“I think it’s the first general introduction to philosophical legal ethics,” said Tim Dare of Bradley Wendel’s Ethics and Law: An Introduction (Cambridge University Press, 2014). “There will be more, I’m sure, but they will be influenced by Brad’s book, which is a groundbreaking book.” Dare, associate professor of philosophy at University of Auckland, New Zealand, was speaking at a celebration honoring the book, held in the MacDonald Moot Courtroom on April 21. Joining him in the discussion were Greg Cooper, associate professor of philosophy at Washington and Lee University; Michelle M. Moody-Adams, the Joseph Straus Professor of Political Philosophy and Legal Theory at Columbia University; and Wendel, a professor of law at Cornell.
Wendel “is uniquely well placed to bring philosophical ethics and jurisprudence to bear on the topic,” said Dare, who offered some background on philosophical legal ethics. He traced the field from its first wave in the late 1970s and early 80s, through a second wave in the late 90s, to the current third wave, in which, he said, Wendel is one of the leading figures.
Dare then moved on to challenge Wendel on a few points, focusing particularly on his treatment of the relationship between ordinary morality and professional ethics, which in the book is represented through the metaphor of a bridge. In this bridge model, Dare explained, material from ordinary morality is used to build a practice or institution that, once established, serves as the immediate ethical framework for practitioners while still allowing, or perhaps demanding, some reference back to outside morality. Speaking next, Cooper praised Wendel's book for its interdisciplinary approach, its acknowledgement of the variety of roles within the legal profession, and its rare recognition that clients are "something beyond bundles of legal rights." Cooper further elucidated the difference between first-wave scholars, who would like to see lots of traffic across the bridge, and third-wave scholars like Dare, who "wants you to schlep a bunch of stuff from ordinary morality across the bridge, and then build the institution, and then blow up the bridge." Adding another twist on the metaphor, Cooper pointed out that, "at the end of the day, when you punch out, you go back across the bridge."
Moody-Adams praised Wendel for "the work he is doing to bring together a subtle, finely textured appreciation for what lawyers actually do with a sense that there are still philosophical problems" involving both ethics and the very nature of law. Addressing what she saw as a tension in the book between jurisprudential thinking and legal practice, she proposed that "the question of what the law is and what it ought to be, as much as the question of what moral values it ought to embody… can be implicit in the practice of sometimes the simplest kinds of cases."
"Boy did we overwork the bridge metaphor," said Wendel in his response to the commentators, mentioning that they had discussed variations including gates and trolls. The bridge, he said, was meant to convey some essential connection between the obligations of a professional role and the moral agency and integrity of the role's occupant, though the exact nature of that relationship remained a problematic issue. Referring to the theme of contention between philosophers and practitioners, Wendel characterized his approach as coming from "the other side": "Rather than starting with ethical justifications and then using them as a standpoint to evaluate professional practices, what I tried to do . . . is to take a professional practice as a given and then see whether it's possible to give a philosophically satisfying account of it."
Wendel remarked that one thing he has tried to do in his work is to bring the fields of jurisprudence and legal ethics closer together. "I'm glad that what came out of the book is the sense that, in order to attend to what lawyers ought to do, one ought to attend to jurisprudence, and, conversely, when doing jurisprudence, one necessarily has to engage with the legal profession as an institution." He ended by hinting at a longer-term project that would be informed by this discussion.To view the book celebration, please click here.