This essay endeavors to comment on the main themes of Ernest J. Weinrib’s The Idea of Private Law. Weinrib’s primary example of private law, and the example I shall pursue here, is tort law. In a typical torts case, the plaintiff complains that he has been injured as the proximate result of the wrongdoing (usually the negligence) of the defendant. This, the plaintiff says, is a breach of legal duty for which the defendant is liable. Questions about the foundations of tort law are questions about the significance of the terms in this story and about why, when it is proven that a transaction characterizable in these terms has occurred, the plaintiff is entitled to what he asks for, namely, compensation.

The character of a life in the law is, in part, a matter of individual aspiration. Consider, for example, James Boswell in 1762—over two hundred years ago—writing of the prospects he fancied he would enjoy if he were to be called to the bar in Scotland:

This article examines and criticizes the conventional evidence doctrine and its core principle (albeit with exceptions) of legally unregulated fact-finding. New foundations for evidence law are offered that reflect a principled allocation of the risk of error in conditions of uncertainty. Such conditions are present in virtually every litigated case. This article opposes the doctrine of ‘free proof’. That doctrine underlies the current flowering of discretion injudicial fact-finding and is responsible for the ongoing abolition of evidentiary rules. The evidence law theory developed in this article is of course itself theory-dependent. Far from claiming the theory here is uniquely correct rather than simply valid, I shall be satisfied by its survival as yet “another view of the Cathedral”. Nonetheless, evidence law as conventionally portrayed can hardly be compared with Monet’s Cathedral. It is conspicuously more like Pisa’s Leaning Tower. This article aims at returning the leaning tower of evidence law to an upright position.

In “Why Should Liberals Care about Equality?,” Ronald Dworkin distinguishes between two forms of liberalism, one form based on neutrality, and the other one based on equality. As Dworkin explains it, proponents of both forms argue against legal incursion into private morality, and argue in favour of increased sexual, political, racial, and economic equality; however, they disagree about which of these traditionally liberal values is the fundamental one, and which is its derivative. Liberalism based on neutrality takes as its fundamental value that one which holds that government must remain neutral with respect to moral issues, and it supports egalitarian measures only insofar as they can be shown to derive from that constitutive principle. For liberalism based on equality, the fundamental value is that one which holds that government must treat each of its citizens as an equal; egalitarian liberalism insists upon moral neutrality only to the extent that equality requires it.

Law, ethics and morality. What distinguishes these concepts? What connects them? Those are my questions. My argument is this. There is a traditional understanding of the relationship between law and ethics, and that understanding is inadequate as description. While passing as description, the traditional understanding of the relationship between law and ethics is instead normative. The normative message in the traditional understanding is worthy of examination and ripe for critique. This Article offers an alternative method of understanding the relationship between law and ethics and a normative examination of the old and the new.

Litigation lawyers learn early in their practices that although the adversary system functions tolerably well in many civil cases, its defects are nevertheless extensive and profound. Tactics calculated to delay, distort, obfuscate, obstruct and wear down opponents through frustration and cost are common. Questionable conduct is justified by appeals to the ethics of the adversary system. The consequences are often born by clients—through increased cost, delay and conflict—and even by lawyers themselves—through stress, fatigue and dissatisfaction with the quality of life that the practice of litigation in our adversary system brings with it.

It is not easy to come up with a characterization of legal positivism that is not vacuous and yet at the same time is sufficiently general to capture the myriad theories of law to which, over the years, the positivist label has been attached. Wil Waluchow suggests in his recent book Inclusive Legal Positivism that the core of positivism is the simple claim that any connections between law and morality are contingent only, dependent on whether the right kinds of laws have been created in the right kinds of ways (81). As a thumb-nail sketch of positivism this suggestion is plausible enough, so far as it goes, but it is important to note that it focuses on the possible connection between moral value and law, as opposed to that between moral value and theories of law. For there is an important strand in positivist thought that is as concerned with denying the latter type of connection as it is with denying the former. We can, in other words, distinguish between what we might call methodological and substantive versions of positivism.

The traditional sociological model of professions identifies both a structural and a moral component. The structural component consists of the apparatus of selfgovernance, which in the case of the profession of law takes the form of law associations with delegated legislative authority over membership and disciplinary functions. Implicit in the institutional apparatus of self-governance are two claims characteristic of professions, that they embody an expertise mastered only after substantial intellectual training and practical experience, and that the profession is autonomous, both with respect to state regulation and market forces. Expertise and autonomy are functional aspects of professions as social collectivities; but, with slight modification, they become as well features of individual professionals. Thus it is that the practitioner is recognized as an expert, through training and experience, and her clients must place their trust in her since their own lack of expertise prevents them from gvv/8evaluating her services. The practitioner’s services are also autonomous in so far as they are not wholly shaped or wholly dictated by the demands of the client, the regulatory needs of the state, or the pressures of the market.

Human reason is frequently frustrated. Efforts to act rationally—leave aside the fact that human beings are sometimes deliberately irrational—can be thwarted by a variety of obstacles and limitations. The fact that rationality often proves elusive ensures, among other things, that rationally-motivated courses of action sometimes have counter-productive consequences. Attempts to make certain goods and activities seem unattractive may lead people to be attracted to them. Endeavours to legislate in the public interest can sometimes make things worse for intended beneficiaries. Efforts at rational action, in short, can backfire.

Since the late 1970s American law journals have published literally thousands of articles on the problem of lawyers’ ethics. In these articles American scholars lament the current state of the legal profession and suggest that something has gone seriously wrong with legal practice and with the way lawyers conceive the ideals and norms of that practice. A few defenders of current ethical standards remain, but the dominant tone of current scholarship is highly critical of lawyers’ seeming ability to remove their “professional” actions from the scrutiny of basic precepts of ordinary morality. In contrast with this American proliferation of critical perspectives on legal ethics, little Canadian scholarship on the subject of lawyers’ ethics exists; as Gavin MacKenzie put it in his 1993 guide to lawyers’ professional responsibility and discipline, Canadian literature on legal ethics is “embarrassingly sparse”. A few American articles on legal ethics have been published in Canadian

It is not easy to summarize what this book is about, except to say that it is an exploration of a variety of themes and a variety of authors on the role of language in the practice of law, the role of theories of language in legal theory, and how all this bears on “the problems of legal determinacy.” By the latter we are to understand problems having to do with whether the law always, almost always, or never provides uniquely correct answers to legal questions like “Does the Canadian Charter of Rights and Freedoms invalidate the Federal government’s ban on tobacco advertising?” or “Is this defendant guilty of defamatory libel?” The works of several authors are discussed, with emphasis placed on Wittgenstein, Friedrich Waismann, Herbert Hart, Ronald Dworkin, Michael Moore, and Lon Fuller. As with the writings of Wittgenstein, who serves as Bix’s philosophical inspiration, it is not always abundantly clear what the discussions all add up to. Nevertheless, it is possible to distil from Bix’s somewhat unfocused discussions the following central themes. These, as Bix himself notes, are linked by nothing stronger than “family resemblance.”

I want to examine two motives well known in discussions of legal practice. The two, in short form, are ‘making money’ and ‘simply winning’. They are in themselves seldom analyzed in a philosophical way, but I will try to make a start. As motives other than a belief in the merit of what one does, I shall call them ‘cynical’ motivations. While someone might equally describe as cynical, say, being part of a system of legal decisions dictated from an agenda designed only for the rich, the more apposite understanding here is the conviction that legal outcomes are ‘without right answers’ (or no one is better than another) and will flip first one way and then another depending upon what the judges have for breakfast. From that position of meritless law, there is little to move a lawyer but ‘money’ or ‘winning’. I want to consider happiness in legal practice under those cynical assumptions. I shall say, in the most general way, that one is happy only when one is able to rest content with what one does. This means that one is conscious of having in one’s life what one values as such. Certain things are ‘part of’ and (if not that) ‘directed toward what is part of’ this value. To indicate the duality, I shall speak of ‘constituent’ and ‘ulterior’ values as together what one values as such. Whether or how the two cynical motivations in the practice of law might contribute to this state is a question worth asking. And an answer will be given.

A specter of disunity haunts the common law, threatening to throw property, contract, tort, and penal law into a crisis, where competing paradigms stand intransigently opposed, undermining any claims of coherence and giving sober proof that legality is a battleground of equally unjustifiable ideologies where only force wins out at the end. The impending crisis pits advocates of liberalism, affirming the primacy of the right over the good, against communitarians, upholding the priority of commonly shared ends embodied in an historically given community. Yet although the conflict parallels what many take to be the exhaustive options of ethical thought, the difficulty extends beyond theoretical dispute into the actual practice of common law, where at every turn, tendencies promoting welfare clash with tendencies upholding the formal right of ownership. In face of such division in both theory and practice, the dangers of idealism seem hardly surmountable by fidelity to law or by reflective equilibrium, for if disunity pervades legal thought and convention, neither appeal to the given can locate a coherent kernel in the conflicted shell.

As the breadth and complexity of law increases, the focus of lawyers seems to narrow. Law is increasingly seen by lawyers and the public alike as a “business” rather than a “profession” with lawyers simply providers of legal services. The client is “job one”, with the nebulous concept of “the public interest” somewhere further down in the list of priorities and preoccupations of individual lawyers. Clients are, after all, the ones who pay, and it is their interests that must be served.

Virtually all elements of society seem, in the last quarter of the twentieth century, to be beset by economic importunity. Other values are eclipsed by the proclaimed necessity to run every activity and organization as a business and the relentless commercialization of human life and politics. Nowhere is this economic inexorability more apparent than in professional sports, where ‘professional’ does not refer to a person whose advanced education and cultivated skills are used to serve others, but simply designates someone who makes a living as an athlete. Indeed, the distinction between professional and amateur, once so robust that it was used to strip medals from athletes who took money, has become obsolete. Nowadays athletes lose medals only when they are caught taking drugs. Salaries in professional sports have become uncoupled from performance, as familiar headlines about journeyman major league baseball players signing million dollar contracts demonstrate. Legitimate ‘stars’ (or ‘superstars’ as they have come to be known as the rhetoric inflates accordingly) demand to renegotiate their contracts when they have had an impressive year but are silent when their numbers fall. And virtually every piece of visible attire an athlete wears is marketed, by name or by number.

Lawyers in the Province of Ontario are regulated by the Law Society of Upper Canada, which has produced the Professional Conduct Handbook. Ensuring compliance by its members with the rules contained in the Handbook is part of the profession’s commitment to public service and of its role as a self governing body. As a former treasurer, Laura Legge, expressed it: