In this Review, I respond to the authoritarian theme in Lawyers and Fidelity to Law. In essence, I argue: neither libertarianism nor authoritarianism is a plausible starting point for a general approach to legal ethics. It is a great virtue of Ronald Dworkin’s jurisprudence that it suggests a conception of law and legal ethics that does not depend on either perspective. Moreover, it suggests a conception of lawyer responsibility that is more plausible than either Emersonianism or moralistic positivism. By gesturing toward positivism and by surrendering to less reflective authoritarian impulses, Wendel’s argument underestimates the extent to which social order depends on informal as well as formal norms and adopts a utopian attitude toward constituted power. The book persistently treats as analytical propositions what are in fact empirical assertions for which Wendel has no evidence.
Law | Legal Ethics and Professional Responsibility
William H. Simon,
Authoritarian Legal Ethics: Bradley Wendel and the Positivist Turn,
Tex. L. Rev.
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