We have here, not the clash of opposites, but a series of family quarrels within what you might call the Party of Aspiration in legal ethics. My seven allies and I all favor lawyers' ethic of more complex judgment, and more responsibility to nonclients than the currently dominant one. The differences among us are not large from the broadest perspective, but they involve issues that are quite important to the elaboration of the sort of alternative ethic we would like to see.
I am enormously grateful for the care and attention the commentators have taken. They have frequently stated my own positions better than I have and their criticisms are invariably acute. I lack both time and ideas with which to respond to many of their points. I do, however, want to address a general issue on which the commentators converge to varying degrees: To what extent should we encourage lawyers to think of the most pressing ethical issues they encounter in terms of law and justice as opposed to terms of personal morality?
Of course, the two sets of terms are not mutually exclusive. The question is rather one of emphasis. I argue in The Practice of Justice for an ethic of legal merit and justice. All the commentators at least speculate that I go too far in this direction at the expense of personal moral terms, and four of them are insistent on this point. Robin West, and especially David Luban, press this point in general terms, and I respond to them first. Thomas Shaffer and Anthony Alfieri press it by reference to specific alternatives – variants of communitarianism. I respond to them next. I conclude with a brief response to a different point pressed by Tanina Rostain concerning the effect of the social circumstances of practice in biasing lawyer decisions under a regime of Contextual judgment.
William H. Simon,
The Legal and the Ethical in Legal Ethics: A Brief Rejoinder to Comments on The Practice of Justice,
Stan. L. Rev.
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