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A Lawyer's Truth: Notes for a Moral Philosophy of Litigation Practice

Published online by Cambridge University Press:  25 September 2015

Robert P. Burns
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Is trial rhetoric, with its shadings, deliberate obfuscations, and outright deceptions, directly justified and limited by the same moral considerations which control important private conversations, where the same devices may sometimes be appropriate? Is a trial like any other dialogue that can be called moral? Or does such speech find its justification and limitations solely in its purely instrumental relation to the preservation of ordinary moral values—justice or respect for rights—as does killing in warfare? Is a trial lawyer's talking like a soldier's killing? But this cannot be right. Surely a lawyer's speech can contribute to a loss of life, liberty, or property, but dialogue, as the specifically moral medium of human relations, would seem intrinsically valuable, the preferred medium for things of public concern, the polar opposite of violence. Perhaps, then, the conversation which takes place in the courtroom is both controlled by internal, noninstrumental norms, as in the first view, and discontinuous with ordinary moral conversations, as in the second: a form of distinctively political argument, intrinsically valuable, not subject to ordinary moral stric-tures, a realm apart.

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Articles
Information
Journal of Law and Religion , Volume 3 , Issue 2 , 1985 , pp. 229 - 276
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Copyright © Center for the Study of Law and Religion at Emory University 1985

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References

1. Bonhoeffer, D., Ethics 363–72 (Bethge, E. ed., Smith, N. trans. 1955)Google Scholar.

2. Kant, I., The Critique of Judgment (Meredith, J. trans. 1952)Google Scholar.

3. That is, when they are raised at all. The perspective of the law school curriculum remains largely that of the judge (in traditional and doctrinal courses) or the economist or philosopher, not that of the practicing lawyer. For possible explanations, see Simon, , The Ideology of Advocacy: Procedural Justice and Ethics, 1978 Wisc. L. Rev. 29Google Scholar; Simon, , Homo Psychologicus: Notes on a New Legal Formalism, 32 Stan. L. Rev. 487 (1980)CrossRefGoogle Scholar.

4. This article suggests that the perspectives and dispositions of the judge and of the actor are “irreducible” and often opposed. The educational question, which is a philosophical question, is: What does a person of action learn from being required to assume, however abstractly, the perspective of the (appellate) judge? Certainly, rhetoricians should know their audiences. Is there also a moral value for the rhetorician?

5. Finnis, J., Fundamentals of Ethics 72–78 (1983)Google Scholar. By “practical reasonableness,” I mean that perspective that holds at least the following. There are, first, legitimate “questions of conscience,” not merely about conscience. That is, it makes sense for me to ask whether a concrete course of action is right or wrong, practically reasonable or not. In so doing, I am not asking directly about me or about reason, but about real intelligible opportunities that may be realized or stunted and to which intelligence is transparent. Second, the reasonableness of a proposed course of action is not a strictly determined function of the consequences of that action, including my subsequent character as one more possible consequence. Since we “cannot bring about better worlds simply by surveying them from outside time and choosing them,” being practically reasonable—obeying its categorical imperatives—is the only way we “can adequately respect and foster human well-being and thus participate integrally in human goods.” Id. at 70-72, 120.

6. The Michelman Report has critcized legal education for being neither sufficiently practical nor sufficiently theoretical. See Harvard Law School, Committee on Educational Planning and Development Report (1982)Google Scholar. These are, in my view, closely related failings. Posing questions of practice as matters of “personal morality” in factually rich contexts and rigorously examining the philosophical dimensions of those situations and decisions throws enormous light on what law is and what justice can hope to be. See Donagan, , Justifying Legal Practice in the Adversary System in The Good Lawyer (Luban, D. ed. 1984)Google Scholar; Noonan, J., Persons and Masks of the Law: Cardozo, Holmes, Jefferson and Wythe as Makers of the Masks (1976)Google Scholar.

7. Bernauer, , On Reading and Misreading Hanna Arendt, 11 Phil. & Soc. Crit. 1–34 at 11 (1985)CrossRefGoogle Scholar. I try to supply some of the required phenomenology infra text at notes 114-26. MacIntyre's comments on the priority of questions of virtue to those of rules are in accord:

…. It is yet another of Nietzche's merits that he joins to his critique of Enlightenment moralities a sense of their failure to address adequately, let alone to answer the question: what sort of person am I to become? This is in a way an inescapable question in that an answer to it is given in practice in each human life. But for characteristically modern moralities it is a question to be approached only by indirection. The primary question from their standpoint has concerned rules: what rules ought we to follow? And why ought we to obey them? …. Ronald Dworkin has recently argued that the central doctrine of modern liberalism is the thesis that questions about the good life for man or the ends of human life are to be regarded from the public standpoint as systematically unsettleable. On these individuals are free to agree or to disagree. The rules of morality and law hence are not to be derived from or justified in terms of some more fundamental conception of the good for man. In arguing thus Dworkin has, I believe, identified a stance that is characteristic not just of liberalism, but of modernity. Rules become the primary concept of the moral life. Qualities of character then generally come to be prized because they will lead us to follow the right set of rules. ‘The virtues are sentiments, that is, related families of dispositions, and properties regulated by a higher-order desire, in this case a desire to act from the corresponding moral principles,’ asserts John Rawls, one of the latest philosophers of modernity and elsewhere he defines ‘the fundamental moral virtues’ as ‘strong and morally effective desires to act on the basic principles of right.’

Hence, on the modern view the justification of the virtues depends upon some prior justification of rules and principles; and if the latter become radically problematic, as they have, so also must the former. Suppose, however, that in articulating the problems of morality the ordering of evaluative concepts has been misconceived by the spokesmen of modernity and more particularly of liberalism; suppose that we need to attend to virtues in the first place in order to understand the function and authority of rules; we ought then to begin the inquiry in a quite different way from that in which it is begun by Hume or Diderot or Kant or Mill. On this interestingly Nietzsche and Aristotle agree.

MacIntyre, , After Virtue 112 (1971) (cites omitted) (emphasis in original)Google Scholar. I think it is wrong for “progressive” lawyers to dismiss questions of the individual morality of law practice as trivial compared to questions of distributive justice (themselves, no doubt, very important). See, e.g., Dauer, & Leff, , Correspondence: The Lawyer as Friend, 86 Yale L.J. 573 (1977)CrossRefGoogle Scholar. To leave out of account the sorts of persons that legal agents become in working within this or that set of institutions is a curiously abstract view for persons on the left to assume.

8. Habermas, J., Legitimation Crisis 9–10 (1975)Google Scholar. See infra text at notes 118 to 126 on the importance of “mixed questions.”

9. See Simon, Ideology, supra note 3, at 119-30 for a distinction between the “ideal of law” and “rule of law.” See also Horowitz, , The Rule of Law, 86 Yale L.J. 561 (1977)CrossRefGoogle Scholar.

10. D. Bonhoeffer, supra note 1.

11. Dealings with an enemy in wartime suggest themselves. But see M. Cicero, De Officiis, Bk. III, ch. 29. “One should keep faith even with an enemy.” See also Aquinas, T., Summa Theologica I–II, Q. 71, art. 3Google Scholar (applying Cicero's maxim to questions of legal ethics and drawing the military analogy). To the extent that a practitioner's vision of legal practice is that of “civil war carried on by other means,” A. MacIntyre, supra note 7, at 236, it become more sensible to look to the ethics of military action for analogies. Aquinas' analogy of the ethics of litigation to those of “just war” theory is extremely suggestive. See Walzer, M., Just and Unjust Wars (1977)Google Scholar. To the extent that a practitioner sees legal controversy as taking place within the context of shared norms, a more truly “conservative” vision, that analogy will seem misplaced.

12. Bellow, S., The Dean's December 102 (1982)Google Scholar. Bellow's novel is a sustained meditation on the obstacles to truthfulness in the political and legal worlds.

13. A. MacIntyre, supra note 7, at 58.

14. I use the term with some trepidation. First, it is “rather a mouthful.” See Austin, , A Plea for Excuses, 57 Proc. of the Aristotelian Soc'y 1 (1956)Google Scholar. Second, I fear that I will contribute to the process by which legal scholars expropriate a term with a very specific history and use it with amazing willfulness. See, e.g., Singer, , The Player and the Cards: Nihilism and Legal Theory, 94 Yale L.J. 1 (1984)CrossRefGoogle Scholar. Third, phenomenology's strength has been in studying the process by which a “life-world” is constitued, not in studying the “pre-constituted” institutional forms within which persons face each other. Rasmusson, , Explorations of the Lebenswelt: Reflections on Schultz and Habermas in Alfred Schutz: Appraisals and Developments 21–26 (Wolff, K. ed. 1984)CrossRefGoogle Scholar. Fourth, phenomenology requires the bracketing of the theoretical constructs we take for common sense, whereas our problems are posed precisely by those constructs and our professional common sense about them. For warnings against loose uses of the term, see Lauer, Q., Phenomenology 1–19 (1965)Google Scholar. Still it seems correct that phenomenology in the sense of a careful description of the experiences of participants in the legal world can throw light on what that world and its practices are.

My suspicion is that the rules which govern practice, for example the rules of evidence, have in the main grown up to support the practice: the rules “are mere abridgement of the activity itself; they do not exist in advance of the activity.” Oakeshott, M., Rationalism in Politics 101 (1962)Google Scholar. For example, the evidentiary rules against leading and calling for conclusions are abridgements of the basic form of direct examination as physical description followed by chronological narrative. It is almost impossible to conduct a direct examination in other than the descriptive narrative form without violating the evidentiary rules. The interconnection of the rules may be studied as a matter of formal logic, but they cannot be said to be understood apart from the practice they in part define. See Luban, , Epistemology and Legal Education, 33 J. Legal Educ. 636, 639 (1983)Google Scholar.

15. Williams, Professsional Morality and Its Dispositions in D. Luban, ed., supra note 6, at 259-69.

16. See Freedman, M., Lawyers' Ethics in an Adversary System 46–47 (1975)Google Scholar.

17. See Fried, , The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation, 85 Yale L.J. 1060 (1976)CrossRefGoogle Scholar and Correspondence, 86 Yale L.J. 573 (1977)Google Scholar; see also Donagan, Justifying Legal Practice in the Adversary System, in D. Luban, ed., supra note 6, at 123.

18. Williams, supra note 15, at 261.

19. Id. at 262.

20. Id. Much of the most searching discussion of the divergence, if any, between ordinary morality and role morality has been in the context of the politician's role, though it is instructive that such discussions often include references to lawyers' conduct in the adversary system. See, Weber, , Politics as a Vocation in From Max Weber 77 (Berth, H. & Mills, C. eds. 1928)Google Scholar; Hampshire, Public and Private Morality, and Nagel, , Ruthlessness in Public Life in Public and Private Morality (Hampshire, S. ed. 1978)Google Scholar; Walzer, , Political Action: The Problem of Dirty Hands, 2 Phil. & Pub. Aff. 160–80 (1972)Google Scholar. It has been argued that no such divergence exists, but that it rests, for example, on a “twofold sentimentalization: of politics, imagining it as an arena in which moral heroes take hard (that is, immoral) decisions for the good of us all; and of common morality, ignoring the conditions it places on the immunities it proclaims.” See Donagan, A., The Theory of Morality 180–89 (1977)Google Scholar; Kateb, G., Hanna Arendt: Politics, Conscience, Evil (1983)Google Scholar (the true opposition is not between political morality and ordinary morality, but between the former and “absolute morality,” the ethics of Socrates and Jesus). Accord, Murray, J.C., We Hold These Truths 271–75 (1964)Google Scholar (issue discussed in context of foreign policy).

21. Dewey, , Experience, Knowledge and Value: A Rejoinder in The Philosophy of John Dewey 517, 559 (Schilpp, P. ed. 1939)Google Scholar.

22. This is not true, for example, for a moral theorist such as Adam Smith. For Smith, the ultimate justification for all moral sentiments is utilitarian, but individual actors, including judges, legislators, and lawyers, ought not to act directly on utilitarian grounds, which latter are of concern only to the theorist. Actors should follow the dictates of the moral sentiments which, through a mechanistic psychology, have been prearranged by a benign providence to effect the greatest good. See Haakonssen, K., The Science of a Legislator (1981)CrossRefGoogle Scholar. For a suggestion by an influential contemporary moral philosopher that all consequentialist moral philosophies, including utilitarianism, are Promethean assertions of responsibility for results which the Judeao-Christian tradition consistently sees as divine, see Finnis, supra note 5, at 110-11.

23. Williams, supra note 15, at 263.

24. Id. at 263-66. One such means is “specific professional adaptation;” a course of professional education eliminates the general moral disposition which is offended by professional conduct. This is the rule, Williams believes, in the “respectable professions.” Id. at 265. Its dangers are moral alienation from the general public or “mystification” of what the professional does, with real personal dangers. The latter include employing “nonspecific professional adaptation,” or becoming “seen by some others [with general dispositions] as up to a point rather horrible people.” This is a special danger because of the slippery border between professional and nonprofessional activity. Williams thinks that our society requires such horrible people to do what we need done.

25. Id. at 263-64. Williams admits that this view is of little value “if it merely punctuates an otherwise ruthlessly professional course with occasional encouragements to moral uneasiness, like a weekly address at military camp by a pacifist minister.” Id. at 266.

26. Id. at 266.

27. Id. Williams is more than willing to concede that such practices may be necessary in a given society. Yet a lawyer's unease may provide “some psychological anti-bodies against absorbing into the bloodstream a mystifying conception of the dignity of the profession and in neutralizing some of the mechanisms of self-deception. It will not only increase the human appeal of lawyers but also perform a social service, since lawyers are often powerful people who have a strong financial interest in success, and it is a good idea if their self-image leaves them with inhibitions about how their armory is being deployed.” Id. at 266-67.

28. Id. at 268.

29. This is not an innocent shift of language. It calls up a mode of thought which is different in important ways from the one that Williams seems to employ. See infra text at notes 32-38. Williams uses the terms interchangeably.

30. See Hegel, G., Phenomenology of Spirit (Miller, A. trans. 1977)Google Scholar.

31. Williams, supra note 15, at 264. See, e.g., Professional Responsibility: Report of the Joint Conference, 44 A.B.A.J. 1159, 1162 (1958)Google Scholar, for the canonical example of a lawyer first “exploiting” an unjust rule for his client and then working to change the rule. Others, both inside and outside the legal profession have suggested that a wide range of virtues are necessary even within the practice of law. See Eshete, Does a Lawyer's Character Matter!, in D. Luban, ed., supra note 6, at 270.

32. Williams, supra note 15, at 267.

33. Id. at 267-68.

34. See Finnis, supra note 5, at 113:

The most radical difference between proportionalist and nonproportionalist ethics is that the proportionalist locates his criterion of right choice exclusively in the expected outcomes of alternative choices, i.e. in the states of affairs resulting from the choices …. [S]ome proportionalists wish to include in their assessment an evaluation of the action (i.e. chosen behavior) itself, as well as of its consequences. But their evaluation of that action is as one more state of affairs, or one more event, among the other states of affairs or events which together constitute the outcome of a choice. The proportionalist seeks to include the acting subject within the horizon of his own assessments and choice as one object amongst others, and to include his choice and his behavior as one state of affairs or event amongst others.

35. Id.

36. …. To recognize that there are some free choices is to recognize that choice and action have both transitive and intransitive effects. The transitive effects of choice and action are the states of affairs constituted by my chosen behavior and its further results in the world. The intransitive effect is this: by a free choice I willy-nilly constitute myself a certain sort of person …. This shaping of the person is, if you like, the creation (or strengthening or destruction or replacement) of a disposition, a virtue or a vice. But if we use those classical words in this context, we must insist on their very strong sense; they denote realities that are created by, and in this sense only by, acts of self-determination (free choice) and that are superceded a replaced only by a subsequent incompatible act or acts of free choice …. So too, free choices create more than the experienced inclinations and (in the modern sense of the word) habits which accompany and/or result from them. One's character takes the shape of the choice one has made.

Id. at 139-40.

37. This confusion of motive and inevitable effect may be at the basis of the denigration of moral action by some thinkers strongly influenced by Hegel's portrait of “the beautiful soul” in the Phenomenology of Spirit (Miller, A.V. trans. 383–409 1977)Google Scholar. The Lutheran tradition, in which both Kant and Hegel stood, has consistently maintained that truly moral action—action directed at and motivated by concern for the neighbor's real needs—was possible only for the person convinced that he was loved by a forgiving God from whom salvation need not and could not be “earned.” Ramsey, P., Basic Christian Ethics 133–142 (1950)Google Scholar. The cardinal sin is to be a “Pharisee,” to make one's own “goodness,” not the real needs of the neighbor, the goal of one's action. Bonhoeffer, supra note 1, at 26-37.

38. A. Donagan, supra note 20. Donagan's own essay in The Good Lawyer does consistently maintain the “moral point of view” though in a mode of thought Williams would call casuistical. See Donagan, supra note 6.

39. Weber, supra note 20.

40. Our imaginations are haunted by some distinction between individual ethics and “basic structure.” See, e.g., Rawls, J., A Theory of Justice (1971)Google Scholar. The latter gives content to the former: “Thou shalt not steal” assumes a distribution of property rights which is part of the basic structure of society. It seems almost impossible not to think in terms of categories of inclusion here: is the ethical within the political? So Marx could say that moral and juridical categories could only have meaning within a political system which in turn depended (in a way which is the subject of a scholasticism itself) on the economic system. See Z. Husamie, Marx on Distributive Justice and Wood, A., Marx on Right and Justice in Marx, Justice and History 42, 106 (Cohen, M., Nagel, T. & Scanlon, T. eds. 1980)Google Scholar. “Juridical concepts” simply did not apply to the construction of the basic structure itself. Aristotle urged the inclusiveness of the political: “merit,” a determination necessary for the distributive justice in which commutative justice, the corrective justice of ethics and law, depended, was relative to the regime established by the various constitutions. See, e.g., Mulgan, R. G., Aristotle's Political Theory: An Introduction for Students of Political Theory 14 (1977)Google Scholar. Adam Smith bravely distinguished the “natural justice” which the courts meted out within the broader social structure set by economic necessities, sometimes structured by a benign determinism, often muddled by political rules of “politics and police.” See Smith, A., The Theory of the Moral Sentiments (1759)CrossRefGoogle Scholar; Lectures on Jurisprudence (Meek, R., & Stein, G. eds. 1978)Google Scholar. Kant gave autonomy to individual morals, but argued that the politicallegal system had to “pay homage” to morals in an instrumental fashion. Riley, P., Kant's Political Philosophy (1982)Google Scholar. The most influential contemporary writers in legal theory—Rawls, Dworkin, perhaps Ackerman—attempt to preserve a sense in which the legal and political are within the ethical; that moral concepts can determine the basic structure; that the basic structure of society lies “within” the moral perspective which makes determinate demands on that structure, demands which judges and legislators are obliged to honor in an ongoing way. My suspicion is that these metaphors of inclusion and exclusion may well be pictures which keep us prisoner though I do not now see my way out of their enclosure.

41. Solzhenitsyn, A., Nobel Prize Lecture (1972)Google Scholar quoted in J. Finnis, supra note 5, at 117. See also Arendt, H., The Life of the Mind: Thinking 180–93 (1978)Google Scholar for an account of Socrates' conscientious refusal to do wrong.

42. I recall Tolstoi's description of the noblewoman grieving at the misfortunes of the heroine at the opera, yet remaining oblivious to the suffering of her driver sitting shivering outside in the cold.

43. Hammarskjold, D., Markings 101 (1964)Google Scholar.

44. Nell, O., Acting on Principle: An Essay on Kantian Ethics 133–35 (1975)Google Scholar; Paton, , An Alleged Right to Lie: A Problem in Kantian Ethics, 45 Kant-Studien 190–203 (1953–1954)Google Scholar.

45. I. Kant, supra note 2 at 86. Political life provides this same bastion against nihilism—real nihilism, not the Critical Legal Studies version—in the thought of Hanna Arendt. She recognizes the importance of Kant's quest for meaning but explicitly declines to find that kind of “ultimate” in Kantian morality:

[The] inhumanity of Kant's moral philosphy is undeniable, and this is so because the categorical imperative is postulated as absolute and in its absoluteness introduces into the interhuman realm—which by its nature consists of relationships—something that runs counter to its fundamental relativity.

Arendt, , On Humanity in Dark Times: Thoughts About Lessing in Men in Dark Times 27 (n.d.)Google Scholar. Instead, she looks to deliberative politics for the realm that bestows meaning on life, that enables “ordinary men, young and old, to bear life's burden.” Arendt, H., On Revolution 281 (1965)Google Scholar.

46. On the ultimate significance for philosophy and ethics of this kind of wonder, see Arendt, H., The Life of the Mind: Thinking 141–52, 178–79Google Scholar, and Arendt, H., Willing: 185–86 (1978)Google Scholar.

47. Wittgenstein, , Lecture on Ethics, 74 Phil. Rev. 3–12 (1965)CrossRefGoogle Scholar.

48. Edwards, J., Ethics Without Philosphy: Wittgenstein and the Moral Life 84 (1982)Google Scholar.

49. Id. at 234.

50. Id. Wittgenstein, too, closely ties the ethical life with the human quest for meaning. Id. at 84-94.

51. Hammarkjold described the “mystical” quality of this moral sensitivity:

To have humility is to experience reality, not in relation to ourselves, but in its sacred independence. It is to see, judge, and act from the point of rest in ourselves. Then, how much disappears, and all that remains falls into place.

In the point of rest at the centre of our being, we encounter a world where all things are at rest in the same way. Then a tree becomes a mystery, a cloud, a revelation, each man a cosmos of whose riches we can only catch glimpses. The life of simplicity is simple, but it opens to us a book in which we never get beyond the first syllable.

D. Hammarskjold, supra note 43, at 147-48.

52. A. Donagan, supra note 20, at 240, quoting Traversi, , Henry the Fourth, Part I, Act IV, scene 2, 15 Scrutiny 29 (1947–1948)Google Scholar.

53. Findlay, J. N., Kant and the Transcendental Object: A Hermeneutical Study ix (1981)CrossRefGoogle Scholar.

54. Arendt, H., The Origins of Totalitarianism 300–01 (1973)Google Scholar.

55. Id. at 301.

56. Id.

57. She borrows the notion from Simon Weil.

58. Murdoch, I., The Sovereignty of Good 34 (1970)Google Scholar. Other thinkers have emphasized the importance of vision and imagination in the moral life. See, e.g., Maquire, D., The Moral Choice 189–217 (1978)Google Scholar.

59. Murdoch, supra note 58, at 87. On compassion as a spring of political and legal action see Arendt, H., On Revolution 86–87 (1968)Google Scholar:

Because compassion abolishes the distance, the worldly space between men where political matters, the whole realm of human affairs are located, it remains, politically speaking, irrelevant and without consequence. In the words of Melville, it is incapable of ‘lasting institutions.’ Jesus' silence in The Grand Inquisitor and Billy Budd's stammer indicate the same, namely their incapacity (or unwillingness) for all kinds of predicative or argumentative speech, in which someone talks to somebody about something that is of interest to both because its interest is between them. Such talkative and argumentative interest in the world is entirely alien to compassion, which is directed, solely, and with passionate intensity, toward suffering man himself; compassion speaks only to the extent that it has to reply directly to the sheer expressionist sound and gestures through which suffering becomes audible and visible in the world. As a rule, it is not compassion which sets out to change worldly conditions in order to ease human suffering, but if it does, it will shun the drawn out wearisome processes of persuasion, negotiation, and compromise, which are the processes of law and politics, and lends its voice to the suffering itself, which must claim for swift and direct action, that is, for action with the means of violence.

Arendt distinguishes compassion from both “active goodness” and from “solidarity,” the disposition by which persons “establish deliberately and, as it were, dispassionately a community of interest with the oppressioned and exploited.” For her, “solidarity,” because it partakes of reason, and hence of generality, is able to comprehend a multitude conceptually, not only the multitude of a class or a nation or a people, but eventually all mankind: “… though it may be aroused by suffering, [it] is not guided by it, and it comprehends the strong and the rich no less than the weak and the poor ….”. Id. at 88-89.

60. Murdoch, supra note 58, at 89.

61. Id. at 52, 65.

62. Id. at 83.

63. See Kovesi, J., Moral Notions (1967)Google Scholar; Moore, , Moral Reality, 1982 Wisc. L. Rev. 1062Google Scholar.

64. Murdoch mounts a polemic against the anti-naturalism of most of contemporary moral philosophy which is, in both continental and Anglo-Saxon version, Neo-Kantian in inspiration:

There is no point [in existentialism] in talking of moral seeing since there is nothing morally to see. There is no moral vision. There is only the ordinary world which is seen with ordinary vision, and there is the will that moves within it. What may be called the Kantian wing and the surrealist wing of existentialism may be distinguished by the degree of their interest in reasons for actions, which diminishes to nothing at the surrealist end.

British philosophers emphasize reasons … but the production of such reasons, it is argued … does not in any way connect or tie the agent to the world or to special personal contexts with the world. He freely chooses his reasons in terms of, and after surveying the ordinary facts which lie open to everyone; and he acts.

Murdoch, supra note 58, at 35 (emphasis in original).

65. Id. at 91.

66. Id. at 66.

67. This is Murdoch's example. Id. at 23.

68. I take it that the life of the law in the trial courts is a highly conventional process by which an evaluative description is affixed to past event. Was it “negligent” or “careful”? Was it “intentional” or “inadvertant”? Was it “reasonable” or “unreasonable”? (Though in this last case we move fairly close to the most general moral terms a kind of inference from the acceptance of a whole range of middle-level evaluative-descriptive terms persuasively urged at trial, both in the testimony of witnesses and in the narrative of opening statement and argument of closing.) Indeed the central skill of the trial lawyer is to capture the jury's moral imagination by the deft use of metaphor and narrative in a way that is not transparent or heavy-handed and to first discover, “invent,” and then establish the large numer of ultimate facts which, by common sense inference suggest that the narratives filled with metaphor and descriptive-evaluative terms are plausible. I note here the parallel: the crucial differences I will try to describe below.

69. Gadamer, H., Truth and Method 287 (1975)Google Scholar. Lonergan, B., Insight 207–42 (1957)Google Scholar. Donagan, supra note 20 at 141.

70. A. Donagan, supra note 20 at 141. See also Lonergan, supra note 69, at 191-99 for a rich analysis of the dynamics of human refusal to see: semi-deliberate blindness, repression, and inhibition.

71. Lonergan, supra note 69, at 599.

72. Id.

73. Id. at 600.

74. Collingwood, R.G., The Principles of Art 384–85 (1938)Google Scholar.

75. He writes:

The moral significance of Mark Twain's presentation of Huckleberry Finn is that it shows somebody struggling to confront a fact which is in a way obvious, yet which is screened from him by the moral system of his culture—a system which has partly vitiated the very language he speaks. When asked whether anybody was hurt in an accident he has told of witnessing, he finds it natural to reply, ‘No'm, killed a nigger,’ and to accept the response, ‘Well, it's lucky because sometimes people do get hurt.’ On the other hand, when rebuked by his runaway friend for a silly and humiliating practical joke, he finds himself responding as to another person: ‘It was fifteen minutes before I could work myself up to go and humble myself to a nigger: but I done it and I warn't sorry for it afterward either.

Donagan, supra note 20, at 140-41, quoting Twain, M., The Adventures of Tom Sawyer and The Adventures of Huckleberry Finn, 509, 354Google Scholar. See Trilling, L., The Liberal Imagination 111–12 (1951)Google Scholar.

76. A. Donagan, supra note 20, at 140.

77. Id. at 140-41.

78. B. Lonergan, supra note 69, at 223, 224.

79. A. MacIntyre, supra note 7, at 22-23 (emphasis added).

80. O. Nell, supra note 44, at 65-67, 78-79.

81. H. Arendt, Thinking, supra note 46, at 188.

82. Pitkin, H., Wittgenstein and Justice 150 (1972)Google Scholar. Murdoch stresses that important parts of the moral life are not conversational at all.

83. Austin, supra note 14.

84. Id. at 8. I accept Ackerman's judgment that this “conservative” notion of moral discourse no longer provides a plausible model for understanding the nature of much of legal rhetoric in the United States. The latter is true because what is often at stake in legal discourse is the outline of the basic structure within which the traditional language of morals operates. But see supra note 40. Ackerman argues that the vast statutory reconstruction of American law in the New Deal has implicitly shown American lawyers that this “basic structure” is subject to human action and thus responsibility. His attempt is to create a langauge, a “new rhetoric” within which issues—especially distributive issues—of the basic structure can be discussed. For my purposes the important point is the discontinuity of this kind of discourse from moral discourse. Ackerman, B., Reconstructing American Law (1983)Google Scholar. For differing attempts to define the language within which issues of basic structure are discussed, see Rawls, J., A Theory of Justice (1971)Google Scholar; Walzer, M., Spheres of Justice (1983)Google Scholar. Without an understanding of such a language, legal argument will necessarily be viewed as a pure cloak for underlying power realities. The latter has serious implications for the self-understanding of participants and their “ethics.” See infra text at notes 129-132.

85. H. Pitkin, supra note 82, at 151-52. Pitkin notes that other ways of “settling or encompassing conflict are provided by politics, religion, love and forgiveness, rebellion, and withdrawal.” Id.

86. H. Pitkin, supra note 82, at 151-52.

87. Id. at 153. Murdoch's Platonism provides an explanation of why this would be true which denies a relativist hypothesis. If moral reality reveals itself only to the historical person struggling to purify her vision, there is no reason to think that all interlocutors are able to see the same reality, and “we cannot be so democratic about it as some philosphers would like to think.” Murdoch, supra note 58, at 29. Kant's fairly rigid distinction between morals and law was based in part in his allegiance to democratic politics.

88. Hegel argues that there will inevitably be a gap between the particular judgments which autonomous conscience makes about morally relevant aspects of a situation in which action is necessary and the universality of the language in which it must justify itself in the human community whose ideals it claims to be following. This gives rise to the possibility of “hypocrisy,” a condition resolved by the foregiveness of the religious community, at least in The Phenomenology. See Robinson, J., Duty and Hypocrisy in Hegel's: Phenome-Nology of Mind; An Essay in the Real and the Ideal (1977)Google Scholar. Arendt sees in this gap a key distinction between the moral-religious and the political-legal, a gap which can never be closed without disastrous consequences, turning politics into a hunt for hypocrites. Arendt, supra note 59, at 96-106.

89. H. Pitkin, supra note 82, at 155. It was largely because of the strictness of this principle that Kant expressed such hostility to rhetoric of all sorts. He takes rhetoric to be “the art of persuasion, i.e., the art of deluding by means of a fair semblance, which borrows from poetry only so much as is necessary to win over men's minds to the side of the speaker before they have weighed the matter, and to rob their verdict of its freedom.” I. Kant, supra note 2, at 53, 191-92 quoted in Beiner, R., Political Judgment 99 (1983)Google Scholar.

90. H. Pitkin, supra note 82, at 156, quoting Cavell, S., The Claim to Ralitionality (unpublished dissertation, Harvard Univ.), at 350Google Scholar.

91. H. Pitkin, supra note 82 at 166.

92. Here there is a difference between Pitkin's ultimately tragic view of the moral life and Plato's ultimately ethical view that true vision would transcend tragic differences.

93. Bok, S., Lying: Moral Choice in Public and Private Life (1979)Google Scholar.

94. Vidal, G., Lincoln (1984)Google Scholar.

95. The outline of the argument comes, of course, from A. MacIntyre, supra note 7. See May, , The Virtues in a Professional Setting, 3 Soundings 1 (1984)Google Scholar.

96. I suspect that those who propose that legal discourse in the context of litigation be understood solely as “moral discourse” or even “religious discourse” invite this process. See e.g. Shaffer, T., On Being a Christian and a Lawyer 111–20 (1981)Google Scholar.

97. For the relationship between practices and institutions, see MacIntyre supra note 7, at 181-82. For purposes of this article I shall assume that the practice of law may be distinguished analytically from the professional institutions in which it is housed, so that for example, the practice may not be reduced tout courte to the professional standards legislated by institutions such as bar associations and courts.

98. The Code of Professsional Responsibility attempts to differentiate the ideals appropriate to litigation from those appropriate to counseling and to limit the former's sphere of operation. Model Code of Professional Responsibility (1979).

99. H. Pitkin, supra note 82, at 136 (1972).

100. Plato, , Gorgias in The Collected Dialogues of Plato 229–307 (Woodhead, W.D. trans., Hamilton, E. & Cairns, H. eds. 1961)Google Scholar; Jaeger, W., 2 Paideia: The Ideals of Greek Culture, (Highet, G. trans. 1963–1969)Google Scholar. White, , The Ethics of Argument: Plato's GORGIAS and the Modern Lawyer, 50 U. Chi. L. Rev. 849 (1983)CrossRefGoogle Scholar. Kronman, , Forward: Legal Scholarship and Moral Education, 90 Yale L.J. 955 (1981)Google Scholar. See Kennedy, G., Classical Rhetoric and Its Christian and Secular Tradition from Ancient to Modern Times 42–60 (1980)Google Scholar. It is not accidental that the later sophists sought to defend the legitimacy of their art by arguing its instrumental value in accomplishing an extrinisic political goal—the unification of Greek response to the Macedonian threat to Greek independence. W. Jaeger, supra, vol. 3.

101. Ricoeur, P., The Rule of Metaphor: Multidisciplinary Studies of the Creation of Meaning in Language (1977)Google Scholar. Ricoeur describes Aristotle's attempt to “tame” rhetoric by assigning it a limited role in intellectual and political-legal matters. In thinking about the subject matter of this article I have found myself going over the problematic structured by the relationships among central concepts stretching from the great sophists to Plato and Aristotle. I believe that this problematic, or interrelated set of problems, has enduring relevance to serious consideration of legal ethics and legal education, as that consideration grows philosophically richer. On broader matters, I have been strongly influenced by Richard McKeon's methodologically sophisticated attempt, based on his own classical scholarship, to elaborate the terms of true pluralism—not just cacophony—in legal and political studies. McKeon, R., Freedom and History (1952)Google Scholar. His methodology casts enormous light on what separates the warring schools in legal scholarship. It seems no accident that the scholars who have the most to offer to the problems explored in this article are broadly influenced by Aris-totle's thought. (MacIntyre, Donagan, Godamer, and Arendt.) If I may be allowed to paint with an outrageously broad brush, the important conflicts in the scholarship in legal ethics, for example, are among “Platonists” (taking Kant to be a “Platonist” in ethics) and “Aristotelians,” though the sophists are also represented. For an acute analysis of the place of rhetoric and ethics in contemporary Kantian and Aristotelian thought, see R. Beiner, supra note 89, at 83-101 (1983). See also Gadamer, H., Philosophical Hermeneutics 21–26 (1976)Google Scholar. Platonists (and Kantians) tend to see rhetoric (and politics) solely as instruments for accomplishing moral purposes which are identified through modes of thought that are nonrhetorical, indeed often nonpublic. See Riley, P., Kant's Political Philosophy (1983)Google Scholar. For “Aristotlians,” rhetoric (political or legal) can be constitutive, the medium through which political and legal deliberation (not simply manipulation) takes place. Beiner, supra note 89, at 85, 95. It may be that in a society where the forums of deliberative politics have atrophied, and, relatedly, a nuanced sense of the common good (reduced neither to Utopian communism nor to a sum of atomized utility functions) has disappeared, there is room only for Platonists and sophists (and a few romantic intuitionists). For all, rhetoric is purely instrumental. Simon recognizes this in basing his call for a “political” nonprofessional advocacy “on the emergence of genuinely shared norms of fairness”—fairness, not compassion or love. Simon, supra note 3, at 29, 39. It is because Kennedy is a romantic intuitionist that legal rhetoric must be for him “rule manipulation.” See e.g. Kennedy, D., Legal Education as Training for Hierarchy in The Politics of Law: A Progessive Critique 40 (Kairys, D. ed. 1982)Google Scholar. On the question of whether the American “spirit of the laws” allows for an Aristotelian vision of political and legal rhetoric, see H. Arendt, supra note 59, at 141-283 (1963); 1 Storing, H., The Complete Anti-Federalist, What the Anti-Federalists Were for (1981)Google Scholar; Huntington, S., American Politics: The Promise of Disharmony (1981)Google Scholar; Diggins, J. P., The Lost Soul of American Politics (1984)Google Scholar.

102. P. Ricoeur, supra note 101 at 10-11.

103. See Thibaut, & Walker, , A Theory of Procedure, 66 Cal. L. Rev. 541 (1978)CrossRefGoogle Scholar.

104. Peck, D., The Complement of Court and Counsel 9 (1954)Google Scholar, quoted in Frankel, , The Search for Truth: An Umpirical View, 123 U. Pa. L. Rev. 1031, 1033 (1975)CrossRefGoogle Scholar. Thibaut & Walker, supra note 103, distinguish sharply between these two goals. The normative significance of the empirical finding that persons with strong conflicts of interests do not place a high value on factual truthfulness is indeterminate. Only a normative theory of the relevance of factual truth to the resolution of moral (or political) conflict can specify that significance. See Latour, , Houlden, , Walker, , & Thibaut, , Some Determinants of Preference for Modes of Conflict Resolution, 20 J. Conflict Resolution 319 (1976)CrossRefGoogle Scholar. See Miller, D., Social Justice (1976)Google Scholar (normative theories which dictate a distribution without regard to questions of individual historical fact, e.g., “desert,” are not true “theories of justice” at all).

105. Frankel, supra note 104, at 1033.

106. Burke, , Truth in Lawyering: An Essay on Lying and Deceit in the Practice of Law, 38 Ark. L. Rev. 1 (1984)Google Scholar.

107. Freedman, M., Lawyers' Ethics in the Adversary System (1975)Google Scholar.

108. See Auerbach, J., Justice Without Law (1983)Google Scholar. The arguments surrounding the comparative appropriateness of alternative dispute resolution techniques seem to turn on the practical limitations of the kind of forum—the common law trial—which has traditionally been understood as “fact finder.” But the very existence of the movement shows that something else is going on—only rarely is that debate about either financial or “purely epistemological” issues. (“Is cross-examination the best engine for the discovery of truth that has ever been invented?”) It's a debate about what kind of facts should be found—about whether the “foren-sic rhetoric” designed to determine the shape of a past event and to assign praise and blame is appropriate to certain kinds of “disputes.” The same issues arise in the arguments surrounding the kind of justice—bureaucratic, professional, moral—appropriate to administrative and judication in the large social welfare agencies. See Mashaw, J., Bureaucratic Justice: Administrative Law From an Internal Perspective (1983)Google Scholar.

109. Arendt, H., Crises of the Republic 94 (n.d.)Google Scholar and The Origin of Totalitari-Anism 467 (1973)Google Scholar. See O'Barr, W., Linguistic Evidence; Language, Power, and Strategy in the Courtroom (1982)Google Scholar. O'Barr follows an anthropological distinction between “normative rule” and “pragmatic rules”:

Normative rules are statements expressing publicly acceptable values. They reflect the public face of politics and carry strong moral valuation. Pragmatic rules, by contrast, are statements not about whether a particular line of conduct is just or unjust, but about whether or not it will be effective. These rules are the private wisdom of political success and are morally neutral … [B]oth types of rules coexist in competitive situations. There are the agreed upon, public rules about how to win, and there are—as everyone knows—other rules of effective strategy.

Id. at 5. I have heard O'Barr's study recommended to advocates as a source of “pragmatic rules” though he himself concludes that the study raised “fundamental questions about the degree to which certain aspects of the American legal system as presently structured serve the cause of justice.” Id. at xii.

110. The term is, in common usage, normally derogatory. There is a sense in which any moral deliberation will begin from prejudgments. H. Gadamer, supra note 69, at 238.

111. The operative assumptions of trial lawyers do, it seem, give great weight to the range of jury discretion to make “moral decisions” which may entail a fair degree of violence to jury instructions. See Traynor, R., The Riddle of Harmless Error 30–33 (1970)Google Scholar.

112. It's true that practical advice is given to trial lawyers that they ought not, on tactical grounds, argue a fact to a jury which they do not themselves believe. See McElhaney, J., Trial Notebook 4–5 (1981)Google Scholar. The advice suggests that a really “effective” advocate will himself come to believe whatever is necessary for the persuasive presentation of the case. The moral implications of the latter capacity are especially troubling. See Arendt, H., Truth and Politics in Between Past and Future 227–264 (1968)Google Scholar and infra text at notes 175 to 181.

113. [Teachers of Rhetoric] tell us that there is no need to make such a solemn business of it, or fetch such a long compass on an uphill road. As we remarked at the beginning of this discussion, there is, they maintain, absolutely no need for the budding orator to concern himself with the truth about what is just or good conduct, no need about who are just and good men whether by nature or education. In the law courts nobody cares a rap for the truth about these matters, but only about what is plausible. And that is the same as what is probable, and is what must occupy the attention of the would-be master of the art of speech. Even actual facts ought sometimes not be stated, if they don't tally with probability; they should be replaced by what is probable, whether in prosecution or defense; whatever you say, you simply must pursue this probability they talk of, and can say good-by to the truth forever. Stick to that all through your speech, and you are equipped with the art complete.

Plato, , Phaedrus 272d in The Collected Dialogues of Plato 229–307 (Hackforth, R. trans., Hamilton, E. & Cairns, H. eds. 1961)Google Scholar.

114. Cicero, T., De Inventione (Hubbell, H. trans. 1968)Google Scholar.

115. See Binder, D. & Price, S., Legal Interviewing & Counseling: A Client-Centered Approach (1977)Google Scholar; Binder, D. & Berman, P., Fact Investigation: From Hypothesis to Proof (1984)Google Scholar.

116. A prominent trial lawyer is said to have remarked that “I have no use for the adversary system. I have been on trial for five weeks knowing that if my opponents had a certain piece of evidence, I'd lose and if they didn't I'd win.” What must that experience of that intense charade have done to the participants?

117. Kronman, , Contract Law and Distributive Justice, 89 Yale L.J. 472 (1980)CrossRefGoogle Scholar.

118. Holmes, O.W., The Common Law 37 (Howe, M. ed. 1963)Google Scholar. These beliefs may be communicated through the vague consequentiahsm which seems to form the moral position of most law professors. For some teachers, of course, these positions are not vague at all. See Posner, R., Economic Analysis of Law (1972)Google Scholar. See Summers, , Professor Fuller's Jurisprudence and America's Dominant Philosophy of Law, 92 Harv. L. Rev. 433 (1978)CrossRefGoogle Scholar. My colleague Marshall Shapo is currently investigating the extent to which judges and practitioners actually hold and/or rely on such views.

119. See R. Beiner, supra note 89, at 67.

120. This has been called the “denning” element of specifically political discourse. Beiner, R., Political Judgment 15–17 (1983)Google Scholar.

121. A. MacIntyre, supra note 7 at 236. Though MacIntyre refers to modern politics, he continues: “Bakke” was an engagement whose antecedents were at Gettysburg and Shiloh.” Id.

122. Id., quoting A. Furguson, Principles of Moral and Political Science (n.d.).

123. See Rawls, J., A Theory of Justice 307–10 (1971)Google Scholar (precepts of ordinary morality have no force independent of the “principles of justice” which latter ought uniquely to deterine the basic structure). But see Miller, supra note 104 (different conceptions of justice are so closely intertwined with concrete institutional structures that it is impossible to identify and justify, in abstraction from those institutions, any conception that would justify criticism of or choice among such structures).

124. See Brazil, , The Attorney as Victim: Toward More Candor About the Psychological Price Tag of Litigation Practice, 3 J. Leg. Prof. 108 (1978)Google Scholar.

125. I am generally thinking of jury practice here, but the gap between a given lawyer's judgments and those of a judge may be more diverse, where the judiciary is chosen based on very specific—and atypical—experiences and “political” opinions.

126. See The Federalist No. 1 (A. Hamilton).

127. D. Hammarskjold, supra note 43, at 127.

128. See e.g. Frank, J., Courts on Trial: Myth and Reality in American Justice (1949)Google Scholar. I note that realism declined largely because of the shock of the effects of what was perceived to be virulent forms of amoral naturalism on the European continent. One result was the resurgence of natural law thinking which seemed to have negative implications for a purely emotivist style of manipulative practice. See White, , From Sociological Jurisprudence to Realism: Jurisprudence and Social Change in Early Twentieth Century America, 58 U. Va. L. Rev. 999 (1972)CrossRefGoogle Scholar; White, , The Evolution of Reasoned Elaboration: Jurisprudential Criticism and Social Change, 59 U. Va. L. Rev. 279 (1973)CrossRefGoogle Scholar. “Reasoned elaboration” tended to conceive of law practice as a craft, not as deliberative politics. Craftsmen generally operate purely within the categories of means and ends, that is, instrumentally. See H. Arendt, The Human Condition. See infra text at notes 129 to 136.

129. H. Pitkin, supra note 82 at 211.

130. See Held, , Justification: Legal and Political, 86 Ethics 1–16 (1975)CrossRefGoogle Scholar.

131. See Luban, , Calming the Hearse Horse: A Philosophical Research Program for Legal Ethics, 40 Md. L. Rev. 451, 461 (1981)Google Scholar (the arguments for limiting Code of Professional Responsibility to strictly enforcible provisions).

132. As I finish this there comes across my desk an advertisement in which a very successful criminal defense lawyer and teacher of trial practice offers instruction in “psycholinguistic programming,” a behavioralist method of “persuasion.” A highly instrumental notion of the political sphere may be combined with a very refined and rigorous personal morality, as in one understanding of Kantian philosophy. The intense problem is then whether a person “should” participate in the political sphere at all. See Arendt, H., Lectures on Kant's Political Philosophy (1982)Google Scholar. See I. Kant, supra note 2, at 53, for his hostility to the medium of political discourse, rhetoric. For one development of the moral consequences of the discontinuity between absolute morality and political questions viewed as those in which “interests in the distribution, maintenance, or transfer of power are decisive,” see Weber, supra note 20 at 128. Weber argues that the internal cause for lawyers' prominence in modern politics—interest group party politics—is precisely their ability to make a “strong case” for interested clients. See Id. at 103. He warns however, that “the politician must “realize these ethical paradoxes … must know that he is responsible for what may become of himself under the impact of these paradoxes” for “[e]very thing that is striven for with violent means such [such as rhetoric] and following an ethic of responsibility endangers the “salvation of the soul.” Id. at 126. It is interesting to note that the American notions of professional “responsibility” actually seek to mitigate or totally remove the “ethic of responsibility” for concrete ends which Weber endorses. See Hazard, G., Ethics in the Practice of Law 151–53 (1978)Google Scholar. For a (somewhat) tongue-in-cheek speculation as to the reason for this abdication by an Augustinian-Platonist, see Wills, G., Confessions of a Conservative 175–79 (1979)Google Scholar (lawyers' professional morality of instrumental neutrality supports not justice but social harmony, a limited but basic good).

133. Arendt, H., The Human Condition 140 (1973)Google Scholar.

134. Id. at 139.

135. Id. at 156-57.

136. Id. at 140.

137. There are numerous resources for this notion of political-legal deliberation. Beiner relies especially on Arendt, Habermas, and Godamer among contemporaries and Aristotle among classical authors. R. Beiner, supra note 89.

138. Ackerman, B., Reconstructing American Law (1984)Google Scholar.

139. H. Pitkin, supra note 82, at 215.

140. Id. at 216.

141. R. Beiner, supra note 89, at 85.

142. Id.

143. Id.

144. Id. at 95.

145. Arendt specifically mentions the jury trial as one of the few contemporary forums where truly deliberative politics takes place. Hill, M., Hanna Arendt, Recovery of the Public World 2 (1979)Google Scholar.

146. See Arendt, , Lectures on Kant's Political Philosophy 67–70 (1982)Google Scholar.

147. See Beiner, supra note 89 at 126-28 on the importance of narrative to judgments concerning substantive social ends, “thick theories of the good.”

148. R. Beiner, supra note 89, at 117.

149. H. Arendt, supra note 146, at 73.

150. Arendt, , The Concept of History, in Between Past and Future 67 (1968)Google Scholar.

151. G. Kateb, supra note 20, at 11.

152. See The Federalist No. 10 (A. Hamilton).

153. It is crucial to remember that for Arendt political life, rather than religious or moral life, bears the enormous burden of redeeming human existence from meaninglessness. It stands as bulwark against true nihilism. H. Arendt, supra note 59, at 280-81 (1963).

154. Arendt, , Truth and Politics in Between Past and Future 227 (1968)Google Scholar. See also Arendt, , Lying in Politics in Crises of the Republic 3 (n.d.)Google Scholar. See Luban, , Against Autarky, 34 J. Legal Ed. 176 (1984)Google Scholar (legal education must be concerned with the specifically political virtues, justice first among them).

155. Arendt, Truth in Politics, supra note 154, at 227. For a contemporary parable of the fate of the truth-teller in Chicago's political and legal worlds, see S. Bellow, supra note 12.

156. M. Hill, supra note 145, at 31-32.

157. Id. at 236.

158. Id.

159. Id. at 238.

160. Id.

161. See supra text at notes 110-113.

162. M. Hill, supra note 145, at 238.

163. Id. at 239.

164. Id.

165. Id.

166. Id. at 239.

167. Id. at 240.

168. Id. at 241. For Arendt a political opinion has quality to the extent that it exhibits an “enlarged mentality” in its judgments. Id. at 241. See H. Arendt, supra note 146, at 42 (1982). Such a mentality confers an ability to consider a given issue from multiple perspectives: “[t]he more people's standpoints I have present in my mind while I am pondering a given issue, and the better I can imagine how I would feel and think if I were in their place, the stronger will be my capacity for representative thinking and the more valid my final conclusions, my opinion.” Arendt, supra note 154, at 241. Thus “the very quality of an opinion, as of a judgment, depends upon the degree of its impartiality.” Id. at 242. This kind of impartial-ity, however, is of a different order than that of the historian, the poet, or the philosopher: though it takes into account other people's perspectives, it remains wholly within the realm of opinion, akin to what lawyers call “community values.”

169. Id. at 243. This is a standard device of cross-examination.

Factual evidence, moreover, is established through testimony by eyewitnesses—notoriously unreliable—and by records, documents, and monuments, all of which can be suspected as forgeries. In the event of a dispute, only other witnesses but no third and higher instance can be invoked, and settlement is usually arrived at by way of a majority; that is, in the same way as the settlement of opinion disputes—a wholly unsatisfactory procedure, since there is nothing to prevent a majority of witnesses from being false witnesses. On the contrary, under certain circumstances the feeling of belonging to a majority may even encourage false testimony. In other words, to the extent that factual truth is exposed to the hostility of opinion-holders, it is at least as vulnerable as rational philosophical truth.

Arendt, Truth and Politics, supra note 154, at 243.

170. Arendt, H., The Life of the Mind (1978)Google Scholar.

171. Arendt, Truth in Politics, supra note 154, at 250.

172. Id.

173. Id. at 251.

174. Id.

175. Arendt cites a medieval parable to illustrate how difficult it is to deceive others without losing one's own sense of reality:

It is a story about what happened one night in a town on whose watchtower a sentry was on duty day and night to warn the people of the approach of the enemy. The sentry was a man given to practical jokes, and that night he sounded the alarm just in order to give the townsfolk a little scare. His success was overwhelming: everybody rushed to the walls and the last to rush was the sentry himself. The tale suggests to what extent our apprehension of reality is dependent upon our sharing the world with our fellow-men, and what strength of character is required to stick to anything, truth or lie, that is unshared. In other words, the more successful a liar is, the more likely it is that he will fall prey to his own fabrications. Furthermore, the self-deceived joker who proves to be in the same boat as his victims will appear vastly superior in trustworthiness to the cold-blooded liar who permits himself to enjoy his prank from without.

Id. at 254.

176. Id. at 255.

177. Id.

178. See supra text at notes 57 to 73.

179. Id. at 163.

180. But see G. Kateb, supra note 20.

181. Arendt, Truth and Politics, supra note 154, at 263. Simon hints at an understanding of law practice as this kind of political action, one which may involve “deception” in some circumstances. This understanding needs to be elaborated, along with a definition of its limits, limits Simon also hints at. See Simon, supra note 3, at 130-144. Although Simon has little sympathy for the methods of the traditional trial lawyer, his criticism is based on the litigator's stance of irresponsibility for the results of the legal proceedings in which he is engaged. I sense a tension in his thought between the virtues of a “political” understanding of law practice and the virtues of a moral or religious perspective on practice.

182. Plato, , Republic 592b in The Collected Dialogues of Plato (Shorey, P. trans., Hamilton, E. & Cairns, H. eds. 1961)Google Scholar.

183. MacIntrye, , Bernstein's Distorting Mirrors: A Rejoinder, 67 Soundings 30, 39 (1984)Google Scholar.