Russell and Duenes

Professional Responsibility: What is Justice? How Do We Know?

with one comment

As Douglas Wilson once said, we ought not put down a tool we’re using for a job until the job is done. One of the jobs that we Christians need to do better is to continue to press for definitions of things and for the basis of those definitions. And we have ready tools from God for pressing for such things, for they are epistemological questions, that is, questions that get to the issue of how we know what we know. Too many definitions are simply assumed, too many justifications for moral pronouncements are smuggled in by those who do not assent to those justifications. Rather, they only borrow them as one might borrow money that he doesn’t have.

We might like to think that people should be robust in their condemnation of something like, say, torture, but then we find that many are not, and we wonder why. We think that the wrongness of torture is something that people “just know.” But do they? And can a culture maintain robust condemnatory views of certain behaviors like torture if that culture can provide no robust and reliable basis for condemning such behavior? It’s all very good when we can get agreement that certain behaviors are wrong, but we will not get such agreement for long when we can find no agreement upon a strong foundation as to why it’s wrong. If torture is wrong, if racism is wrong, if oppression is wrong, if injustice is wrong, we should like to know why. Christians have a proper basis for saying why these are wrong, and we should not shrink from it: Because God says so. But if no God says so, then who is to say so? And why should we obey him or her?

These thoughts were in my mind as I read the Preamble to the American Bar Association’s Model Rules of Professional Conduct. Right out of the gate, the Preamble says to aspiring lawyers: “A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.” But what is “justice,” and how does the aspiring lawyer know whether he or she will be enhancing the quality of it? Further, why does he or she have a “special responsibility” to care about justice? I have a basis for saying we do, and perhaps others do too, but I wonder if in our three years in law school we’ll get to spend much time considering the question.

The Preamble goes on to tell me that I “should seek improvement of the law.” What is the end toward which I ought to be improving it? What would count as “improvement?” Based on what authority? And if I’m not accountable to anyone higher than the ABA, why ought I to “seek to improve the law?” Again, I think I should, but I answer to Someone higher than the ABA and my own personal choices.

The Preamble continues: “A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance. Therefore, all lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel.” So I should care that the poor are often treated unjustly because they cannot afford justice, and I do care. But if many, or even just some, don’t care, upon what basis are we going to tell them they must? Is it enough to tell us, as the Preamble does, that we must be “guided by personal conscience and the approbation of professional peers?”

The Preamble concludes: “The legal profession’s relative autonomy carries with it special responsibilities of self-government. The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar. Every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer should also aid in securing their observance by other lawyers. Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves.” I heartily agree. Yet we’re asking the guild of lawyers to carry out the “special responsibilities of self-government,” a significant task, while equipping them with only the apparent justification of keeping the profession independent and serving some vague “public interest.”

These observations point up the dire need for a return of robust moral discourse and authority to our law schools and the legal profession in general, with discussions about the definitions, bases, and justifications for justice, honesty, betterment, care for the poor, and more. This is the mantle of Christian education, and I pray that many will see and respond to the need of the hour.

-D

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Written by Michael Duenes

August 30, 2012 at 9:21 pm

One Response

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  1. If one uses the terms and definitions created by another, what is the result?
    pro-life uses the same terms/words as pro-choice…? The result???
    Not to difficult to figure out the legal meaning of parent, child, birth, born, etc..to understand the game being played. All about law of commerce.
    Read an interesting article about a guy who proposes to use the term/word “eviction” instead… change the war of words to achieve a peaceful solution which met both sides requirements, and technology could make it possible.

    Below are 2 replies to my request for “definitions” in a discussion:

    ***************************************************
    1)
    Ever look up the definition of the word ‘definition’? Upon preliminary examination we can see how there is a prefix in there ‘de’, followed by ‘finition’, which would be ‘finite’ or finished, or limited, or complete. Prefixed with ‘de’ we know that all definitions are ‘un’, ‘no’ & ‘not’ finished, limited or complete. Furthermore we can see according to the Merriam Web-stirrers dictionary that definitions are; a formal proclamation of a Roman Catholic dogma. Excuse me that’s, Definition; “an unfinished with no limitation not (to be) completed formal proclamation of a Roman Catholic dogma.”

    *************************************
    2)
    The TERM “Email” means this instant communication.

    that is a long way from “definition”. Terms are NOT words. As words have numerous meanings but TERMS have specific meanings. But only the SETTLOR determines what TERMS will a USE be made of within His Email. Therefore the Settlor is Sovereign over His Creation.

    *************************************
    My original email continued:

    “Most creatures take the world outside as they find it and instinctively become partners with the environment. Man is the one creature who can alter himself and his surroundings, as the geologist John Hodgdon Bradley has wisely observed, yet he is perhaps the most seriously maladjusted of all living creatures.

    He is the one creature who is able to accumulate verifiable knowledge about himself and his environment, and yet he is the one who is habitually deluded. No other animal produces verbal monsters in his head and projects them on the world outside his head. Language is apparently a sword which cuts both ways. With its help man can conquer the unknown; with it he can grievously wound himself.” – Stuart Chase: The Tyranny of Words; pg. 13-14.

    *************************************

    “Anyone who has the slightest understanding of how cultures work knows that defining a culture, saying what it is for members of the culture, is always a major, and even in undemocratic societies, a democratic contest. There are canonical authorities to be selected and regularly revised, debated, re-selected, or dismissed. There are ideas of good and evil, belonging or not belonging (the same and the different), hierarchies of value to be specified, discussed, re-discussed, and settled or not, as the case may be. Moreover, each culture defines its enemies, what stands beyond it and threatens it. For the Greeks beginning with Herodotus, anyone who did not speak Greek was automatically a barbarian, an Other to be despised and fought against. An excellent recent book by the French classicist Francois Hartog, The Mirror of Herodotus, shows how deliberately and painstakingly Herodotus sets about constructing an image of a barbarian Other in the case of the Scythians, more even than in the case of the Persians.

    The official culture is that of priests, academics, and the state. It provides the definitions of patriotism, loyalty, boundaries, and what I have called belonging. It is this official culture that speaks in the name of the whole, that tries to express the general will, the general ethos and idea which inclusively holds in the official past, the founding fathers and texts, the pantheon of heroes and villains, and so on, and excludes what is foreign or different or undesirable in the past. From it come the definitions of what may or may not be said, those prohibitions and proscriptions that are necessary to any culture if it is to have authority.

    It is also true that in addition to the mainstream, official, or canonical culture, there are dissenting or alternative unorthodox, heterodox cultures that contain many anti-authoritarian strains that compete with the official culture. These can be called the counter-culture, an ensemble of practices associated with various kinds of outsiders–the poor, the immigrants, artistic bohemians, workers, rebels, artists. From the counter-culture comes the critique of authority and attacks on what is official and orthodox. The great contemporary Arab poet Adonis has written a massive account of the relationship between orthodoxy and heterodoxy in Arabic culture and has shown the constant dialectic and tension between them. No culture is understandable without some sense of this ever-present source of creative provocation from the unofficial to the official; to disregard this sense of restlessness within each culture, and to assume that there is complete homogeneity between culture and identity, is to miss what is vital and fecund.” – Edward Said: The Clash of Definitions.

    *************************************

    dan

    September 1, 2012 at 1:00 pm


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