It is kind of interesting, because lawyers don't exactly have a reputation for being cheerleaders of good moral character.
I know one lawyer who has an insufferably high view of the nobility of his profession. He can't be the only one.
It's going to be tricky for Glass to meet the high moral standard that California expects its lawyers to reach. John Yoo, on the other hand, had no problems.
Yeah, this is complete asininity.
It makes sense, as HG says. Ethics for the law is all about how you do the thing you do and not about what you do.
2
... John Yoo, on the other hand, had no problems.
John Yoo is not a member of the California bar. William Haynes on the other hand is .
Haynes, unlike John C. Yoo, Jay Bybee and the other high-level lawyers involved in approving torture, is registered with the California bar. ...
In any case standards for disbarring someone are likely different from admitting them in the first place.
John Yoo is not a member of the California bar.
So one can teach law in California while not being allowed to practice it?
6: Stanford had a dean who failed the exam.
Apparently the state of California regards criminals as being far more vulnerable to moral misguidance than are university students.
5
Actually it appears William J. Haynes is not a full member of the California bar.
Those listed as Registered In-House Counsel (RIHC) are out-of-state attorneys. They have complied with rules permitting them to practice in California on a limited basis.
Interesting. My small point of comparison is that late last summer, when my grandmother was dying and were were trying to figure out her will, power of attorney, medical proxy, and so on, we discovered that her attorney who had drawn them up had been suspended (temporarily, but not disbarred) for misappropriating estate funds.
"Has been known to lie, repeatedly, in print and in public" seems like a fine reason to turn someone down; my only concern is whether it would be appropriate to let him reapply in another decade or so if he seems to have behaved better.
This post to previous post.
"In light of the serious misconduct that occurred, albeit a decade ago, [Glass] did not show in the commission's eyes significant rehabilitation," Grunberg said. "He just hasn't shown that he holds those values that we hold dear."
One month of California disbarments and Suspensions/Probation. It appears you have to do something pretty bad to get disbarred, this guy seems to have gotten a slap on the wrist (one year probation).
While representing the husband in a family law matter, Criego saw the wife's lawyer drive away in his car after a hearing where both lawyers had appeared. Criego called 911 and falsely reported a drunk driver, whom he identified as the opposing lawyer. He also gave a description and license plate of the car as well as the route the other lawyer was driving. The other lawyer was not under the influence, but was pulled over by the California Highway Patrol.
My guess is that the amount of publicity drives it. There was not just a book but a major feature film. Would someone who did something equivalently bad (extensive plagiarism) with no publicity have such trouble? Lesson: don't commit your crimes at the white-hot nexus of the DC/NYC/Harvard magazine publishing mafia.
On the other hand, you could say the amount of publicity is related. If Glass would brazenly and deliberately undermine a major organization he worked in, that might say more about his willingness to commit institutional-level fraud than worse behavior within the family or at the local bar.
10
Interesting. My small point of comparison is that late last summer, when my grandmother was dying and were were trying to figure out her will, power of attorney, medical proxy, and so on, we discovered that her attorney who had drawn them up had been suspended (temporarily, but not disbarred) for misappropriating estate funds.
Yes stealing from clients seems to be a common problem . Perhaps this is because lawyers often have the opportunity (like doctors abusing drugs). Which might make law a bad career choice for someone like Glass who hasn't demonstrated an ability to resist temptation.
13
extensive plagiarism
Glass's main offense of course was making stuff up not plagiarism.
A friend who once plead guilty* to some sort of felonious assault (dropped on plea bargain from attempted murder) was admitted to the bar. A fair whack of time after the incident in question, but still.
*Possibly no contest or something. The whole thing was bullshit.
I really don't have a strong sense of how the rules get enforced, or with what kind of rigor. But not admitting Glass to the bar makes perfect sense to me. Lawyers are obviously as shady as anyone (probably more shady than most), but there's a strong norm (violated sometimes, but it's there) that they don't literally lie in professional contexts. For the legal system to function, it makes it much easier to be able to rely on an unambiguous statement by an attorney to be literally true.
When you've got someone with a record of important lies in a professional context, that looks as disqualifying as anything of similar severity could possibly be.
10,14: For a few years we had a lawyer and his family living next to us who ended up moving out in the dark of night in response to some blatant escrow "mismanagement". I was mostly away at school during the time and forget the final outcome; I do know that even before that I was always gobsmacked that the guy was a lawyer given his other characteristics.
17 crossed with 16, but that makes perfect sense to me. A minor record of violence is abstractly bad, but doesn't have anything to do with functioning as a lawyer, where being untruthful (construed literally and narrowly) really does.
16
A friend who once plead guilty* to some sort of felonious assault (dropped on plea bargain from attempted murder) was admitted to the bar. ...
Did he serve any time?
Of course Glass was never prosecuted (although I think he could have been) much less convicted but I think his offenses were more typical of the things lawyers get in trouble for.
-- ...Well, you could appoint him a high court judge.
-- Is he qualified?
-- He's a violent, bigoted, mindless old fool.
-- Hmm, sounds a bit over-qualified...
20: My memory is fuzzy after 20 years, but yes, I believe he did. I think all or nearly all of it was under some kind of work release, so he was free all day and then had to go back to jail to sleep. For three or four months (again, if memory serves).
I've heard of murderers who got through in California.
I've also heard that a history of mental health treatment can get in the way--even though once people are admitted they encourage poeple to seek treatment.
6: Most law professors don't bother maintaining their bar cards, since they don't practice law.
I had a professor who did. One of the reasons he did that is that if students had concerns about passing the moral character standard, he wanted to be able to offer them attorney-client privilege.
He told the story of the murderer who killed somebody in a convenience store robbery.
A minor record of violence is abstractly bad, but doesn't have anything to do with functioning as a lawyer, where being untruthful (construed literally and narrowly) really does.
This really begs the question. The standard that all a lawyer must do to be ethical is to zealously advocate her client's case to the extent legal may be enormously damaging to society as a whole. See (as above) Bybee, Yoo, etc.
25: How else could you do "innocent until proven guilty" with a different set of ethics?
25: Doesn't this come down to "No one should be powerful unless they're a good person"? Which is a nice idea, but it's really hard to enforce, given the difficulty of getting consensus on what being a good person means. Literal truth and untruth is something that can mostly be agreed upon, and requiring that lawyers be trustworthy on that level is both something that can be enforced (not sure that it always is, but it's not impractical in principle) and makes a big difference in making legal practice functional.
One of the reasons he did that is that if students had concerns about passing the moral character standard, he wanted to be able to offer them attorney-client privilege.
Is this kosher if he's just giving them advice, not representing them? Reminds me of the email signatures preemptively declaring everything under the sun to be privileged.
27: not a bit. It comes down to "ethical behavior is more than effective advocacy."
28: Yes, as long as they asked him in advance to act as their lawyer. Plenty of lawyers are basically just giving advice.
The school could have banned him from acting a student's lawyer, but it seemed to be fine with it.
Bybee and Yoo were not supposed to be advocating. And even if they were, their work fails any reasonable candor standard.
Sure, but there is more to even narrowly construed legal ethics than effective advocacy. There's literal truthfulness, financial honesty, and all sorts of rules. It's just very difficult to enforce anything not amenable to a tight, objective definition. (Specifically Yoo and Bybee, I think there's a good argument that they acted unethically under such a tight definition, by conspiring to break the law, but I figure we're talking more generally here.)
32 to 29, and agreeing with 31.
31: For government lawyers, it would be different.
I think it's quite reasonable to require people in professions to maintain a code of professional ethics while not requiring them to be generally moral people. For example, a very crucial part of interpreter ethics is keeping private information private. If someone was a war criminal I don't see why that should preclude them from being an interpreter (if they're not serving time), but if someone was fired as a doctor for not keeping medical records private then they should not be certified as an interpreter. (This is not an analogy, but rather an example. We're discussing whether professions should have codes of ethics independent of general morals.)
I was mildly shocked to find out that Glass wasn't admitted in NY. He wasn't convicted of any crime or even held liable in a civil suit. It felt like kind of a publicity stunt on the part of the bar. But sure there's a norm of being able to pursue any end, no matter how despicable and deceptive, as long as you don't affirmatively misrepresent something to the Court or others.
On the general question, I can see why the bar was concerned -- many aspects of the practice of law can put enormous pressure on folks to be deceptive (almost all litigators have had to tell their clients "no, you can't lie about that, and neithe can I" at some point), much more so than journalism.
Still, I was surprised to see Glass singled out.
37 And candor to the client is a really big deal. Not just in billing -- which is pretty obvious -- but also in telling them when you've made a mistake.
I'll be mildly surprised in the California Supreme Court turns him down. Assuming that the factual showing relied upon below (did it include live testimony??) wasn't grossly inadequate, a denial would have to be a ruling that some misconduct is a per se bar, regardless of facts showing rehabilitation.
I suppose they could remand for more fact-finding, if they really think the levels below missed something big.
I thought Yoo was still a member of the Pennsylvania bar.
(I don't think much of Heebie's postscript to the OP. There's a bullshit myth out there, sure, but ime lawyers actually lying or telling someone to lie is exceedingly rare. I've been living a candor moment the last few days: we're going to trial in a diversity case next Monday morning. On Tuesday, the state supreme court issued a decision changing the legal standards in my favor. I'm buried getting ready, but the other guy saw it on Wednesday, and right away brought it to the attention of the judge, and me, and made a weak argument why it's not as significant as it looks. I finished and filed my brief yesterday arguing that it's a really big deal. I wouldn't have seen the decision up to now, I don't think, and, entirely possibly, not before trial.)
A few years back, there was an exchange here that began with Lizardbreath expressing amazement that people ever lie. Many expressed a return amazement that LB would be so naive, especially given her profession. She then replied, quite convincingly, that her job was about doing everything besides lying, at least, besides lying outright.
41: Right, and I took that to reflect the position of attorneys with respect to their jobs: there are many times at which the letter of the law diverges from what many/most people think is actually right, but the lawyer's job is to know, apply, and adhere to the letter of the law.
Hasn't our increasingly absent friend trapnel carried on about this at times? To the effect that the law is not an adequate substitute for moral rightness. Anyway, I assumed we all knew it; hence Heebie's postscript to the OP.
38
I'll be mildly surprised in the California Supreme Court turns him down. ...
Well there is the question of why they took the appeal if they are just going to affirm the decision below.
39
I thought Yoo was still a member of the Pennsylvania bar.
I've been working on a thesis that the point of law is basically to perform a sublimated form of warfare, the purpose of which is to acheive slightly modified versions of enslavement, murder, and/or plunder. The ethos of the lawyer is essentially that of the hired mercenary killer. Unless you lie to the court or other lawyers, in which case the game is up and what you're doing looks too much like actual warfare, so everyone freaks out.
*this thesis (a) probably needs some work; (b) is not the official position of the California state bar. Still, there's something there.
the point of law is basically to perform a sublimated form of warfare,
Still, it is preferable to real, live warfare with guns and stuff.
36
I was mildly shocked to find out that Glass wasn't admitted in NY. ...
It appears he wasn't formally rejected.
After his firing in 1998, Glass earned a law degree from Georgetown University and passed the New York State bar exam. He withdrew his application for bar admission in the state in 2004 after learning he would likely be denied a law license there. He moved to California the same year.
I imagine 45's thesis might be modified to account for various branches of the law. I harbor starry eyed visions of, say, civil liberties lawyers as being not quite dedicated to nefarious things; on the other hand, they do have to descend into the mud in order to fight in the very arena in which they engage.
Otherwise, lawyers are obviously mercenaries and killers (understanding that to mean they engage in a particular field, with particular rules, and are out to win, or at least not fuck up).
(I don't think much of Heebie's postscript to the OP. There's a bullshit myth out there, sure, but ime lawyers actually lying or telling someone to lie is exceedingly rare.
I wasn't thinking at all of lawyers telling people to lie. I was thinking about the stereotype that lawyers look for the loophole separating what's legal from what's right, and advising their clients to thread that needle. You're going to have a hard time convincing me that this stereotype is bullshit.
The civil liberties lawyers, and a few others (labor lawyers) deal nobly with a few exceptions, hard-fought over the centuries, to the general rules of sublimated enslavement, plunder, and protection of the powerful.
49's not wrong, exactly, but I do spend some time telling clients things like "you could do this legally, but you probably don't want to for x y and z (nonlegal) reasons.". I'd bet Carp and LB and the other lawyers do the same. Of course, the nonlegal reasons are usually "you don't want to look like the kind of person who does x," not "the categorical imperative demands."
But I can't believe that you, LB and Carp are any sort of representative sample.
I would even believe that a huge percentage of lawyers are totally moral and reasonable. Just that the other side is well represented as well.
50: What are you saying about the rule of law, Halford?
49: Well, yes. If you take out the loaded word "loophole", a lawyer's job is (among other things) to know the law and advise our clients of it accurately. After the client knows what's legal, while a lawyer can advise them not to do anything that's legal but morally wrong, it's up to the client whether to be a bad person while obeying the law.
You'll probably take this a lawyerly quibbling, but really, how else could it work? Client says "I want to do X," lawyer says "If you do X like so, it's legal, but ethically troublesome," client says, "Thank you for your opinion of my morals," and goes and does X.
I don't do much telling people what they can or should do before a claim is filed: my practice usually starts up after the shit has hit the fan. This is by design: I like to play on my field, and not stand on the sidelines trying to get the coaches' attention while the business people are actually out on their field.
And on my field, I am happy to play by the rules. For example, if the opponent files his bill of costs, but does not comply with the rules as to how such a thing has to be filed and verified, and the controlling law is that this non-compliance means they don't get to demand payment from my client, without right to refile or amend, I have no problem at all with asserting the client's position. Even if I think it entirely likely that the costs were actually incurred. The Statute of Frauds wasn't my idea. It's been in place for more than 400 years, though, and I'm going to assert it when that's a legally appropriate course to take, regardless what some disinterested third party might say about the morality of evading an agreement.
I'm probably actually pretty representative. I don't spend a lot of time thinking about the morality of what some client has done: they'll be answerable for that to someone other than me. For myself, my job is to win the case, and if under the rules, statutes, and cases -- which, by the way, emerge from society, not having been imposed by visiting aliens -- we can prevail, well, my job is to craft a narrative from the facts at hand to show how it is that this is so. And if we can't prevail, we usually have an argument about damages. And if we aren't going to prevail on that either -- well, there's no one willing to pay the buckets of money I ask for who doesn't have some reasonable hope of either escaping or limiting the consequences of what they've done (or are said to have done).
I nonetheless reject the idea that operating within the bounds of the system society has designed to address moral issues is, in some grand scheme, immoral. Amoral, maybe.
A jury trial requires special attention to morality, of course. My upcoming case is about whether a contract is enforceable as written. Will some jurors start the deliberations with a firm commitment to the sanctity of contract?
52: We'd have to throw in will to get a representative sample.
My procedural amorality cost me a job once. While still a law student, I was interviewing with a firm that had pretentions of grandeur in its market. A panel of 3 lawyers told me, proudly, that their firm had never in its history filed a Rule 11 motion. I asked, 'But what if the client is entitled to relief under Rule 11?' I may as well have just shit on the conference room table for all the looks of horror I got.
Huh. I don't even get why you'd be proud of never filing a Rule 11 motion. There's not often any good point to it, but that's much more saying "We don't screw over other lawyers," than "We're ethical."
We don't get down in the gutter like those other assholes.
Oh, that I get, but that's not ethics, that's something more like style points -- we're not going to play the refs. I mean, most places I've worked, we customarily didn't file motions for sanctions, but it wasn't a matter of principle or anything, more a combination of "not worth the effort" and ego.
Disreputable, because usually immoral.
I didn't think they were making an argument about professional ethics, because if they were, it would go the other way.
I get it, kind of, but I think they were betraying a fundamental confusion between 'it's usually immoral to do this' and 'we should be proud that we never do this.' Just because most motions for sanctions are intended to harass the other side doesn't mean there's anything at all shady about bringing one where it actually is warranted. It's funny how what someone is ethically proud of can show that they really don't get the ethical issues at all.
There's some interesting stuff about the origins of the common law in Cantor's Inventing the Middle Ages (which we were discussing in a recent threat) that relates to these issues. The recent dispute between Chomsky and Yglesias over international law is also related.
A recent thread, that is, although in context "threat" seems somewhat appropriate too.
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A bald eagle just flew over my apartment building. I saw it from my window. Pretty cool.
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65: Chomsky is having an argument with Yglesias?
56 strikes me as as good a summary of an attorney's position as any I've read (though lawyers who advise before any shit has hit the fan may -- stressing may -- be a separate topic).
I guess we could hash through whether there's any difference between being amoral and being (potentially?) immoral. If we felt like it.
I'm debating whether to make the apple crisp that I never wound up making yesterday.
Fuck. I want to have Chomsky misrepresent something I said.
Regarding a principled objection to Rule 11, aren't we really talking about honor among thieves? Seems to me bragging about not filing a Rule 11 motion is akin to a doctor saying he would never testify against another doctor for malpractice.
69: Huh. Sounds like an argument that numerous people have been having for some time, and the only dispute, really, is over whether those who point out that the law is written by the powerful, for the powerful [so stop whining], are apologists or not.
Sounds like an argument that numerous people have been having for some time, and the only dispute, really, is over whether those who point out that the law is written by the powerful, for the powerful [so stop whining], are apologists or not.
Pretty much, yeah.
I'll take this moment to be a bit snotty about Yglesias' writing, just because. From the link in 69:
I was a bit surprised to learn that while on vacation, Noam Chomsky took a shot at me during his Acceptance speech for the 2011 Sydney Peace Prize.
Who was on vacation, now?
73: That's partially my reaction. The only difference is that there are a lot of bad-faith Rule 11 motions out there, filed to harass the other side, and that is a sleazy thing to do. An ethically confused but non-evil lawyer might reasonably think "I'm not one of those sleazy assholes who files motions for sanctions frivolously" and get from there to "All motions for sanctions are filed by sleazy assholes." Doctors don't have the same motivation to harass each other in bad faith, so the issue is a little simpler.
Doctors have research staff to harass.
73 -- There's a problem with this analogy. When you move for sanctions, you might not be sorry to end up tagging the opposing lawyer, but the direct object of the motion is going to be the opposing party. Lawyer conduct is presumed to be the conduct of the party, and for good reason. And it's the opposing party, not the lawyer, whose money you want, and behavior/attitude you want to change.
And do as adversaries do in law,
Strive mightily, but eat and drink as friends.
Doctors don't have the same motivation to harass each other in bad faith, so the issue is a little simpler.
Ah, but there are doctors who are paid experts whose testimony is shaped by the payer. And there are, of course, thieves who steal from other thieves. I'm not getting the distinction you're drawing.
79: I feel as though if I actually knew what Rule 11 was, I'd have something to say about that.
And do as adversaries do in law,
Strive mightily, but eat and drink as friends.
Right. Honor among thieves. Once a thief has stolen from you, it's hard to have a beer with him or her, even if you acknowledge that the thief is just doing the thing that thieves do.
Well if Glass is known for just making shit up, he'd be perfect for one of those robo-forclosure mills, where the attorneys claim in court that their bank clients have the necessary documentation but they (the lawyers) refuse to assume any liability as to this by refusing to personally attest to it in the form of a legally binding document. I.e., to a layman, basically they bullshit the judge to screw the debtor but retain the option of doing a Rick Perry like "oops" when it turns out that the bank does not have legal right to foreclose.
Alternatively, the lying and fabrication part should move his resume to top of the application pile for a slot as a legal analyst/commentator for Fox News.
I get that lawyers are supposed to be morally-neutral, and just advise on the legality of various actions. That's fine and dandy.
I'm asserting that some lawyers are sleazy, and are going to coax their clients down morally worse paths than the client would have otherwise been inclined, because it's technically legal. And not just a couple outliers, but sufficiently many to give lawyers a bad rep.
I haven't read much of the thread above, btw.
I nonetheless reject the idea that operating within the bounds of the system society has designed to address moral issues is, in some grand scheme, immoral. Amoral, maybe.
Wait, what? The system isn't perfect. You can exploit a system that's not perfect, and that can be immoral.
Advising someone that they can technically cheat someone out of an inheritance because some law doesn't kick in for another few months? Advising someone how to take advantage of a poorly worded law? Advising someone "These things are hardly ever prosecuted, while those things are often prosecuted, just so's you know"? Offering up loopholes to avoid taxes that weren't part of the client's original question?
Any example that I could possibly generate will be easily out-argued. But I bet you could come up with some airtight examples.
Society didn't design anything--it satisficed the fuck out of a lot of bad situations. Not exactly a recipe for a deeply moral framework within which advocates work.
The "Law" is a deliberate abstraction and reduction from concrete and contingent cases in order to lessen and avoid responsibility and liability among the actors in future and possible cases.
To the degree I obey or follow the law I abstract myself and escape my own subjectivity. I create a role (or follow a role created), a part to play as citizen, voter, legislator, lawyer, judge. This distance between myself as subject and my role under the law is the opposite of morality.
I generally don't follow such rules at home or in concrete interactions. I usually decide on the spot what is right depending on particular circumstances rather than follow rules or laws.
The "Law" is the exact opposite of morality.
(As can be seen by the fact that the immoralist or amoralist is still engaging morality as acting subject/agent. Those who attempt to justify socially-disapproved behavior usually seek objective grounds and wish to be judged objectively "It was self-defense" or "I was hungry" The immoralist says "Because I wanted it")
Absent a historical argument about the design of the UN and the UN Security Council, I'm not going to take Yglesias word for it that it was designed with the purpose of legitimating the use of force by larger nations against smaller nations. There are good strategic reasons not to design it that way, actually, if you happen to be a great power in rivalry with another great power and you're looking for ways to legitimate your opposition to the actions of your rival, which might include beating up smaller nations.
has designed to address moral issues
Seriously? I thought that this was a hugely contentious issue in jurisprudence. The distinction about malum in se versus malum prohibitum is all about the amorality of law, or so I thought.
All I really remember is that I got the impression a long time ago that I was hopelessly naive and unsophisticated when I said that law was a statement about societal morals.
Everyone knows this one, right? I would link it, but I can't find a good site. It's not that long, anyway.
Law Like Love - W.H. Auden
Law, say the gardeners, is the sun,
Law is the one
All gardeners obey
Tomorrow, yesterday, today.
Law is the wisdom of the old
The impotent grandfathers shrilly scold;
The grandchildren put out a treble tongue,
Law is the senses of the young.
Law, says the priest with a priestly look,
Expounding to an unpriestly people,
Law is the words in my priestly book,
Law is my pulpit and my steeple.
Law, says the judge as he looks down his nose,
Speaking clearly and most severely,
Law is as I've told you before,
Law is as you know I suppose,
Law is but let me explain it once more,
Law is The Law.
Yet law-abiding scholars write;
Law is neither wrong nor right,
Law is only crimes
Punished by places and by times,
Law is the clothes men wear
Anytime, anywhere,
Law is Good-morning and Good-night.
Others say, Law is our Fate;
Others say, Law is our State;
Others say, others say
Law is no more
Law has gone away.
And always the loud angry crowd
Very angry and very loud
Law is We,
And always the soft idiot softly Me.
If we, dear, know we know no more
Than they about the law,
If I no more than you
Know what we should and should not do
Except that all agree
Gladly or miserably
That the law is
And that all know this,
If therefore thinking it absurd
To identify Law with some other word,
Unlike so many men
I cannot say Law is again,
No more than they can we suppress
The universal wish to guess
Or slip out of our own position
Into an unconcerned condition.
Although I can at least confine
Your vanity and mine
To stating timidly
A timid similarity,
We shall boast anyway:
Like love I say.
Like love we don't know where or why
Like love we can't compel or fly
Like love we often weep
Like love we seldom keep.
84: the system society has designed to address moral issues
Here we would seem to get to the heart of my disagreements with procedural liberalism. I.e., viz. and to wit: What evidence do we have that the legal system (here or anywhere) is or was designed to address moral issues? Certainly, some elements of the system address moral issues, and there are many justifications for the legal system that rest on the belief that it is addressing morality, but that doesn't mean it was designed for that. On the contrary (I would argue), since the basis for a significant chunk of the legal system is the protection of private property and the maintenance of great concentrations of capital, the legal system is designed to a great degree as an instrument of immorality. Likewise, insofar as there are aspects of the criminal justice system that only indirectly affect property, those parts are also immoral as their overwhelming focus is on the punishment of offenders, not any intrinsic social good.
W. H. Auden could have written lyrics for country music if he had applied himself.
Or maybe if he hadn't applied himself.
heebie's really taking to her role as the new ogged.
Absent a historical argument about the design of the UN and the UN Security Council, I'm not going to take Yglesias word for it that it was designed with the purpose of legitimating the use of force by larger nations against smaller nations.
Fair enough. I take him to primarily be making the broader point that law is made by the powerful and that in the case of international law "the powerful" primarily means the victors of WWII. Exactly what the system they set up allows larger nations to do to smaller ones is a matter for diplomatic historians and international lawyers to determine.
So a client calls me to ask if they can deduct a business dinner with a client, and I tell them, yes you can, and in addition you can deduct the theater tickets you bought for the show after,* and I'm subject to your judgment of immorality?
Someone hires me, being sued by a relative, and I find that an explicit law dictates that my client gets the inheritance and the relative doesn't, and I'm supposed to do what -- lie to the client, intentionally lose the case, or just withdraw from it? I supposed to decide myself what the morally right answer is, to hell with either the law passed by the legislature or the interest of the client?
I don't know what take advantage of a poorly worded law means. Say I have a pending case. And Congress passes a law depriving the court of jurisdiction over the case. But wait, one senator has tricked the others with a clever drafting trick, and I can talk the court into the notion that actually this new law doesn't apply to my case. I'm not supposed to make the argument?
Society didn't design anything--it satisficed the fuck out of a lot of bad situations. Not exactly a recipe for a deeply moral framework within which advocates work. I don't disagree with this. It's a fallen world, and perfection is for ideologues and fools.
*Not to be taken as actual tax advice!
OK, fine, call it an overstatement. The law was designed to address what taxes are owed, what expenses are deductible. The law was designed to decide how inheritances are to be handled, and the deadlines were designed to demark when one set of rules gives way to another. The law was designed to decide what contracts may be enforced, and what may not, and what the consequences of failing to comply with a contract might be.
95: He seems to be right that the UN authorized the use of force to kill bin Laden. And arguably this includes the use of force to enter other sovereign states for that purpose.* The problem is how he generalizes from this:
What kind of sense does it make for the US, China, and Russia to get together and tell the world which countries may and may not be subject to SEAL raids?
But isn't this actually what they did by using the security council to authorize force against bin Laden? Yes, international law is going to disproportionately favor the powerful states, but they still appear to believe it has just enough meaning to actually write it for specific cases. It's actually important to look at the cases where the UN authorizes or does not authorize something. It's not like it's all blanket approval for large states.
*Yglesias is also quietly conflating authorization to kill bin Laden - whether or not there was an obligation to apprehend him like a regular criminal - with authorization to conduct a raid in Pakistan without explicit permission.
96: so you finding morally ambiguous versions of the examples I posed means that other lawyers wouldn't misbehave in morally egregious versions?
Your inheritance example doesn't even abide by what made my inheritance example immoral.
But isn't this actually what they did by using the security council to authorize force against bin Laden?
Yes, of course it is, and it's not clear to me how what you're saying differs from what Yglesias said.
Hasn't our increasingly absent friend trapnel carried on about this at times? To the effect that the law is not an adequate substitute for moral rightness.
Indeed. Heebie (84) and Bob (87), in their own ways, have mostly covered things. Though I suspect I'm sympathetic with Natilo about a lot of stuff, I really don't think the intent ("designed to") of those responsible for our legal system being what it is makes much of a moral difference; after all, that system is the collective result of millions of actors making billions of decisions over hundreds of years, so "design" would have to be pretty metaphorical. What matters are the effects.
Obviously, in a world structured so significantly by law, someone comfortable with its rules can do a great deal of good by advising those subject to it how they can best navigate through its thickets. It's a tool like any other, that can be used for good or for ill. But sometimes folks will seek to use this knowledge to do things they oughtn't; insofar as "legal ethics" insist that you ought to help them accomplish this, legal ethics are telling you to do the wrong thing.
Business executives who make decisions purely based on share-price maximization will often do things they oughtn't, because share-price maximization is not actually a reliable guide to right action. Those who advise them on the means-ends calculations pursuant to this are less responsible, certainly, but not completely lacking in responsibility. Giving advice is not a morally neutral act.
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Oh: anybody have any suggestions for what to do on a Saturday night in Davis? Was here for family stuff.
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You didn't make the immorality clear. Is it the existence of some kind of deadline, where the legal result of how the property passes changes? That can't be it. Is it telling a client about the deadline and impending change in the law? That can't be it either.
What does "cheat" mean in your example? Does it mean 'follow the rules'?
When is it ever immoral to tell a client what the tax laws are? Can you construct any scenario when a lawyer cannot, morally, explain to a client what the tax code says?
100: Eh, I think looking at it again I was misreading him on the non-historical part of his point.
Although I still think in the bin Laden case the Pakistan sovereignty aspect is more than a matter of smaller countries' sensibilities. That might have been a violation of international law, not that anyone can do anything about it.
To Heebie at 49, the existence of people like this supports your contention that some lawyers are indifferent to the morality of their clients' conduct and their own. Note that he has TRADEMARKED the term "Mr Loophole". But it says nothing about how many of these sociopaths infest the profession.
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Oh dear lord.
Sorry, you know how i was ranting about the election in the other thread? Well, yeah that happened, and ok.
I was the canvassing co-ordinator for the Christ/church Central MP's re-election campaign.
He drew with the National Party candidate.
Drew! 15 thousand odd votes each, and exactly the same number.
Of course, we're waiting on the specials, and the recount. But jesusfuck.
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Legal ethics wise, I always wonder about the distinction between a barrister and a solicitor. After all, arguably a barrister is legitimately merely a hired voice, someone with no opinion or thought but as they are paid, and forced to take clients without prejudice.
The solicitor, on the other hand, has this on-going relationship, which is a different kind of thing.
Legal ethics wise, I always wonder about the distinction between a barrister and a solicitor.
Up to a point. Cab rank barristers for the proles are one thing, but there are expensive types who have relationships with solicitors themselves. If somebody like the shithead I linked in 104 needed a brief for a case I'm sure he'd know just who to call, whereas even ordinary decent solicitors probably have people they've known for years who are "good at this kind of case".
None of this applies in the home of the brave and the land of the free of course, where members of the bar solicit like good 'uns.
Your election sounds really weird. I thought you thought your guy was a shoo-in.
Where just offering legal advice can (allegedly) lead .
A witness at Mr. Bergrin's trial described his offering clear advice a few months before the killing: "No Kemo, no case."
Morally neutral?
102: so there are no situations where a lawyer must use their judgment? And there are no situations where you have disapproved morally of another lawyer, even though what they did was technically legal?
91: What evidence do we have that the legal system (here or anywhere) is or was designed to address moral issues?
It seems to me you're begging the question of what morality is and what it is for. I would say law and morality are two complementary means that have evolved for the same purpose: to preserve the stability of human society. One does so through state coercion and one does so through shame/guilt/social coercion, but they both have a tendency to reinforce entrenched interests. (At the low end, morality may be a bunch of warm fuzzy Golden Rule-type stuff, but in practice that tends to bleed into, "It's immoral to bang drums in the streets when billionaires are trying to get some sleep.")
109: A lawyer can certainly be a bad person, just like a doctor can, or an architect, or a grocery store bagger. And can do professional work that assists a bad person in doing immoral things, certainly. But where the professional work consists of accurately informing a client of what the client may legally do, and then carrying out the client's instructions to do it, I think it's hard to argue that any immorality in the transaction comes from the lawyer -- the client is responsible for the client's decision to do whatever it is the lawyer has informed them they may do.
I'm not claiming that lawyers are never bad people, or that they never commit professional misconduct. But looking at a situation where a person does something legal but that you find morally distasteful, and thinking of that as a failure of legal ethics because a lawyer made it possible, seems mistaken to me.
I think it's hard to argue that any immorality in the transaction comes from the lawyer
And the concept of moral complicity?
Lawyer: Under Ruritanian law, you are entitled to throw the poor old woman and her children out of their house at Christmas because, although they did pay their rent last May, they were a 24 hours late and thus in breach of contract.
Client: Then make it so.
Lawyer: Consider it done, boss.
Surely the moral position for the lawyer in this instance would be, "Find somebody else to do your dirty work, you bastard."
111
I'm not claiming that lawyers are never bad people, or that they never commit professional misconduct. But looking at a situation where a person does something legal but that you find morally distasteful, and thinking of that as a failure of legal ethics because a lawyer made it possible, seems mistaken to me.
If there are some actions that are legal but not moral and you as a lawyer knowingly facilitate (albeit in a legal way) such actions then it seems to me that such facilitation also falls into the legal but not moral category. And of course lawyers have been known to facilitate actions which are illegal as well as immoral.
This is not a failure of legal ethics only in the sense that legal ethics are solely about what is legal and not about what is moral.
There's a reason one of the alignments is lawful evil.
112, 113: This isn't wrong, but it's not about the lawyering. The security guard who serves the eviction notice is complicit, the property manager who told the owner the rent was paid late is complicit. I don't see anything about legal advice that creates a different kind of complicity than any other sort of not-illegal assistance that anyone gives anyone doing something morally wrong.
112 -- Like Heebie seems to be doing, you start your hypothetical with the utterance of the lawyer: there's a question the precedes the lawyer's utterance.
There's a competing morality about the sanctity of contract. A society faced with competing demands has to work out a method of resolving them (and, obviously, a method for deciding how to work that out). Fortunately for me, the laws I work with didn't come from aliens or dictators. The state legislature makes choices, balancing various interests. They make choices differently than I would nearly all the time -- of course they do: I and my preferences are just another interest. The clients aren't interested in whether or not I approve of the law, or of them. They are interested in what rights they have been granted by the people's representatives.
Anyway, the decision-making apparatus of Ruritania has determined that being even a single date late with the rent is breach enough to justify eviction. The competing values have been weighed, and this is how they've come out. I don't find the lawyer who effectuates the client's desire to realize his rights, as society has drawn the balance, to be immoral, although amoral may well fit.
115
... I don't see anything about legal advice that creates a different kind of complicity than any other sort of not-illegal assistance that anyone gives anyone doing something morally wrong.
Well, knowing complicity is different than unknowing complicity and coerced complicity is different than uncoerced complicity and complicity in planning immoral actions seems a bit different than complicity in carrying them out.
That said, I can imagine responding in 112 with "Really? Why on earth would you want to do that?" And I would probably make a moral judgment about whether I thought it was a good enough reason.
117 -- But is the act of the lawyer at the end of 112 (drawing up and filing eviction papers) 'planning' or 'carrying out'? I think the latter. And I think the hypo and Heebie's examples assume an agency in the planning part that is way outside the norm. The plan doesn't start with an idea from the lawyer. It starts with the will of the client.
I might claim that the objective, disinterested unbiased etc rhetorical position of most officers of the court is itself at best amoral more likely possibly immoral.
Not merely similar or analogous, but directly connected and for the same purposes of the idea that economics and other social sciences can be done outside of a class consciousness and class loyalty.
"Objectivity" is immoral.
116
Anyway, the decision-making apparatus of Ruritania has determined that being even a single date late with the rent is breach enough to justify eviction. The competing values have been weighed, and this is how they've come out. I don't find the lawyer who effectuates the client's desire to realize his rights, as society has drawn the balance, to be immoral, although amoral may well fit.
I don't agree with this, it grants the laws of Ruritania a moral legitimacy they may not deserve. Would you apply this standard to the laws of Nazi Germany, apartheid South Africa or the slave South?
119
... The plan doesn't start with an idea from the lawyer. It starts with the will of the client.
The client starts with an immoral end and asks the lawyer how they can legally accomplish it.
116 is the problem, not the answer or an escape.
Process does not create a comfort zone.
Trapnel, you could try the new Irish pub that opened - De Vere's. I haven't been but I hear it's good. Also fun is The Davis Beer Shoppe. Let me think about non-drinking options...
And I suppose you folks don't think a lawyer should ever defend a guilty client, and that it matters whether Ernesto Miranda actually was guilty of the crimes to which he confessed.
He looked great in a hat with fruit.
121 -- I said I was lucky not to work in such a system. Are there flaws in the one I work in? Sure, absolutely. But it's not the Spanish Inquisition.
125
And I suppose you folks don't think a lawyer should ever defend a guilty client ...
I don't think a lawyer should knowingly make untrue arguments on a clients behalf.
... and that it matters whether Ernesto Miranda actually was guilty of the crimes to which he confessed.
Yes I think it matters not so much in his particular case but in general. And I think it matters whether there was a general problem of coerced (as opposed to unwise) confessions. If judges are going to invent a rule out of thin air that police must advise suspects not to confess I think it needs some sort of justification in terms of benefit to society.
James helpfully reminds us why we believe in the rule of law, even when the law doesn't produce a good result.
125:No, I don't think that
concrete labour 'becomes socially posited as abstract in virtue of its participation in the capitalist process of valorisation'.
I am into relations more than processes. A lawyer may serve the Law, her client, and her conscience and I have few difficulties with the last two. You may serve the Law on pragmatic grounds, in other words to make money or keep a license.
So I might represent Miranda not in order to protect the Constitution but to fuck up the pigs, so to speak. I would probably adopt a different rhetorical position in Court, of course.
The idea is to not make ourselves abstractions.
Except for the Revolutionary thing.
Damn. The blockquoted in 130 is Carchedi in dialogue with Arthur
CharleyCarp and LB aren't arguing that a lawyer may make false arguments. I think that one reason that lawyers are thought to be shady when they're not is that what they deal with are the apparently ad hoc distinctions that the law has to draw, and ordinary commonsense morality (and most interactions) doesn't recognize those distinctions.
E.g., the law says if you're late on a rent payment, the landlord in Ruritania can evict you. But, he didn't in May, so you think he didn't really care all that much. He didn't until he needed a reason to in December, and then he invoked the law. Is the lawyer who helps him being immoral? I'm inclined to think that if he is, it's not because he told the landlord what his options were. It would be a weird kind of law that you couldn't tell anyone about in case they knew about it.
Trapnel, you could try the new Irish pub that opened - De Vere's. I haven't been but I hear it's good. Also fun is The Davis Beer Shoppe. Let me think about non-drinking options...
Thanks, Parenthetical. As for 105, I don't know if much Occupy stuff is happening this weekend; the campus seems pretty empty, what with Thanksgiving and all. I can bike around and see, I suppose.
More Carchedi
The function of co-ordination and unity of the labour-process is part of the function of labour even though carried out in a despotic form.
IOW, management is labour that gains its power over labour from its simultaneous aspect as capital.
The point for me isn't necessarily the morality of the eviction or the morality of serving a nasty client. I can posit cases where both could be just, and a process, a vote of other tenants could be just
The point is claiming the right and power to evict by "virtue of the law." This is partaking and sharing power by attaching to an abstraction, this is, yes, an irresponsible enablement and empowerment of despotism. The "Law" is a despot, it has power and authority by virtue of what it is. But really isn't, it is given its abstract transcendental immaterial power by its "subjects"
Take it to the judge
Judge:Lil old lady with kids? No eviction.
Plaintiff:But your honor, the Law!
Judge:Oh yeah. Okay. Blah precedent blah Oregon blah case blah 1937 blah vs blah petition denied.
I don't even believe in the Law. It is always people.
I think CharleyCarp and LB are giving a nice demonstration here of the fundamental conservatism of law: the rules are here, they're our rules, so they ought to be enforced (fairly and even-handedly, of course!). When pushed, I doubt CC really believes that our "society has drawn the balance" about (for instance) the interests of the poor vis-a-vis the rich in a way that is fully legitimate, or ought to merit our respect, but he's willing--as all but the most activist or oppositional of lawyers must be--to essentially bracket those concerns, believing that things are legitimate enough so that his role in assisting those who can afford his services is immune from critique. If the system is good enough, then clarifying the rules of the system and recommending possible moves within it is morally acceptable, and advising my client about how to legally induce various tenants in a rent-controlled building to move out so that it can be replaced with luxury units counts as doing that, so it's immune from critique. Weber's legal-rational legitimacy in action.
Notice how this process bumps responsibility up, either to those actors powerful enough to simply brush away accountability, or to diffuse ("shareholders"), often purely imaginary actors ("society", "the people") who simply cannot exercise responsibility in any way that would reliably (there are always exceptions) discipline the structure supposedly underneath them.
Real moral responsibility is not so easily evaded. We're all complicit, even if denying this, to one degree or another, is a psychological necessity for basic functioning.
Also: in any given society, there are plenty for whom the law might as well have been imposed upon them by aliens or a dictator, for all the moral difference it makes. (Indeed, studies about the varying responsiveness of Congressional representatives to different slices of their "constituencies" would suggest this segment of society is fairly large.)
135: I'm making a slightly narrower claim -- that the complicity of a lawyer in wrongdoing isn't different from the complicity of any other employee or assistant of the primary malefactor. There's not a reason to judge the lawyer as more or differently responsible for the foreclosure than the guy who works for the bank preparing the papers -- measure it by the degree of knowledge of the wrong, and the essentialness of the specific actor's participation, but not because giving legal advice creates a different level of responsibility for what someone does with it than giving them any other sort of assistance does.
136: I think you're mostly right; lawyers' culpability isn't all that different from other that of other helpers. However, I do think law does possess a special feature that increases the moral responsibility of its users: its claim to legitimacy. Legal assertions shut down discussion, and work to preclude moral reasoning, in a way that's almost unique. (I found this most baldly stated by a judge when I was in voir dire for jury duty years ago--essentially, are you willing to disregard your own sense of right and wrong in order to follow the law?) Because this feature is both dangerous and, generally speaking, fraudulent--it's a systematic denial of the point I was making above--lawyers do have an extra bit of responsibility, since almost every use of their expertise has as a byproduct a reinforcement of this false view of moral reasoning and responsibility.
Most of 135, all of 136 and all of 138 are right on. Huzzah for trapnel.
137
I'm making a slightly narrower claim -- that the complicity of a lawyer in wrongdoing isn't different from the complicity of any other employee or assistant of the primary malefactor. ...
Lawyers have a privileged position within the system and I think this makes it reasonable to hold them to a higher standard.
However, I do think law does possess a special feature that increases the moral responsibility of its users: its claim to legitimacy.
'Claim' to legitimacy is an odd phrasing. Law is legitimacy -- not necessarily right and wrong, there are evil laws, and laws that occasionally have wrong results, but in an acceptably functioning system, to say that something is in accordance with law is precisely to say that it is legitimate.
If you say that lawyers commit wrongdoing when they give conduct an aura of legitimacy by accurately representing it as legal, you're coming very close to saying that it is wrong for there to be a legal system of rules at all, as opposed to each person taking moral responsibility for doing only what seems right to them.
Law is legitimacy
No. It is the discourse space where competing claims to legitimacy go to fight and die. This is the weird liberal place where an abortion decision, 51-49 or 5-4, is somehow settled, even only temporarily.
as opposed to each person taking moral responsibility for doing only what seems right to them.
Anarchy is hell, hell I say! We absolutely must have people betraying their consciences constantly or we are doomed.
Lb, CC, etc what's your explanation of why there is a stereotype about lawyers being sleazy, but not judges?
Also, in order to accommodate my brothers' families, hokey pokey's birthday party was moved a few hours later and there were to be muffins. This morning, one family headed to see a museum, the other to a park, and neither made it back for the birthday party. All my cousins and aunts and uncles, besides those getting married this afternoon, plus my grandma and parents were there, and it was lovely, I'm so furious at my siblings/sils that I could spit.
It's a slightly longer and more boring series of offenses over the past few days which have got me all riled up, but it amounts to having a hugely loving extended family that I adore, and bratty siblings.
Heebie, your siblings really like messing you over. End of story.
143: I think it's at least in part because one of the fundamental things lawyers do is represent parties with opposing interests, either in litigations or deals. If you're interacting with a lawyer, there's a good chance you're also interacting with another lawyer who's working against your interests. This makes people unhappy with them, and you get a lot of accusations of wrongdoing.
I will surprise everyone, including myself, by agreeing 100% with Trapnel. Law is fundamentally conservative. In many ways, IME, that's a good thing, but lawyers are basically participants in a system of protecting the powerful and legitimating authority (and, sometimes, navigating around it). And we get paid to do that.
Or economists. I think it works pretty much the same way with both.
Law is legitimacy -- not necessarily right and wrong, there are evil laws, and laws that occasionally have wrong results, but in an acceptably functioning system, to say that something is in accordance with law is precisely to say that it is legitimate.
You seem to think you're disagreeing with what I said, but from my perspective, you're either agreeing with it or providing a demonstration of how fundamental it is to the (non activist) lawyer's way of thinking that alternatives are literally unimaginable.
Legitimacy, in my mind and based on what I've read (a helpful survey), is moral rightness (or at least acceptability) that derives from systematic rather than one-off properties, especially input-based features. X is legitimate because we all voted, or because God said so, or because Daddy said so, or because we've always done it this way, or because it is the outcome of a system we all opted into and could leave at any time. Legal legitimacy is only one species of legitimacy, though it's lately become quite hegemonic.
LB's claim--that so long as the legal system as a whole is "acceptably functioning", then of course following its rules insulates one from moral critique is either quite false, or assuming a level of "acceptable functioning" that has never been achieved in any legal system in history.
One basic question that proponents of legal legitimacy rarely take seriously enough is simply: why does the fact that some parts of this collection of rules and roles and offices function tolerably well confer legitimacy on other parts, that might not work so well? The law may hold itself out as a seamless web, but why should we accept it as a single entity?
The law may hold itself out as a seamless web, but why should we accept it as a single entity?
Because if we pick the parts we accept what's to stop the other assholes from picking different parts that they don't accept?
Trying to change parts that suck is one thing, but undermining the ideal of legal legitimacy is much more likely to result in Bank of America getting permission to foreclose houses without proper paperwork and to shit on the carpet of where ever the foreclosed-upon moves to next than it is to make it easier for somebody to fight foreclosure.
then of course following its rules insulates one from moral critique
Not something I've either said, or approached saying: see my 137. Lawyers can be morally responsible for doing wrong or in assisting wrongdoing, under similar standards that you would judge anyone else for assisting a wrongdoer.
You seem to be making a claim that by working within and interpreting the legal structure we have, lawyers are responsible for its imperfections in a manner that laypeople who take advantage of the existence of a functioning legal system are not, and I don't think you've justified that.
I suppose I'm not sure what you're trying to say in 141, then. Were you saying that you believe the concept "legitimacy" has no content beyond "is in accordance with law," and hence has no implications about rightness or wrongness?
(Because if so, I think that's a rather narrow, unhelpful, and non-standard of legitimacy, at least within political theory and my sense of non-academic versions thereof.)
153
You seem to be making a claim that by working within and interpreting the legal structure we have, lawyers are responsible for its imperfections in a manner that laypeople who take advantage of the existence of a functioning legal system are not, and I don't think you've justified that.
Many of the imperfections in the legal system are there because they serve the guild interests of lawyers and I think it is perfectly justified to hold lawyers especially responsible for this.
154: Yes. Legitimacy means "in accordance with law". There is a great social benefit from having a functioning system of law on which people can, for the most part, agree, even an imperfect one. And while bad laws should be changed, and flawed laws should be improved, while that process is going on, the laws (within an acceptably well-functioning system) are legitimate, and I don't believe there's a moral responsibility to conform one's behavior to laws as they would be in an earthly paradise rather than the law as it is.
I agree, that is, with what Moby's saying. We have laws that govern the process of foreclosure. They are not ideal. But if you reject them as illegitimate rather than simply recognizing them as not ideal, you aren't left with better, more just laws -- you're left with no law at all, which is not a good position for the powerless.
It's why we have wood floors until we pay off the note.
You're left with "this is what the rules say, and this is how they came to be, and these are the consequences likely to flow from them; now use this information to act rightly."
That sounds like the advice a lawyer would give acting within the system: stating and interpreting the rules as they are.
160: The people that would actually listen to that aren't the ones for whom you need the laws so much.
Lb, CC, etc what's your explanation of why there is a stereotype about lawyers being sleazy, but not judges?
This is an odd way of justifying an offensive stereotype.
I'm not really disagreeing much with Trapnel either. Much of law involves arbitrary choices -- lengths of limitations periods, what is, and what isn't, covered by the Statute of Frauds, what is tax deductible -- but they have to be made, and once made, if made in the proper manner, may be accepted as legitimate.
You are, of course, free to argue that the limitations period for your breach of contract claim ought, morally, to be 10 years; that my oral promise to pay the debts of Heebie's siblings is enforceable; or that you may deduct from your income a reasonable value (by the word, maybe) for your contributions to humanity via comments on Unfogged. Your lawyer is not free to make any of these arguments, but you may do so, following your own moral compass.
The sense in which legitimacy simply means "in accordance with law" is a limited sense and often not helpful. People often disagree with various aspects of the law. Sometimes this disagreement is relatively minor: "I wish the law were different here, and I'll work to change it, but the current state of the law is within the bounds of what I'd accept as legitimate." But sometimes this agreement is, for lack of a better word, radical: "The current state of the law is so unacceptable that I refuse to recognize the law and its operations as legitimate." Right? We might disagree about where to draw this line, or whether this or that legal regime is so awful that it's better to deny its legitimacy outright than to work to change it while acknowledging its legitimacy. But "legitimacy" is a bigger, richer concept here than "in accordance with current, locally binding law." To equate the two is a political move that has the effect of denying the possibility of radical disagreement with the current order.
157
... and I don't believe there's a moral responsibility to conform one's behavior to laws as they would be in an earthly paradise rather than the law as it is.
You certainly seemed to believe that McQueary and Paterno had a moral responsibility to do more than the law required of them.
which is not a good position for the powerless.
Tell that to the Libyans.
We are probably using "legitimacy" and "authority" in opposite ways.
Qadafi almost certainly was, because he wrote the Laws, according to your definition the "legitimate" ruler of Libya. Which is why I like definitions of "legitimate" that have more to do with consensus and popular will.
Now if (you say) Qaddafi* was "legitimate" but lacked "authority" in the sense that no one obeyed him or needed to obey him, you I think are moving to a strange definition of authority.
Authority is the gun and stick...the actual real power.
Legitimacy is the reason people obey when the gun is holstered. If the people are subject to, subservient to the law, the people, through the law, grant legitimacy.
But legitimacy comes from the people, not from the fucking law.
Read the fucking Declaration, why dontcha
165 -- It's a big world, and there is room for the Montana Freemen. Except there isn't, if they want to evade the tax laws, cloud people's title with frivolous judgments entered in their own little ad hoc system, and all the rest.
There have been a rash of cases, around the country, where people squat in an abandoned house, and file papers purporting to take ownership, usually by God's command. Now if there really was a God, I don't doubt that he could decide to give any particular person any particular bit of real estate. As a society, though, we're not accepting the legitimacy of this sort of thing, and, conservative though it makes me, I'm not sorry in the least that we are not.
166: Lots of people's opinion there was that for little things you can't expect people to do more than what's formally required of them, but when you're talking about *raping children* it's a little different.
165: I can agree with that. Rejecting the legitimacy of the legal system as a whole is sometimes going to be the morally right thing to do. But it's a very radical position to take, and one with important consequences -- there are serious benefits for the powerless, as well as the powerful, from living in a society with a functioning system of law.
Every person in a society has the same moral responsibility to decide for themselves whether to treat the law as legitimate -- lawyers do not offend against that responsibility (more than anyone else who takes advantage of the existence of a functioning legal system) by giving advice on the nature of the law as it is.
165:To equate the two is a political move that has the effect of denying the possibility of radical disagreement with the current order.
Fuckin yo, Bave
Fucking legalist depots. It's true.
to decide for themselves whether to treat the law as legitimate
Wait, where did the "Law is legitimacy" (141) go?
172:It was governed by the caveat "within an acceptably functioning system" all along. You've got to decide for yourself what an acceptably functioning system is -- in your case, I understand that anything short of the earthly paradise requires firebombing. Me, I'm willing to countenance a fair amount of imperfection in exchange for the benefits of peace and public order; possibly too much, it's a hard balance to strike.
Every person in a society has the same moral responsibility to decide for themselves whether to treat the law as legitimate
I don't know what this means. Every person does not have an equal right to decide for themselves whether a particular expense is tax deductible. Whether my title to the laptop I'm typing on is sufficiently legitimate that it would be immoral to come in when I'm gone and take it. Whether the law that proscribes my running down a pedestrian on the way home is worthy of respect.
170
Every person in a society has the same moral responsibility to decide for themselves whether to treat the law as legitimate -- lawyers do not offend against that responsibility (more than anyone else who takes advantage of the existence of a functioning legal system) by giving advice on the nature of the law as it is.
This conflates using the law for moral purposes and using it for immoral purposes. And it continues to ignore the legal profession's special responsibility for the current state of the law.
JBS, I'm not sure I know what 'state of the law' you're talking about here. What imperfections are driven by guild protections?
173
172:It was governed by the caveat "within an acceptably functioning system" all along. You've got to decide for yourself what an acceptably functioning system is -- in your case, I understand that anything short of the earthly paradise requires firebombing. Me, I'm willing to countenance a fair amount of imperfection in exchange for the benefits of peace and public order; possibly too much, it's a hard balance to strike.
This assumes you have to accept or reject the system as whole. But one can reasonably believe that system is mostly legitimate but in certain cases gives results so perverse that it is morally wrong to utilize the legal system to achieve them. The system would not fall apart if lawyers refused to assist clients seeking immoral results.
157: I'm still a bit confused about what you believe, LB. You claim to be saying that legitimacy means only "in accordance with law", but your very next sentences impute to legal enactment some direct moral consequences, using the standard argument about the value of coordinated expectations; though I'm having trouble puzzling out exactly what you believe these consequences to be.
I have to run, so don't feel any pressure to clarify, but I just wanted to restate my confusion.
168:politics is messy, often ugly, and really hard. Sometimes violent.
174:Or whether to camp overnight in the city park.
I might concede that an individual does not have the right to claim that a particular law is illegitimate without the prior principled decision that the whole of the Law is illegitimate.
To deny one law is to go outlaw.
Which answers 173
174:I hope you are restrained from running down pedestrian by other factors beyond reverence and respect for the Law.
I do not ever "obey the law"
I do what I want and most times the law agrees with me.
176
JBS, I'm not sure I know what 'state of the law' you're talking about here. What imperfections are driven by guild protections?
Lawyers have a guild interest in making work for themselves by for example making laws complicated and by encouraging lawsuits.
Software patents are not in the interest of society as whole but we have them in large part to make work for patent attorneys.
To be adult is to be self-aware
I pay my taxes. There are a lot of reasons I pay my taxes:because I want to avoid jail, fines, and hassles;because I think it is fair to contribute to society; because although there is gov't spending I disapprove I know other don't share my preferences;etc.
What proportion of my taxpaying is an internal relation of willful and cheerful submission to a higher authority? An isolated reverence for law? Very little, I think.
People don't internally submit to power, authority, and force (although they fake it, with ressentiment). It is the nature of the id to be an independent selfish animal. We obey to get pleasure and avoid pain, not because we enjoy obeying.
Except lawyers and their ilk, who do have reverence for law, who do obey for the sake of obeying, who believe they themselves would be all GTA on the streets if the law didn't stop them, thank the law.
Why?
178: I think you're identifying a contradiction or inconsistency here, but I can't quite tell what it is. When you're around, if you still want clarification, spell out what you're asking a little more?
Your election sounds really weird. I thought you thought your guy was a shoo-in.
So did I, so did I.
Lawyers making moral judgements is even worse than anything else, given that it would result in the creation of a separate legal system before you got to access the real one. This separate one would be run by lawyers making decisions without recourse to anything but their own sense of right or wrong, which...
186: Heh. Of course lawyers aren't necessarily making moral judgments when they circumvent the "real" legal system; they're making judgments of expedience, which are part and parcel of our institutional structure.
The helpful survey Trapnel links in 150 really is helpful.
Speaking of lawyers, behavior, law and morality; I just read this interesting piece in The Smithsonian on the jury-tampering allegations against Clarence Darrow. Touches on some of the themes of this thread. Author's view is that the evidence points to his having done it, but he had his reasons.
This is an odd way of justifying an offensive stereotype.
This is nonsensical. "What's your explanation of why there is a stereotype about lawyers being sleazy, but not judges?" is a straight question about a stereotype that really does exist. LB gave a reasonable answer.