This is Part 1 of the 3-part series on the work of Thomas Shaffer, an American lawyer and writer on ethics.
There is a
powerful scene at the end of a West Wing
episode. The fictional President Jed Bartlett had spent almost the entire
episode agonizing over whether to commute a prisoner’s death sentence. In the
end, not wanting a political backlash, he let the prisoner go to his death
despite the many pleas from his advisers.
Now, earlier in the episode, President Bartlett had a casual conversation
with his old parish priest in which he requested to be called “Mr President”
rather than by his first name. “It’s not ego,” he had said – but as president,
he had to make tough decisions – “It's
helpful in those situations not to think of yourself as the man but as the
office.” Yet very pointedly, as the episode closes, and President Bartlett
kneels in the Oval Office to make confession, the priest calls him simply, “Jed.”
The point is that ultimately, he was accountable to his Maker for all of himself.
This scene encapsulates on the
highest level the schizophrenic selves our professional lives have become. We
hold to one set of morals for our personal lives and another for our work
lives. This observation is a centerpiece of the scholarship of Thomas L. Shaffer. [1]
Shaffer, a lawyer and a Catholic, argues that the separation of legal ethics
(in the form of codes and regulation) from personal ethics (which appeals to conscience
and character) is undesirable.[2]
We don’t need more principles or statements. We need stories. We need teachers.
And ultimately, we need heroes – heroes that even better the likes of Jed
Bartlett.
In this series of blog posts, I will
explore the major themes of Shaffer’s work. In this first post, I will discuss
Shaffer’s idea of the gentleman-lawyer – one who makes no distinction between
private and public morals. In the second post, I will discuss Shaffer’s model
of the lawyer-client relationship. In the final post, I will discuss Shaffer’s idea
of the servant lawyer.
There was a time, Shaffer observes,
when there was no separation between a lawyer’s conscience and regulation. In
his native America, that was in the colonial days until the end of the Civil
War. Lawyers were typically affluent, erudite and powerful. Theirs was a
righteous and noble profession. Their ethics was the ethics of a gentleman. [3]
These men carried the same set of morals in private as in public. Atticus Finch
(To Kill a Mockingbird) typified the
gentlemen’s ethic when he said, “I can’t live one way in town and another way
in my home.”[4]
And yet, for all his apparent
integrity, Shaffer recognizes that the gentleman-lawyer is given to hubris – “I
am my client’s conscience keeper”,[5]
he would say. And for all his appeal to Scripture, the gentleman-lawyer is only
nominally Christian. The Bible is a source book for legal philosophy but has
little relevance to day-to-day moral behavior. Judge Sharswood speaks of the
“high and pure morality that breathes from the Sermon on the Mount” but goes on
to say that morality is of no use in a law office.[6]
Further, a deeper idolatry was present – a worship of the American civil
religion.[7]
The gentleman-lawyer is above all a patriot, with a Jeffersonian sense of
responsibility to his country.[8]
With the rise of the robber barons
in the late nineteenth century, lawyers found a way to separate their personal
ethics from their professional duty.[9]
According to Shaffer, lawyers in New York City developed the adversary ethic to
justify working for these industrialists.[10]
The adversary ethic says that lawyers should single-mindedly advocate for the
interest of their client, and justice will result when all lawyers do the same
for their respective clients.[11]
Another factor that contributed
to the separation of religious and professional life has to do with the
positions of in middle-class families.[12]
Increasingly, the world of commerce and professions were occupied by men while
the moral education of children were left to the women. The result, Shaffer
argues, was “feminine control of ... the critical years of moral formation for
boys who would later become doctors and lawyers.” Home became a place of
relative purity while the professional world became a place of relative
callousness. This explains why morality became an increasingly private matter
not useful to the professional world. Another lawyer, Joseph Allegretti, argues
that code and regulation filled the void that religious wisdom used to occupy,
resulting in a legalistic, rationalistic mindset that excludes questions of
character and virtue.[13]
The theological
justification sometimes given for this separation of private, religious life
and public, professional life is Luther’s doctrine of the two kingdoms.[14]
Paul says in Romans 13:1:
“Everyone must submit himself to the governing authorities, for
there is no authority except that which God has established. The authorities
that exist have been established by God.”
Luther argues that
in the kingdom of law, civil authorities are instituted by God to keep peace
and order. But in the kingdom of the Gospel, believers are not subject to the
state but subject to God. Luther’s doctrine arose in his historical context, at
a time when princes and popes were embroiled in political as well as
theological battles. Luther’s doctrine means believers should obey civil
authorities, just as Paul commanded. But Luther also taught that the kingdom of
law is limited in its authority whereas the kingdom of Gospel is one of salvation.
Even princes were subject to the kingdom of the Gospel in their hearts. And
unlike medieval Christianity, Luther did not accept that the Beatitudes were
“counsels of perfection” for nuns and monks, they were also commanded for
ordinary working Christians.
The righteousness that Jesus teaches, a righteousness that exceeds
even those of the Pharisees, is perhaps why many lawyers shy away from taking
the Bible seriously in their professional lives. But Shaffer wisely does not
prescribe legal ethics from the Bible. He eschews any codes made by associations
he calls little more than pressure groups.
Shaffer advocates a better way, a way that maintains a person’s
coherence and integrity – stories.[15]
Fictional stories, he says, communicates morals to a community more quickly
than biographies.[16]
They describe the deeds of a hero, and heroes teach and inspire in a way principles
or statements do not. After all, most of us were attracted to the profession by
a hero, a compelling character who embodies for us the goodness of the
profession. Shaffer says,
“I have claimed that lives are prior to principles. I do not appeal
here to logic. The sort of story I’m talking about speaks to its reader
directly, from life to life, without the mediation of concept or of
explanation... We are formed by their stories in a way that is analogous to the
way we are formed by the lives of people in our families.”[17]
John Yoder acknowledges the value of narratives in loosening up the
rigidity of rules, but disputes that we can dispense with rules altogether.[18]
In his view, once you know the rules,
stories are powerful to heighten empathy, imagination and able to teach more
effectively. But both are required.[19]
The gentlemen-lawyers of stories and film, like Atticus Finch, teach
us by the coherence of their professional and personal lives. But the actual gentlemen-lawyers
of history, by Shaffer’s own analysis, could not survive the abstraction of
principles from the person. John Yoder justifiably retorts that “good stories
about good people” are at best a corrective to the rule-based approach to
ethics.[20]
But that in itself is very valuable. Like Shaffer, a Catholic growing up in
Protestant America, Christian lawyers stand somewhat outside of the fray and
offer a powerful dissenting opinion that can save us from the cynicism and
moral paralysis of the profession.
[1] This theme is present in two of his major
books, Shaffer, Thomas L. Faith and the Professions. Utah: Brigham Young
University Press, 1987.and Shaffer, Thomas L. On Being a Christian and a
Lawyer: Law for the Innocent. Utah:
Brigham Young University Press, 1981. It is also explored in his journal articles
Shaffer, Thomas L. "American Legal Ethics." Theology Today 59,
no. 3 (2002): 369-83. and “The Christian Lawyer – an Oxymoron?” America 175, No. 16 (November 23 1996)
12-17
[2] Shaffer, “American Legal Ethics,” 370
[3] An overview of the history of the
“gentleman-lawyer” and his subsequent demise is discussed in Shaffer, “American
Legal Ethics”, 369-375 and in Shaffer, Faith
and the Professions, Chapters 2 and 3
[4] Shaffer, Faith and the Professions, 76
[5] The sentiment is attributed to Judge
George Sharwsood, a nineteenth century judge of the Pennsylvania Supreme Court.
Shaffer, “American Legal Ethics”, 374
[6] Shaffer, Faith and the Professions, 40
[7] David Hoffman, the father of American
legal ethics, set the federal constitution beside the Bible and referred to the
lawyers he trained as “ministers at a holy altar”: Shaffer, “American Legal
Ethics,” 374
[8] According to Shaffer, the gentleman-lawyer
is typically a Jeffersonian Republican lawyer. They were neither secular nor
biblical. The Bible was carefully included in what they did, but it didn’t mean
anything that couldn’t have been based just as well on Jeffersonian American
Civil Religion: Shaffer, Faith and the
Professions, 40; Shaffer, “American Legal Ethics”, 374-375, Shaffer, Thomas
L. “Legal Ethics and the Good Client”, (1987) Scholarly Works Paper 645. http://scholarshiplaw.nd.edu/law_faculty_scholarship/645, 319-330, 320-321
[9] Shaffer, Faith and the Professions, 72
[10] This claim is made in Shaffer, “Legal
Ethics and the Good Client”, 323
[11] Shaffer, “Legal Ethics and the Good
Client”, 323
[12] The argument is set out in Shaffer, Faith and the Professions, 44-45
[13] Allegretti, Joseph. "Lawyers, Clients
and Covenant: A Religious Perspective on Legal Practice and Ethics ". Fordham Law review 66, no. 4
(1998): 1110-29, 1108.
[14] The theology of two-kingdoms and its
relevance to the professions is set out in Shaffer, Faith and the Professions, 78-92
[15] This is discussed in the opening chapter
in Faith and the Professions (Chapter 1). An indication of Shaffer’s reliance
on stories is seen in the extensive index of stories in his book. The index of
literary characters run to nearly 5 pages and are found in novels including
George Elliot’s Middlemarch, Anthony Trollope’s The Orley Farm and of course,
Harper Lee’s To Kill a Mockingbird.
[16] Shaffer, Faith and the Professions, 22
[17] Shaffer, Faith and the Professions, 33
[18] John H. Yoder “The Scholarship of Thomas
L. Shaffer: A Retrospective and Response” Journal of Law and Religion 10, no.2,
331-337 (1993-4) at 337
[19] Yoder, “The Scholarship of Shaffer”, 332
[20] Yoder, The Scholarship of Shaffer, 332
