Document Type

Article

Publication Date

1996

Abstract

At the same time that it denies authority to nonlegal norms, the dominant view of legal ethics (the "Dominant View") insists on deference to legal ones. "Zealous advocacy" stops at the "bounds of the law."1

By and large, critics of the Dominant View have not challenged this categorical duty of obedience to law. They typically want to add further public-regarding duties,' but they are as insistent on this one as the Dominant View.

Now the idea that lawyers should obey the law seems so obvious that it is rarely examined within the profession. In fact, however, once you start to think about it, the argument for a categorical duty of legal obedience encounters difficulties, and these difficulties have revealing implications for legal ethics generally.

The basic difficulty is that the plausibility of a duty of obedience to law depends on how we define law. If we define law in narrow Positivist terms, then we cannot provide plausible reasons why someone should obey a norm just because it is "law." In order to give substance to the idea that law entails respect and obligation, we have to resort to broader, more substantive notions of law. These broader notions of law, however, are hostile to both the narrowness and the categorical quality of the Dominant View's idea of legal obligation. I and others have argued elsewhere that these broader notions often require advocacy to stop short of the limits prescribed by the Dominant View.' Here I want to consider that they sometimes may warrant the lawyer to go beyond them.

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