ABSTRACT
The late Professor Tom Shaffer wrote a number of important articles from the late 1970s through the early 2000s, elaborating on themes such as the inextricability of morality from stories we tell ourselves within communities; that the task of ethics is, essentially, understanding how to be a good person; that the lawyer–client relationship is a moral encounter and opportunity for conversation; and that ethics is opposed to power, including legal order. I find it literally impossible to imagine the discipline of legal ethics without Tom Shaffer’s work. However, it is less well known and less frequently relied upon than it should be. Perhaps this is the result of his radical skepticism about the goodness of the institutions of the legal system, influenced by his immersion in the theology of Stanley Hauerwas and John Howard Yoder. As the title of an influential paper put it, ‘faith tends to subvert legal order.’ Most teachers of legal ethics instruct lawyers instead to follow the civil religion of liberal democracies and worship the law. To Shaffer this was idolatry, but that response located his views out of the mainstream of secular academic scholarship. In less explicitly theological language, however, a similar claim was repeated countless times by scholars allied with the critical legal studies, critical race theory, and feminist legal theory movements: Law can be an instrument of injustice, serving the cause of those who hold power in the political community. Of course, it can also be a means of liberation or the limitation of public and private power, but for Shaffer the important thing is to remember that ‘legal’ does not necessarily mean ‘just,’ and justice for religious people requires them to be faithful first to God’s calling. In secular terms, Shaffer strongly denies the claim of role-differentiated morality. For Shaffer, there is no separate morality for personal and professional life.
This chapter seeks not to reinterpret Shaffer’s scholarship or detach it from its foundation in the ethics of religious communities. By highlighting elements such as narrative, virtue, and community, however, it may be possible to persuade scholars who do not share Shaffer’s commitments to a radical, prophetic form of Christianity that his body of work still has a great deal to offer secular legal ethics. Importantly, one lesson is that the law governing lawyers embodies a moral aspiration. There is no morally neutral way to understand the significance of the lawyer–client relationship and the duties it imposes, many of which are quite demanding and some of which are at odds with other ways of thinking about being a good person. Another lesson is that the most important resources for reflecting on the moral significance of representing clients are not to be found in abstract moral theory, but in the stories we tell in our communities about heroes and scoundrels. Shaffer follows Alasdair MacIntyre in believing that abstract theory has yielded only conceptual confusion, but clarity can be restored by returning to our story as a particular people. This sounds like a deeply conservative vision, and it is, particularly in his valorization of the archetype of the gentleman, but it is not reactionary. Shaffer is drawn to the stories of subcommunities, like those of Italian-American immigrant lawyers in the 1920s. His is not a homogenizing vision of community, but one that celebrates the pluralism of narratives within the larger community of American lawyers. The central feature of Shaffer’s ethics is the critique of what he calls radical individualism – the idea that we can understand what makes a good life by considering people in isolation from their communities. Shaffer’s scholarship is still outside the mainstream, in its emphasis on virtues over rules, doing ethics from the bottom up by being attentive to the stories people tell, and the insistence that the law has very little to tell lawyers about ethics and justice. But it is the strangeness of his vision that is worth holding onto. To appropriate another of his article titles, the idea that the adversary system ethic is ‘unique, novel, and unsound’ repays our continuing reflection.
