ON BEING A CHRISTIAN AND A LAWYER: Law for the Innocent by Thomas L. Shaffer


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A scholarly attack on the tradition of American legal positivism--the theory that ""it is necessary, in working with law, to set morals aside."" Notre Dame law professor Shaffer argues that modern-day attorney-client relationships are characterized either by the ""ethics of role"" (the lawyer does what the client wants, or tells the client what to do) or by the ""ethics of isolation"" (moral statements, but no dialogue). It is a delusion, Shaffer suggests, to pretend that conscience has nothing to do with serving a client or that lawyer and client do not influence each other. In place of ""adversary ethics,"" Shaffer urges the profession to adopt an ""ethics of care"": a professional relation marked by openness in moral dialogue, in which the lawyer's calling becomes a form of ministry. Telling the client, ""it's up to you,"" after a full exchange of views, is not the same as saying ""whatever you want."" How should the lawyer-as-minister handle the defendant who intends to perjure himself? If the defendant wants to lie, his lawyer shouldn't abandon him, but should urge him to tell the truth. If he lies anyway, the lawyer hasn't participated--""the outcome of efforts to counsel cannot determine the moral quality of the efforts themselves."" For Shaffer, the American legal system's avoidance of moral ""witnessing"" is nurtured by the legal education; the (often unstated) choice is not against morals, but ""against morals as having intellectual importance."" Law-school instruction either flatly avoids moral questions or, by failing to explore students' stated moral positions, suggests that there is no discipline in moral discourse. Law school is where things have to begin changing: there, ""we can still try to tell the truth to one another."" In elaborating his ethical view, Shaffer segues neatly from Barth to Buber to Trollope's Orley Farm to American legal history to the lives of Thomas More and Franz Jagerstatter. This is an unremittingly ""learned"" book--tough sledding for the intellectually unprepared--but intelligent, well-argued, and bound to become controversial among law-and-ethics scholars.

Pub Date: April 25th, 1981
Publisher: Brigham Young Univ. Press