represented "a work of ensuring significance" and was "an undoubtedly important contribution to the jurisprudential literature." To be sure, Legality was not universally praised. John Gardener and Timothy Macklem, for example, concluded that the book was "a work that tries too hard to make a major breakthrough to serve as a reliable guide." Regardless of various reviewers' ultimate assessments, however, it is clear that Shapiro’s book got people in the world of jurisprudential theory talking.

Given the noted "jurisprudential turn" in legal ethics scholarship, it is somewhat striking that Legality has received such little attention among those interested in legal ethics theory. The goal of this article is to outline how Shapiro’s Planning Theory of Law might interact with and have implications for legal ethics theory.

Tim Dare: Legal Ethics and Post Neo-Aristotelian Virtue Ethics

In the early years of its current renaissance virtue ethics remained fairly true to its Aristotelian origins. Virtue ethics as defended by influential philosophers such as Julia Annas, Rosalind Hursthouse, John McDowell, and Martha Nussbaum is neo-Aristotelian.  Many scholars have thought that virtue ethics is especially apt for legal ethics. The virtue ethics they have had in mind has been almost exclusively neo-Aristotelian. Recently however, 'post neo-Aristotelian' versions of virtue ethics have been developed by, for instance, Michael Slote (agent-centered virtue ethics) and Christine Swanton (target-centered virtue ethics).  I will talk about why legal ethics scholars have been attracted to virtue ethics and present and assess the significance of these new forms of virtue ethics for legal ethics.

Gregory Cooper: The Moral Character of the Lawyer's Role 

Can the role obligations of the lawyer override her ordinary moral obligations, and if so under what circumstances? This question is at the core of philosophical legal ethics, not just in terms of being fundamental but also in terms of the extent to which it pervades the conversation. Recent works by Brad Wendel and Tim Dare have argued that in all but the most extreme circumstances the answer is affirmative. However, their arguments in support of this claim rely not on philosophical theories about the nature of role obligations – something in short supply – but instead on arguments grounded in political morality. I will explore the relevance of two theories which have not, to my knowledge, been incorporated into the debate. Both theories are attempts to assess the ethical status of role obligations generally and my aim is to see what they have to say about the role obligations of lawyers in particular. The first theory is a practice-based approach developed by Alastair McIntyre and the second is a conventionalist theory of role obligations developed by Erin Taylor. 

Emanuel Tucsa: An Epistemology for Legal Ethics – The Need for Intellectually Virtuous Lawyers

Ethicists sometimes make a distinction between self-regarding ethical virtues and other-regarding ethical virtues, i.e. ethical dispositions that primarily benefit oneself (e.g. prudence) or primarily benefit others (e.g. generosity) in terms of some ethical value. This distinction has been taken up within epistemology and used to develop theories of knowledge that include intellectual virtues that are self-regarding and intellectual virtues that are other-regarding, i.e. intellectual dispositions that primarily benefit oneself (e.g. perceptiveness and intellectual courage) or primarily benefit others (e.g. honesty and integrity) in terms of intellectual flourishing and the acquisition of knowledge. 

I argue that this project of applying these ideas from virtue theory to epistemology can also provide insight into the functions of legal systems and the roles of lawyers. Models of lawyering (traditional and alternative) incorporate both self-regarding and other-regarding virtues. However, these models would support virtue development (ethical and intellectual) in ways that emphasize virtue orientations differently when it comes to the roles and tasks that lawyers perform. 

My focus is on the relevance that intellectual virtues and their orientations have for the practice and ethics of lawyering. A benefit of discussing intellectual virtues in relation to legal ethics is that the idea of intellectual virtue enriches our understanding of the lawyer’s knowledge producing role. Additionally, this research provides an ethically robust account of the “good lawyer” in a way that leverages the technical sense of the term “good lawyer”. The arguments in this paper are illustrated through a consideration of document discovery and witness testimony. 

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