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Can Lawyers Be Saved? The Theological Legal Ethics of Thomas Shaffer

Published online by Cambridge University Press:  24 April 2015

Leslie E. Gerber
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Extract

The subject of this essay is the developing work of Thomas Shaffer, the Notre Dame Law School legal ethicist. For over two decades, Shaffer has displayed a remarkable ability to bring to his area of specialization the influences of a rich variety of extra-legal sources. Readers encounter neo-orthodox and narrative theology; biblical studies; the nineteenth century novel of manners and sensibility (especially Trollope); material from film, stage and television; the deviance theory of Kai Erikson; the history and sociology of later immigrant cultures in America; C.P. Snow and C.S. Lewis; Martin Buber's understanding of I-Thou relations; the history of British and American legal-ethical concepts. Yet the very interdisciplinary scope of Shaffer's writing places it at risk. When technically impressive micro-studies carry the day, magistrally broad efforts like his often receive scant attention. To encourage the opposite result—a thorough engagement by legal scholars and ethicists—this analysis is offered.

Type
Commentary on the Work of Thomas L. Shaffer
Information
Journal of Law and Religion , Volume 10 , Issue 2 , June 1993 , pp. 347 - 366
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 1993

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References

1. Leadership in the ’90's: Tracing the Public's Perception, The Christian Science Monitor (Mar 22, 1991). See also, Public View of Professional Ethics, The Christian Science Monitor. Here the results of a June, 1992 Gallup Poll are reported. Significantly, a erosion of esteem is evident. Lawyers earned high approval ratings from only 18% of respondents. Senators and Congressmen—in the public mind, synonymous with the legal profession—were at 13 and 11% respectively.

2. That tenured faculty members in state-supported institutions are public personages can hardly be gainsaid. They are more thoroughly clothed in this status than elected officials, being essentially immune from removal from office. Using their positions for personal gain means entering into the bewilderingly interconnected world of consulting, grants-acquisition, and public speaking. Since professors at “private” schools (most receive significant levels of public support) also engage in these activities, they too are “public.” The ethical probity of professionals in higher education is usefully analyzed in Jacoby, Russell, The Last Intellectuals: American Culture in the Age of Academe (Basic Books, 1987)Google Scholar, especially chapters 4 and 5, and Dogmatic Wisdom: How the Culture Wars Divert Education and Distract America (Doubleday, 1994)Google Scholar. Also indispensible are Smith, Page, Killing the Spirit: Higher Education in America (Penguin Books, 1990)Google Scholar and Sykes, Charles, Profscam: Professors and the Demise of Higher Education (St. Martin's Press, 1988)Google Scholar and The Hollow Men: Politics and the Corruption in Higher Education (Regnery Gateway, 1990)Google Scholar.

3. Bellah, Robert, et al., Habits of the Heart: Individualism and Commitment in American Life 336 (U California Press, 1986)Google Scholar.

4. Id at 148.

5. Id.

6. Id at 149.

7. Id.

8. Id at 150. See MacIntyre, Alasdair, After Virtue (U Notre Dame Press, 1981)Google Scholar.

9. Bellah, , Habits at 152–53 (cited in note 3)Google Scholar.

10. Shaffer, Thomas L., American Lawyers and Their Communities: Ethics in the Legal Profession (U Notre Dame Press, 1991)Google Scholar (“American Lawyers”).

11. Id at 15.

12. Id at 16 (emphasis supplied).

13. Shaffer, Thomas, Inaugural Howard Lichtenstein Lecture in Legal Ethics: Lawyer Professionalism as a Moral Argument, 26 Gonzaga L Rev 395 (1990)Google Scholar (“Lawyer Professionalism”).

14. Since the strong narrative emphasis in Shaffer's, work is only implicit in On Being a Christian and a Lawyer: Law for the Innocent, (Brigham Young U Press, 1981)Google Scholar, I make only occasional references to this work. While most of the themes Shaffer develops in American Lawyer are present in this early work (he began it in 1975), On Being a Christian and a Lawyer contains some of Shaffer's profoundest writing and deserves careful reading. Particularly interesting is Chapter 4, “A Theology of the Client.” Here Shaffer sees the lawyer-client relationship in terms of Paul's dealings with the fractious, difficult Corinthians. He writes: “The theology of the matter, if we can apply such thoughts to the array of relatively respectable people with whom lawyers deal, is that my client was sent to me by God; God proposes to deal with me through my client.” Hauerwas, once Shaffer's colleague at Notre Dame, collaborated on chapters 18 and 19 of this book.

15. American Lawyers at 21 (cited in note 10).

16. Lawyer Professionalism at 297 (cited in note 13).

17. Lawyer Professionalism at 397 (cited in note 13).

18. American Lawyers at 208 (cited in note 10).

19. Lawyer Professionalism at 297 (cited in note 13).

20. “The trial lawyers of American fiction live and suffer through the pain of their clients, those who are guilty and those who are not,” Shaffer wrote in On Being a Christian and a Lawyer. See 73-74 for a early example of the way Shaffer uses these authors to help make key points about legal character and obligations to clients.

21. Shaffer's first full analysis of the gentlemanly ideal appeared in The Gentleman in Professional Ethics, 10 Queen's L J 1 (1985)Google Scholar. He relies heavily on that work in chapters 2, 3, and 4 of American Lawyers. Shaffer also reflects at length on the ethical inheritance bequeathed by the gentleman in Faith and the Professions (Brigham Young U Press, 1987)Google Scholar. See especially, “The Gentleman's Ethic,” at 40-47. Thoughout this book, Shaffer is concerned to test the ideal of the gentleman against the most difficult teaching of Judaism and Christianity—namely, that the one who would serve must also suffer and be needful of service. Doctors and lawyers are trained to be competitive, and they are fond of the rhetoric of victory: over disease or death or those threatening suit. The theological tradition that links God's life to the threatened, the vulgar, the poor, and the vanquished is thus a particularly scandalous one. “That suffering part of servanthood is hard for doctors and lawyers, so radical that it is all but unacceptable,” asserts Shaffer at 70).

22. American Lawyers at 45 (cited in note 10).

23. American Lawyers at 46 (cited in note 10).

24. American Lawyers at 52 (cited in note 10).

25. Readers interested in exploring further the literature on the gentlemen may wish to consult the following works: Raven, Simon, The English Gentleman: An Essay in Attitudes (Antony Blond, 1961)Google Scholar; Nicholson, Harold Sir, Good Behavior: Being a Study of Certain Types of Civility (Beacon Press Paperback, 1960)Google Scholar; Pear, T.H., English Social Differences (George Allen and Unwin) (1955)Google Scholar, especially chap. 2, Psychological Aspects of English Social Stratification at 58-84; Wilkinson, R.H., The Gentleman Ideal and the Maintenance of a Political Elite: Two Case Studies: Confucian Education in the Tang, Sung, Ming, and Ching Dynasties; and the Late Victorian Public Schools (1870-1914), in Musgrave, Peter William, ed, Sociology, History and Education: A Reader at 124–26, (Methuen, 1970)Google Scholar. I am indebted to Professor Ralph B. Potter of Harvard Divinity School for sharing with me both syllabus and bibliography for his course entitled “The Ideal of the Gentleman.”

26. American Lawyers at 55 (cited in note 10).

27. American Lawyers at 57 (cited in note 10).

28. American Lawyers at 60 (cited in note 10).

29. American Lawyers at 67 (cited in note 10).

30. American Lawyers at 68 (cited in note 10).

31. American Lawyers at 69 (cited in note 10).

32. American Lawyers at 70 (cited in note 10).

33. American Lawyers at 71 (cited in note 10).

34. American Lawyers at 70 (cited in note 10).

35. Mariano's works include The Italian Contribution to American Democracy (The Christopher Publishing House, 1921Google Scholar; The Appo Press, 1975) and The Italian Immigrant and Our Courts (The Christopher Publishing House, 1925)Google Scholar; wrote, CotilloItaly during the World War (The Christopher Publishing House, 1922)Google Scholar.

36. American Lawyers at 166 (cited in note 10).

37. American Lawyers at 143 (cited in note 10).

38. Lawyer Professionalism at 403 (cited in note 13).

39. Lawyer Professionalism at 406 (cited in note 13).

40. Lawyer Professionalism at 409 (cited in note 13).

41. American Lawyers at 235 (cited in note 10).

42. American Lawyers at 197-198 (cited in note 10).

43. American Lawyers at 198 (cited in note 10). In Chapter Three (“Theology”) of Faith and the Professions Shaffer usefully explores the historic dispute in Christian theology as to whether the rules which operate among believers can be extended to one's life in “the world.” For legal ethics, this dispute furnishes important perspectives on the question of whether public and professional life “has morals of its own” or whether “life in town and life at home are governed by the same morality” (p. 78). “The doctrine that professional life has a separate morality has been the central theory in American professional ethics for about a century,” Shaffer observes (p. 85).

44. American Lawyers at 198 (cited in note 10).

45. American Lawyers at 200 (cited in note 10).

46. American Lawyers at 201 (cited in note 10).

47. American Lawyers at 208 (cited in note 10).

48. American Lawyers at 206 (cited in note 10).

49. American Lawyers at 214 (cited in note 10).