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10 - The Legal Profession

Published online by Cambridge University Press:  05 June 2012

Robert K. Vischer
Affiliation:
University of St. Thomas School of Law, Minneapolis
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Summary

In tracing the implications of conscience's relational dimension for law, this book has thus far focused on law's substance. But the law's substance is relevant only in so far as it applies to the real-world experiences of citizens, and the paths of application are not automated. Human gatekeepers – lawyers and judges – are at the heart of the rule of law. If we aim to figure out how law can best facilitate conscience's flourishing, we need to figure out how conscience should (or should not) shape the professional roles of those who provide access to the law. If our society's commitment to conscience demands that the law maintain space for marketplace participants to integrate moral claims with their provision of goods and services – as I have argued in the previous chapters – do different rules apply when the good or service in question is the law itself?

From much of the legal profession, the traditional answer has been an emphatic “yes!” The predominant view of the lawyer is as a common carrier, charged with maximizing the client's interests within the bounds of the law. The lawyer's own claims of conscience are a threat to the client's autonomy if introduced into the representation. Far from being a venue for conscience's flourishing, the attorney-client relationship tends to be portrayed as a technical venture in which the client's stated objectives are translated by the lawyer into legal strategy.

Type
Chapter
Information
Conscience and the Common Good
Reclaiming the Space Between Person and State
, pp. 269 - 302
Publisher: Cambridge University Press
Print publication year: 2009

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References

Luban, David, Legal Ethics and Human Dignity, 163 (2007)CrossRef
Shaffer, Thomas, On Being a Christian and a Lawyer, 61 (1981)
Berman, Harold J., Faith and Order: The Reconciliation of Law and Religion, 351 (1993)
Gadamer, Hans-George, Truth and Method, 447 (1975)
McLean, Bethany and Elkind, Peter, The Smartest Guys in the Room: The Amazing Rise and Scandalous Fall of Enron, 142–3 (2003)
Raz, Joseph, The Morality of Freedom, 412 (1986)
Wilkins, David B., “Everyday Practice is the Troubling Case: Confronting Context in Legal Ethics,” in Everyday Practices and Trouble Cases, 68, 70–2 (Sarat, et al., eds., 1998)Google Scholar
Luban, David, Lawyers and Justice: An Ethical Study, 160 (1989)
Shaffer, Thomas, On Being a Christian and a Lawyer, 20 (1981)
Menkel-Meadow, Carrie, “The Causes of Cause Lawyering,” in Cause Lawyering, 31, 37 (Sarat, A. and Scheingold, S., eds., 1998)Google Scholar
Muller, Ingo, Hitler's Justice: The Courts of the Third Reich, 219 (Schneider, D., trans., 1991)

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