ABSTRACT
We live in deeply, and I daresay disturbingly, democratic times: populism is the new order of politics. Well before this populist wave made its force felt in the election of Trump in America, the “Brexit” vote in Great Britain, and the resurgence of “blood-and-soil” parties across Continental Europe, three major legal ethicists were making the will of the people the foundation of the lawyer’s professional role. They rightly saw their position as a revival of neutral partisanship, the view that a lawyer’s basic function is to advance a client’s interest to the full extent the law allows, subject to few if any extra-legal limits to be found in either ordinary morality or social justice. They also saw their position as placing neutral partisanship on a new, or at least refurbished, foundation: the will of the people as reflected in democratically enacted law.
This chapter reviews this trinity’s neo-orthodox neutral partisanship. It begins by showing how the new neutral partisanship shores up the old, which was heavily discredited in theory (though hardly curbed in practice) by critics like William Simon and David Luban. It then shows how concessions that the new neutral partisans make to both ordinary morality and social justice reveal a paradox: their position is not fundamentally democratic, in the sense of taking the people’s will to be the unquestionable source of political norms, but basically republican, in the sense of examining political norms, like all norms, in conscientious dialogue among those who devote themselves to finding and furthering the common good. Our trinity’s reluctance to embrace a fully democratic reboot of neutral partisanship leaves us with the ancient assurance of Plato’s Republic: when the wise see where the will of the many will lead, they find they cannot turn from the light of dialogue back to the darkness of unexamined lives and mass movements.
