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Published online by Cambridge University Press: 24 April 2015
It is one of the oldest stories around: A few or perhaps a dozen centuries ago, a person walking by a group of stone masons in a work crew at a half-finished cathedral asked each one in turn, “What are you doing?” The first replied, “I'm cutting stone.” The second said, “I'm earning the money I need to feed my family.” The third answered, “I'm building a cathedral.”
If today our passerby were to make a similar inquiry of three lawyers entering a courthouse, the answers might be, from the first, “I am going to argue a case,” and from the second, “I am working—billing some time—to feed my family.” If the third happened to have been influenced by Professor Thomas L. Shaffer, however, his response might be a bit more arresting. For over the past fifteen years Shaffer has been articulating with increasing clarity his perception that a lawyer is a person “called out of the church, sent out from [a] particular people, to do something that is religiously important.”
1. Shaffer, Thomas L., The Tension between Law in America and the Religious Tradition, in Law and the Ordering of Our Life Together 28, 45 (Neuhaus, Richard John ed., Wm. B. Eerdmans Publg. Co. 1989)Google Scholar [hereinafter Shaffer, Tension]. He spoke specifically there about businesspersons, but the thought applies to law practice as well, as Shaffer and others have recognized.
2. See Tension, supra n. 1; Shaffer, Thomas L. & Shaffer, Mary M., The Community of the Faithful, in American Lawyers and Their Communities: Ethics in the Legal Profession 196 (U. Notre Dame Press 1991)Google Scholar [hereinafter Shaffer, Faithful Community]; Shaffer, Thomas L., Review Essay: Stephen Carter and Religion in America, 62 U. Cin. L. Rev. 1601 (Spring 1994)Google Scholar [hereinafter Shaffer, Stephen Carter]; Shaffer, Thomas L., Human Nature and Moral Responsibility in Lawyer-Client Relationships, 40 Am. J. Juris. 1 (1995)CrossRefGoogle Scholar [hereinafter Shaffer, Human Nature]; Shaffer, Thomas L., On Teaching Legal Ethics in the Law Office, 71 Notre Dame L. Rev. 605 (1996)Google Scholar [hereinafter Shaffer, Law Office]; Shaffer, Thomas L., Maybe a Lawyer Can Be a Servant; If not …, 21 Tex. Tech. L. Rev. 1345 (1996)Google Scholar [hereinafter Shaffer, Servant]; Shaffer, Thomas L., The Christian Lawyer—An Oxymoron?, 175 America 12 (11 23, 1996)Google Scholar [hereinafter Shaffer, Oxymoron]; Shaffer, Thomas L., Towering Figures, Enigmas, and Responsive Communities in American Legal Ethics, 51 Me. L. Rev. 229 (1999)Google Scholar [hereinafter Shaffer, Towering Figures]; Shaffer, Thomas L., Should a Christian Lawyer Sign Up for Simon's Practice of Justice?, 51 Stan. L. Rev. 903 (04 1999)CrossRefGoogle Scholar [hereinafter Shaffer, Simon]; Shaffer, Thomas L., Nuclear Weapons, Lethal Injection, and American Catholics: Faith Confronting American Civil Religion, 14 Notre Dame J. L., Ethics & Pub. Policy 7 (2000)Google Scholar [hereinafter Shaffer, American Catholics]; Shaffer, Thomas L., More's Skill, 9 Widener J. Pub. L. 295 (2000)Google Scholar [hereinafter Shaffer, More's Skill]; Shaffer, Thomas L., Jews, Christians, Lawyers, and Money, 25 Vt. L. Rev. 451 (Winter 2001)Google Scholar [hereinafter Shaffer, Money]; Shaffer, Thomas L., Legal Ethics and Jurisprudence from Within Religious Congregations, 76 Notre Dame L. Rev. 961 (04 2001)Google Scholar [hereinafter Shaffer, Religious Congregations].
3. Shaffer's work has inspired an entire generation of lawyers, earning him wide recognition as “the father of the religious lawyering movement,” Pearce, Russell G., Foreword: The Religious Lawyering Movement: An Emerging Force in Legal Ethics and Professionalism, 66 Fordham L. Rev. 1075, 1078 (03 1998)Google Scholar, and in a very real sense triggering what has become a flood of personal testimony and legal argumentation about the relation between a lawyer's faith and his or her practice. For recent collections, see Symposium, Rediscovering the Role of Religion in the Lives of Lawyers and Those They Represent, 26 Fordham Urban L.J. 821 (04 1999)Google Scholar; Pearce, Russell G., Forward: The Religious Lawyering Movement: An Emerging Force in Legal Ethics and Professionalism, 66 Fordham L. Rev. 1075 (04 1998)Google Scholar; Faith, and the Law Symposium, 27 Tex. Tech. L. Rev. 911 (1996)Google Scholar. See Allegretti, Joseph G., The Lawyer's Calling: Christian Faith and Legal Practice (Paulist Press 1996)Google Scholar [hereinafter Allegretti, The Lawyer's Calling]; Smith, Abbe & Montross, William, The Calling of Criminal Defense 50 Mercer L. Rev. 443 (Winter 1999)Google Scholar; Levinson, Sanford, Identifying the Jewish Lawyer: Reflections on the Construction of Professional Identity, 14 Cardozo L. Rev. 1577, 1578–1579 (05 1993)Google Scholar [hereinafter Levinson, Jewish Lawyer]. Having dedicated an earlier work to Shaffer, , Howard Lesnick, The Religious Lawyer in a Pluralist Society, 66 Fordham L. Rev. 1469 (03 1998)Google Scholar [hereinafter Lesnick, The Religious Lawyer], my tribute to him here is to attend in careful detail to the content of what he has been advocating. But for the norms of scholarly writing, I would have entitled this essay, Taking Tom Shaffer Seriously.
4. Nasr, Seyyed Hossein, Ideals and Realities of Islam 98 (1967)Google Scholar.
5. For a concise discussion of the evolution of the meaning of the words, vocation and calling, see Allegretti, The Lawyer's Calling, supra n. 3, at 27-32.
6. Nasr, supra n. 4, at 98.
7. Arthur Miller's All My Sons is a classic text illuminating both aspects of this complexity. Miller, Arthur, All My Sons: A Play in Three Acts (Reynal & Hitchcock 1947)Google Scholar.
8. I have examined the legal question that arises when religiously grounded limits and professionally grounded norms directly conflict, in Lesnick, The Religious Lawyer, supra n. 3. The specific context there was the assignment of an attorney, conscientiously opposed to abortion on religious grounds, to represent a minor seeking a judicial “bypass” of parental consent to an abortion.
9. Shaffer, Faithful Community, supra n. 2, at 198.
10. It is important to note two observations about the boundaries of this essay.
First, I focus more on the implications of Shaffer's fundamental stance, looking at the profession from within the lawyer's community of faith, than on the merits of an initial decision to take that approach. Jack Sammons is perhaps the leading proponent of the polar stance, seeking to articulate and apply norms that are to be found within the practice of law itself. For the most recent and most fully articulated statement of his view, see Sammons, Jack L., “Cheater!”: The Central Moral Admonition of Legal Ethics, Games, Lusory Attitudes, Internal Perspectives, and Justice, 39 Idaho L. Rev. 273 (2003)Google Scholar. It hardly rebuts his position for me to acknowledge that it bespeaks a faith in the moral resources of the legal profession that I no longer can muster.
Second, it should be bome in mind that the following discussion deals only with the state of mind with which a lawyer approaches a client. The action that the lawyer ultimately takes depends also on the resulting lawyer-client interaction. For some of Shaffer's thoughts on the “moral conversation” between lawyer and client, see Shaffer, Simon, supra n. 2; Shaffer, Human Nature, supra n. 2. For other thought-provoking discussions of this difficult question, see e.g. Rodes, Robert E. Jr, Forming an Agenda—Ethics and Legal Ethics, 11 Notre Dame L. Rev. 977 (03 2002)Google Scholar [hereinafter Rodes, Agenda]; Uelmen, Amelia J., Can a Religious Person Be a Big Firm Litigator?, 26 Fordham Urb. L.J. 1069, 1093–1109 (04 1999)Google Scholar [hereinafter Uelmen, Religious Person]; Cochran, Robert F. Jr, Crime, Confession, and the Counselor-at-Law: Lessons from Dostoyevsky, 35 Hous. L. Rev. 327, 378–397 (Summer 1998)Google Scholar; Tremblay, Paul R., Practiced Moral Activism, 8 St. Thomas L. Rev. 9 (Fall 1995)Google Scholar.
11. Shaffer, Religious Congregations, supra n. 2, at 976 (quoting the Mennonite scholar Yoder, John Howard, The Priestly Kingdom: Social Ethics as Gospel 64 (1984))Google Scholar. Compare Shaffer's moving description of the education of Fr. Samuel Ruiz Garcia, former Bishop of San Cristobal, by his parishioners: “Bishop Ruiz discovered the Church in Chiapas.” Id. at 980 (emphasis added).
It is important to note and bear in mind that Shaffer is careful to acknowledge “respect for teachers—for what Catholics call ‘the magisterium’ of the church …. This respect … has nothing to do with papal infallibility; in my view it is best understood as resembling the rabbinical tradition in Judaism.” Shaffer, Servant, supra n. 2, at 1351, n.18.
12. Id. at 1350-1351. See Shaffer, Religious Congregations, supra n. 2, at 968.
13. Shaffer, Servant, supra n. 2, at 1352 (emphasis in original).
14. Shaffer, American Catholics, supra n. 2, at 22.
15. Shaffer, Faithful Community, supra n. 2, at 199. For his explanation of the oddity of the use of “church” in speaking of Jews, see Shaffer, Servant, supra n. 2, at 1356.
16. Shaffer, Servant, supra n. 2, at 1353.
17. Shaffer, Law Office, supra n. 2, passim, especially at 609-613.
18. Shaffer, Servant, supra n. 2, at 1350-1351, referring to the letter to the Gentiles approved by the Council of Jerusalem: “The Holy Spirit and we have agreed ….” Acts 15: 28.
19. Shaffer, American Catholics, supra n. 2, at 10.
20. Id. at 10-11 (quoting the Netziv of Volzhin from Bleich, J. David, Tikkun Olam: Jewish Obligations to Non-Jewish Society, in Tikkun Olam: Social Responsibility in Jewish Thought & Law 61, 91 (Shatz, David, et. al. eds., 1997))Google Scholar.
21. Levinson, Jewish Lawyer, supra n. 3, at 1578-1579.
22. Shaffer, Tension, supra n. 1, at 49.
23. Shaffer, Faithfitl Community, supra n. 2, at 198.
24. Rodes, Agenda, supra n. 10, at 977. The objects of Rodes' verbs are, of course, God and neighbor. Cf. Kaveny, M. Cathleen, Billable Hours in Ordinary Time: A Theological Critique of the Instrumentalization of Time in Professional Life, 33 Loyola U. Chi. L.J. 173, 184 (Fall 2001)Google Scholar [hereinafter Kaveny, Ordinary Time]: “[I]t is a serious mistake for lawyers charging for their services to think that they are selling something that is exclusively theirs, despite the fact that they are billing their time.”
25. This in no way suggests that the transformation is easily brought into daily awareness. See Allegretti, Lawyer's Calling, supra n. 3, at 20-21, 32-33; Vogel, Howard J., The Terrible Bind of the Lawyer in the Modern World: The Problem of Hope, the Question of Identity, and the Recovery of Meaning in the Practice of Law, 32 Seton Hall. L. Rev. 152 (2001)Google Scholar.
For a stunning suggestion of the possibilities of transformation that a Christian consciousness might bring to the practice of law, see William Stuntz's speculation on how Jesus carried on his trade as a carpenter—what might have been “his motivations and attitudes toward his work, the ways he treated his customers and his coworker.” Stuntz, William J., Christian Legal Theory, 116 Harv. L. Rev. 1707, 1721–1722 (2003)CrossRefGoogle Scholar.
26. Shaffer, Religious Congregations, supra n. 2, at 963-964.
27. Id. at 965.
28. Shaffer, Servant, supra n. 2, at 1353.
29. With Shaffer specifically in mind, Milner Ball quotes Paul Lehmann's assertion that “the environment of decision, not the rules of decision, gives to behavior its ethical significance.” Ball, Milner S., Commentary on the Work of Thomas L. Shaffer: Out of the West Rides an Unmasked Stranger …, 10 J. L. & Relig. 339, 341 (1993–1994)Google Scholar [hereinafter Ball, Unmasked Stranger] (emphasis in original). Ball adds: “That is why lawyers' ethics is not a matter of individual choices but of communities and origins.” Id.
30. Shaffer, American Catholics, supra n. 2, at 12. “[T]he way we believers decide whether an idea is good or bad” has greater significance than the answer. Id. at 23.
31. Shaffer, Simon, supra n. 2, at 917.
32. Shaffer, Servant, supra n. 2, at 1353 n. 25. “Questions” are more significant than “rules or principles.” Shaffer, Religious Congregations, supra n. 2, at 966. “[W]hatever would come out of moral discernment for believers who are lawyers would not be, as to anyone, coercive.” Shaffer, Towering Figures, supra n. 2, at 237.
33. See supra n. 11.
34. I have developed at some length my own understanding of the relation between God and humanity in Lesnick, Howard, Listening for God: Religion and Moral Discernment (Fordham U. Press 1998)Google Scholar [hereinafter Lesnick, Listening for God]. This is not the place to rehearse or defend my views.
35. For a brief account of my experience in that regard, see id. at 91-92. Quaker silence, it hardly need be said, is “not the mere outward silence of the lips,” but a challenging active practice requiring “a deep quietness of heart and mind, a laying aside of all preoccupation with passing things.” Caroline Stephen, as quoted in Seeger, Daniel A., Silence: Our Eye on Eternity 8 (Pendle Hill Pamphlet No. 318, 12 1994)Google Scholar. It is, moreover, primarily a communal act, with the Meeting an essential participant in an individual's discernment, though no words be exchanged.
36. Some two decades ago, I ventured to defend a willingness to admit tears, prayers, and even anger in argument, into thinking about legal questions, but on the rather limited ground that they in fact played a part in the lives and minds of the people who brought “legal questions” to lawyers. Lesnick, Howard, Legal Education's Concern with Justice: A Conversation with a Critic, 35 J. Leg. Educ. 414, 418 (1985)Google Scholar. I did not then acknowledge the role that those nonrational acts properly play in the formation of our own moral judgments as lawyers. See my more recent broader recognition in Lesnick, Listening for God, supra n. 34, at 89-90.
37. “[A] repetitive religious experience … comes in time to haunt daily life and cast a kind of indirect light upon it.” Geertz, Clifford, Islam Observed: Religious Development in Morocco and Indonesia 110 (Yale U. Press 1968)Google Scholar [hereinafter Geertz, Islam Observed].
38. Personal ltr. from Milner Ball to Howard Lesnick (Mar. 15, 2002) (on file with Howard Lesnick).
39. Personal ltr. from James Boyd White to Howard Lesnick (Apr. 1, 2002) (on file with Howard Lesnick).
40. Shaffer, Faithful Community, supra n. 2, at 22.
41. Shaffer, Thomas L., Faith Tends to Subvert Legal Order, 66 Fordham L. Rev. 1089 (03 1998)Google Scholar.
42. Shaffer, Religious Congregations, supra n. 2, at 967.
43. Id. at 979.
44. The quoted words are the headings of sections of the text; see id. at 970-975.
45. Among many examples of the indictment of religion on this ground, see Maguire, Daniel C., The Moral Core of Judaism and Christianity: Reclaiming the Revolution (Fortress Press 1993)Google Scholar; Sivaraksa, Sulak & Ginsburg, Tom, Seeds of Peace: A Buddhist Vision for Renewing Society (Parallax Press 1992)Google Scholar; Westphal, Merold, Suspicion and Faith: The Religious Uses of Modern Atheism (W.B. Eerdmans Pub. Co. 1993)Google Scholar.
46. A sympathetic critic has eloquently described the problem in these terms:
[The] attempt to describe the “community of the faithful” as a body of resident aliens is as theologically necessary as it is sociologically suspect. Skeptical, pragmatic, successful, individualistic, secular America shows up in church on Sunday morning. Lawyers show up, blissfully unaware that they have entered a closed-off, alternative polity.
…..
These facts do not invalidate Shaffer's project. (To the contrary: they make it more urgent!) But they mean he will have a tough time getting a hearing. For his believer-lawyers will first have to learn to become the strangers, “minorities,” and “Others” that Moses' God requires them to be …. [P]ower-holders have difficulty being outcasts.
Gerber, Leslie E., Can Lawyers Be Saved? The Theological Legal Ethics of Thomas Shaffer, 10 J. L. & Relig. 347, 365, 366 (1993–1994)Google Scholar.
47. Shaffer, Law Office, supra n. 2, at 611.
48. Id. at 611-612.
49. Shaffer has elsewhere quoted the tellingly pertinent insight of Herbert Fingarette:
You wrongly treat the virtue of honesty and truthfulness in terms of an abstract principle to be understood as a logical universal. This seems to me to be incompatible with the spirit of responding to particular human beings, rather than living a moral life conceived ultimately in terms of abstract principles.
Shaffer, Thomas L., American Legal Ethics: Text, Readings, and Discussion Topics 17 (Matthew Bender & Co., Inc. 1985)Google Scholar. I am indebted to Milner Ball, who in personal correspondence has developed this thought with great power and eloquence.
50. Rules 1.15(a) (commingling) & 3.3(a)(3) (2003) (as amended, 2002, but not yet adopted by any State) (client perjury), Model Rules of Professional Conduct, 2003 ed. (Am. Bar Assoc. 2002)Google Scholar [hereinafter ABA 2003 MRPC]. For the earlier version of Rule 3.3(a)(3), see ABA Model R. Prof. Conduct 3.3(a)(4) & Cmt. 11, in Gillers, Stephen & Simon, Roy D., Regulation of Lawyers: Statutes and Standards 219 (Aspen L. & Bus. 2002)Google Scholar.
51. ABA 2003 MRPC, supra n. 50, at “Preamble,” paras. 7 & 9.
52. See Shaffer, Religious Congregations, supra n. 2, at 963-964.
53. For one carefully reasoned example among dozens of such suggestions, see Pepper, Stephen L., The Lawyer's Amoral Ethical Role: A Defense, A Problem, and Some Possibilities, 1986 Am. B. Found. Res. J. 613 (1986) [hereinafter Pepper, Amoral Role]Google Scholar.
54. Deut 6:18.
55. Deut 28:9.
56. Matt 16: 24 (among several other moments).
57. See Lichtenstein, Aharon, Does Jewish Tradition Recognize an Ethic Independent of Halakha?, in Modern Jewish Ethics 62 (Fox, Marvin ed., Ohio St. U. Press 1975)Google Scholar. Observes Rabbi Lichtenstein, we are commanded to “aspire.” Id. at 81. I discuss this idea briefly in Lesnick, Listening for God, supra n. 34, at 143-144. For an imaginative analysis, from a secular perspective, of the question whether there can be a moral obligation to reach beyond moral Obligation, see Hurd, Heidi M., Duties Beyond the Call of Duty, 6 Jahrbuch fur Recht und Ethik (Annual Review of Law and Ethics) (1998)Google Scholar.
58. See McConnell, Michael W., Old Liberalism, New Liberalism, and People of Faith, in Christian Perspectives on Legal Thought 5, 14 (McConnell, Michael, et al. eds., Yale U. Press 2001)Google Scholar. Stephen Pepper sees this understanding as a corollary of our prevailing political ethic. Pepper, Amoral Role, supra n. 53, at 616-617. For a brief critique of this position, see Lesnick, Howard, Being a Lawyer: Individual Choice and Responsibility in the Practice of Law 49–51 (West Publg. Co. 1992)Google Scholar.
59. See Shaffer, Servant, supra n. 2, at 1351.
60. See Shaffer, Faithful Community, supra n. 2, at 198.
61. I proceed cautiously here, aware that I am attributing to Shaffer views expressed by others, which I believe are congruent with his. The danger is that I may be influenced by the fact that they are congruent with my own.
62. See Kaveny, Ordinary Time, supra n. 24, at 176, quoting George A. Lindbeck.
63. See Uelman, Religious Person, supra n. 10, at 1091.
64. Id. at 1079. Indeed, Uelmen observes, a focus on “highly particular” maxims actually undermines support for religiously-influenced decisionmaking in law practice, for it “could portray a caricature of religious lawyers as immature and insensitive, lacking a basic sense of moral complexity, and awkward and bumbling in the course of their interactions in a pluralistic society.” Id. at 1089.
65. For a penetrating discussion of the method of analogy in this context, see Failinger, Marie A., The Justice Who Wouldn't Be Lutheran: Toward Borrowing the Wisdom of Faith Traditions, 46 Clev. St. L. Rev. 643, 655–660 (1998) [hereinafter Failinger, Lutheran Justice]Google Scholar.
66. In Uelmen, Religious Person, supra n. 10, at 1090-1091, Amy Uelmen questions the tendency of many commentators to pose one-dimensional questions of clashes between professional norms and flat prohibitions against participating in specific acts, such as abortions, blood transfusions, and divorces, neglecting the more far-reaching call of more subtle religious norms. In Kaveny, Ordinary Time, supra n. 24, at 181-214, Cathleen Kaveny articulates and contrasts the underlying premises of the conception of time prevalent in law practice (and the broader capitalist culture) with that of the Roman Catholic tradition, describing with particularity the profound influence of that set of implicit premises on lawyers' stance toward their work life. In Failinger, Lutheran Justice, supra n. 65, at 665-701, Marie Failinger tests some of the unacknowledged premises of Chief Justice Rehnquist's jurisprudence, which she describes as “a limited role for the judicial use of reason” (666), “a preference for ‘order over liberty’” (667), the absence of a “moral critique available … to substantiate the propriety of particular legislation” (667), and “a thorough lack of rhetorical concern for the neighbor,” (693) against some fundamental principles of Lutheran theology: law as divine gift rather than divine command, a paradoxical affirmation of and deep suspicion of power, and “the premise that neighbor-love is responsive to God's love.” (693)
67. For the caveat, see infra nn. 82-84 and accompanying text.
68. Most of the examples that follow arose in Shaffer's practice as a legal aid lawyer in the Notre Dame Clinic.
69. Shaffer, Oxymoron, supra n. 2, at 12-13. To Shaffer, the “third parties” are not so much the lawyer's “brother and sister” attorneys but the “significant number of investors [who] were cheated when the securities were marketed.” Id. at 13.
For a well-known discussion of a similar question a generation ago, see Ferren, John M., The Corporate Lawyer's Obligation to the Public Interest, 33 Bus. Law. 1253, 1257–1258 (1978)Google Scholar. Ferren finds professional norms to preclude disclosure, a result that he criticizes, but on the ground that it permits using false information to “shop for a lawyer.” Id. at 1258. The endangered aircraft passengers in his account (like the defrauded investors in Shaffer's example) are apparently off the radar screen.
70. Shaffer, Human Nature, supra n. 2, at 14. Here, although there is no professional rule requiring the lawyer to undertake this representation, the contours of ABA 2003 MRPC Rule 1.2 provide multiple reassurances that such a course of action bears no burden of justification.
71. Shaffer, Simon, supra n. 2, at 905-907; Shaffer, Oxymoron, supra n. 2, at 17; Shaffer, Human Nature, supra n. 2, at 4-9. Shaffer's premise here is that, should the daughter later want to recover her parental rights and the grandmother then resist, local law might make it virtually impossible for the daughter to succeed; his “conscience says to [him] that God wants children to be with their mothers.” Shaffer, Oxymoron, supra n. 2, at 17. (On Shaffer's understanding of the Indiana law, see Shaffer, Human Nature, supra n. 2, at 7; Shaffer, Simon, supra n. 2, at 905, supra n. 17.)
Ethical Consideration 7-8 of the ABA Model Code of Professional Responsibility, still in force in a number of States, famously authorizes the lawyer to include morally grounded considerations in his or her advice to the client. It is to remain clear that the ultimate decision is for the client, but attorney withdrawal to avoid carrying out the client's wish is expressly permitted. Except for the assertion that the lawyer “should bring to bear … the fullness of his experience” in advising the client, there is again no burden of justification imposed for going forward without hesitation as the client wishes.
72. This example was supplied by Bill Simon; see Shaffer, Simon, supra n. 2, at 911-912. The question is a “trap.” Although employment is irrelevant to the merits of the petition, if it is disclosed “the petition is dead at the mailbox.” Id. at 911. But ABA 2003 MRPC Rule 3.3(a)(1) or (34) may prohibit non-disclosure of a client's false statement if the Immigration Service is deemed to constitute “a tribunal.” Gillers, supra n. 50, at 219.
73. Shaffer, Religious Congregations, supra n. 2, at 973. ABA 2003 MRPC Rule 1.8(e) permits institutional defendants routinely to use the law's delay to force necessitous plaintiffs to accept inadequate settlements. See the brief, veiled reference to this problem in Wolfram, Charles W., Modern Legal Ethics 509 (West Publg. Co. 1986)Google Scholar.
74. Shaffer, Simon, supra n. 2, at 915-916. See Simon's discussion of the issue, in Simon, William H., The Practice of Justice: A Theory of Lawyers' Ethics 146–147 (Harv. U. Press 1998)Google Scholar. The claim is presumably groundless under existing law. ABA 2003 MRPC Rule 3.1, probably therefore prohibits a lawyer from making or advising a client to make it. Gillers, supra n. 50, at 211. Simon would give much, and Shaffer little, moral force to the “statutory purpose” in restricting deductibility, and to the limitations on the ability of the IRS to discover on audit claims of deductions not warranted under the law.
75. Exod 20:3.
76. Shaffer has made this point more than once. See e.g. Tension, supra n. 1, at 40; Shaffer, American Catholics, supra n. 2, at 10-12; Shaffer, Servant, supra n. 2, at 1347-1348. See Lesnick, Listening for God, supra n. 34, at 149, 158.
The great 20th Century Jewish philosopher Martin Buber put the matter this way:
The atheist does not know God, but the adherent of a form of ethics which ends where politics begins has the temerity [sic] to prescribe to God, [whom he professes to know], how far his power may extend …. [W]e do give him up [W]e give up God … when we profess him in synagogue and deny him when we come together for discussion, when we do his commands in our personal life, and set up other norms for the life of the group we belong to.
Buber, Martin, And If Not Now, When?, in Israel and the World: Essays in a Time of Crisis 234, 236 (First Syracuse U. Press Ed. 1932/1997-1948)Google Scholar.
77. Lev 19: 18. It was a lawyer who “stood up to test Jesus,” Luke 10: 25-29, and prompted his profoundly challenging teaching on this text, in the Parable of the Good Samaritan. Id. at 3037. For my understanding of the teaching, see Lesnick, Listening for God, supra n. 34, at 141-143.
78. Amy Uelmen, seeing the search for the common good as the fundamental motivating force of her work, grounds her understanding of that term in the Second Vatican Council's Pastoral Constitution on the Church and the Modern World, Gaudium et Spes: “Every group must take into account the needs and legitimate aspirations of every other group, and still more of the human family as a whole.” Uelmen, Religious Person, supra n. 10, at 1079. “As such,” she infers, “the common good is that which a person reaches only if it includes as a consequence, the good of the others.” Id.
79. See Shaffer, Faithful Community, supra n. 2, at 198.
80. See Shaffer, Simon, supra n. 2, at 917 and accompanying text.
81. See Shaffer, Servant, supra n. 2, at 1352 and accompanying text (emphasis deleted).
82. Speaking of churches like the “communities of moral discernment” to be found in the 16th Century, Shaffer describes the community as “competent to decide matters of professional ethics.” Shaffer, Religious Congregations, supra n. 2, at 979 (emphasis supplied). In such settings, he may see the autonomy of the individual as sufficiently embodied in “the fact that the individual made a free, adult, continuing choice to be in the congregation.” Id. at 978.
83. Id. at 979.
84. I am reminded of the practice of a young man I met, a Westerner who had converted to Islam and was often asked, because of the way he dressed, whether he was a Muslim. He sometimes answered, “I don't know,” and responded to the perplexed reaction this engendered by saying, “Muslim is an Arabic word meaning one who has surrendered to the will of God. Only God knows whether I am Muslim. I can only say I try.”
85. Abel, Richard L., Why Does the ABA Promulgate Ethical Rules?, 59 Tex. L. Rev. 639, 686 n. 257Google Scholar.
86. George Cooper has brilliantly portrayed the competing outlooks in his fictional attorneys, Senior and Younger, as they engage one another's fundamentally differing approaches to “aggressive tax planning,” the meaning of ethical practice and the idea of self-imposed obligations, indeed, the meaning and purpose of practicing law. Cooper, George, The Avoidance Dynamic: A Tale of Tax Planning, Tax Ethics, and Tax Reform, 80 Colum. L. Rev. 1553, 1577–1596 (12 1980)CrossRefGoogle Scholar. See the discussion in Lesnick, Being a Lawyer, supra n. 58, at 206-209.
87. I recall hearing Roman Catholic natural-law philosopher Robert George, addressing a largely Catholic audience, advance as the dispositive criterion of moral judgment the simple question, “What does Jesus say?” To a questioner who objected that the Gospels are simply silent on many contemporary moral questions, George replied, “Jesus speaks through the Magisterium.” Were one to have countered, “Who says so?,” he would presumably have responded that Jesus himself did, in naming Peter as the keeper of the keys of the Kingdom, Matt 16: 19; cf. id. 18: 18, read by the editors of The New Oxford Annotated Bible as establishing that “[t]he authority to interpret Jesus' teaching extends to the community's judicial decisions.” The New Oxford Annotated Bible 35n (New Testament pagination) (Coogan, Michael D., ed., 3d ed. 2001)Google Scholar.
Compare what seems to me the far narrower view of another esteemed Roman Catholic scholar, Robert Rodes:
[Mjany faith traditions recognize some privileged source of religious discernment within their foundation documents, the community of their believers, or the polity of their church. But only a few such traditions claim a broad sweep of privileged moral discernment. In my own tradition, Roman Catholicism, the higher echelons of the polity claim privileged discernment of a few principles of general morality that Catholic lawyers have to take into account in their practice. Some faith traditions go farther, but most do not go even as far.
Rodes, Agenda, supra n. 10, at 979.
A more fundamental divergence from George's view is expressed by Michael Perry, also writing out of the Roman Catholic tradition. To Perry (speaking through a hypothetical person, Sarah):
For Sarah, for whom God is love, not supreme legislator, some things are good for us to do or refrain from doing not because God commands them, but because God is what (who) God is, because the universe … is what it is, and, in particular, because we human beings are who we are.
Perry, Michael J., What Is “Morality” Anyway?, 45 Vill. L. Rev. 69, 77 (2000)Google Scholar.
88. My teacher, Rabbi Mareia Prager, has eloquently articulated a religious consciousness that denies the necessity of dichotomizing external and internal sources of obligation:
The Living God speaks to each of us from the inside out, in our own voice. For my soul to recognize God's voice there must be an inner voice I hear, an imperative in the depths of my soul. The word “commandment” casts God's voice as if it were only a voice of external authority, but our teachers know that when we truly hear, we hear an inner voice and touch an inner knowing as well.”
Prager, Marcia, The Path of Blessing: Experiencing the Energy and Abundance of the Divine 156–157 (Bell Tower 1998)Google Scholar. Listening for God is my attempt, congruent with this thought, to present a view of religion as “an expression not of a command but of a truth.” Lesnick, Listening for God, supra n. 34, at 113 (emphasis deleted). In its final chapter, I suggest a parallel way of looking at legal obligation. Id. at 132-160.
89. Shaffer, Money, supra n. 2, at 460. On my hypothesis as to a contributing cause of this stance, see the account of his experience in Law Office, and his own reflection:
Some of us [teachers and students] have moved radically to the left—perhaps in the way that Latin American liberation theologians have—as we [have] become involved in the lives of people from the American underclass whom we come to know, and as our clients show us what courage is. Shaffer, Law Office, supra n. 2, at 610.
90. Shaffer, Money, supra n. 2, at 459, 454.
91. Id. at 458.
92. See id. at 451 n.4.
93. Id. at 465.
94. Id. at 468. For a similar theme, drawing heavily on the writing of Christian theologian Sondra Ely Wheeler, see Shaffer, Religious Congregations, supra n. 2, at 965-967.
95. Id. at 961.
96. In this, I can claim only a fragment of the wisdom of Milner Ball. Speaking of Shaffer's words as “prophetic”—“gentle but not the less powerful and prophetic”—he responds: “The appropriate response to prophecy is to receive and act upon it, not to make it the subject of law journal commentary. Accordingly, I offer a personal report rather than scholarly criticism.” Ball, Unmasked Stranger, supra n. 29, at 344.
97. Cf. Michael Perry, supra n. 87; Amy Uelman, in Uelmen, Religious Person, supra n. 10, at 1079 (“Religious reflection brings me to a sense of obligation—not because of an external command, but rather out of an internal conviction about the essence of my nature as a person and the consequent relationships with God and with others”). To Shaffer, “the religious tradition … has not understood itself as a philosophy or a preference or a point of view. It has understood itself as a sequence of facts that those in the tradition learn to remember.” See Shaffer, Tension, supra n. 1, at 28.
98. Lewis, C.S., Surprised by Joy: The Shape of My Early Life 231 (Harcourt, Brace, & World, Inc. 1955)Google Scholar.
99. I have set out my own beliefs and doubts in Lesnick, Listening for God, supra n. 34, at 25-43.
100. The entry on Pascal, Blaise in The Encyclopedia of Religion vol. 11, 201, 203 (Eliade, Mircea & Adams, Charles J. eds., Macmillan 1987)Google Scholar describes his famous “wager” as “a way to persuade a skeptic that he ought to bet on God, however uncertain of God's existence he might be; it is … [not] another ‘proof of a theological truth. It is practical advice ….:” You have much to gain if your “bet on God” turns out to be right, and much to lose if your bet against God turns out to be wrong.
101. For an especially noxious example, see (if you must) the testifying of Justice Scalia, preening himself on his assertedly superior insight into the Roman tradition and the consonance of the death penalty with Christian morality. Scalia, Antonin, God's Justice and Ours, 123 First Things: J. Religion & Pub. Life 17 (05 2002). (available at http://www.firstthings. com/ftissues/ft0205/articles/scalia.html)Google Scholar.
102. Shaffer has had critical things to say about what he and others term “American civil religion,” into which most contemporary religious bodies have fit themselves, and which enables many to live comfortably in a religious community and forget or disregard the priority of religious claims. However, I believe that his complaint is that they do not live by their own professions. (Among the works cited in supra n. 2, Oxymoron has a very brief summary statement of this idea, id. at 13-14).
He also speaks critically of the norms of the legal profession, but it would be a mistake to read him as if he were calling for the Rules-drafters, Congress, or the Supreme Court to accommodate those norms to “the call of faith.” (I have made a secularly-grounded claim along those lines, in Lesnick, The Religious Lawyer, supra n. 3, at 1469-1493.). He is rather saying how believing lawyers should respond to the “tension” between their beliefs and professional rules and norms; the problem is what the church should do about the government, not what the government should do about the church. Shaffer, American Catholics, supra n. 2, at 10.
103. See Shaffer, Faithful Community, supra n. 2, at 199.
104. See Shaffer, Religious Congregations, supra n. 2, at 963.
105. See Shaffer, Tension, supra n. 1, at 47.
106. Shaffer, Thomas L., The Biblical Prophets as Lawyers for the Poor, Address on Legal Ethics, Religious Values and Poverty Law, given at Fordham University School of Law, Conference on Religious Values and Poverty Law: Clients, Lawyers & Communities, 01 31, 2003 (copy on file with the author)Google Scholar.
107. Gorgias *474a-b, 476a in Plato Complete Works 791, 817–818, 820 (Cooper, John M. ed., Zeyl, Donald J. trans., Hackett Publg. Co., Inc. 1997)Google Scholar.
108. Id. at Crito *46b, 37, 41 (G.M.A. Grube trans.).
109. Id. at *48c, d, 43.
110. Id. at Gorgias *5276, 869.
111. Gorgias, supra n. 107, at *527b, 869 (emphasis in original).
112. Socrates' commitment to acting on his rationally arrived-at discernments was explicitly grounded in his religion. “It is impossible,” he told his jurors at the “sentencing” phase of his trial, “for me to keep quiet because that means disobeying the god.” Id. at Apology *38, 17, 33 (G.M.A. Grube trans.). If to us that rings less powerfully than (for example) Martin Luther's declaration to the Diet of Worms, “Here stand I; I can do no other” in (Oxford Dictionary of Quotations 432 (Partington, Angela ed., 4th ed., Oxford U. Press 1992))Google Scholar, it may be so partly because Socrates' “god” seems so foreign to us, and partly because we have learned to be rather cynical about the distinction between rationality and rationalization. Most fundamentally, however, I believe the reason is that to Socrates rational discourse seems to have been the only route to discernment of the Divine will. Charles Kahn describes the Platonic conviction that: “the unseen, intangible world, accessible only to rational thought and intellectual understanding, is vastly more meaningful, more precious, and more real than anything we can encounter in the realm of ordinary experience.” Kahn, Charles H., Plato and the Socratic Dialogue: The Philosophical Use of a Literary Form 66 (Cambridge U. Press 1996) (emphasis supplied)Google Scholar. See Adam, James, The Religious Teachers of Greece 337 (Ref. Book Publishers, Inc. 1965)Google Scholar: “On questions of morality and conduct … [o]ur business is to determine [them] by the exercise of reason, and reason alone.” (On the complexity of Socrates' thought, see id. at 320 et seq; Weiss, Roslyn, Socrates Dissatisfied: An Analysis of Plato's Crito 15–19 (Oxford U. Press 1998))CrossRefGoogle Scholar. In our religious traditions, the route to “the god” is inescapably (although not entirely) noncognitive. See Lesnick, Listening for God, supra n. 34, at 89-101.
113. Marie Failinger has written profoundly about the possibilities and limitations of professional and religious “communities of memory” in preserving what she terms “fidelity” to moral obligations. Failinger, Marie A., Is Tom Shaffer a Covenantal Lawyer?, 77 Notre Dame L. Rev. 705, 767–784 (2002) [hereinafter Failinger, Covenantal Lawyer]Google Scholar.
114. In other writing, Shaffer does celebrate the moral discernment supplied to lawyers by the ethnic communities from which they have come. See e.g. Shaffer, Thomas L. & Shaffer, Mary M., American Lawyers and Their Communities: Ethics in the Legal Profession (U. Notre Dame Press 1991)Google Scholar. While those ethnic groups were characteristically religiously strong, their ethnicity may have been prior in generating the grounding to which Shaffer points. I owe my recognition of this point to Milner Ball.
115. Menkel-Meadow, Carrie, And Now a Word About Secular Humanism, Spirituality, and the Practice of Justice and Conflict Resolution, 28 Fordham Urban L.J. 1073 (04 2001) [hereinafter Menkel-Meadow, Now a Word]Google Scholar.
116. Id. at 1076.
117. Id. at 1077.
118. Id. at 1078.
119. Id. at 1079.
120. See Shaffer, Servant, supra n. 2, at 1350 n. 16.
121. Menkel-Meadow speaks especially of “women's consciousness raising groups,” but much more broadly of “alternative institutions” such as “communes, group homes, participatory networks, labor alliances, new relationships, and political organizations,” insisting that “there was moral teaching in these movements.” Menkel-Meadow, Now a Word, supra n. 114, at 1077-1078.
122. See Shaffer, Simon, supra n. 2, at 917.
123. Shaffer, Servant, supra n. 2, at 1350 n. 16.
124. Shaffer may well agree that its “communal quality” is more salient than the specifics of its “belief.” “All that [“church”] can mean, by way of definition, is ‘people of God’, and only God knows who God's people are.” Personal correspondence from Thomas L. Shaffer to Howard Lesnick (copy on file with the author).
Cathleen Kaveny understands Catholic thinking to use the term, “church,” to refer “to all those, of whatever faith, who live in accord with divine will,” explicitly including Jews and Moslems. Kaveny, Ordinary Time, supra n. 24, at 209 n. 97. Whether she, or the Roman tradition, means to includes non-believers is not clear from her language or quotations. Martin Buber, in discussing what many today would regard as self-evidently an oxymoron, religious socialism, wrote: “[S]ocialism without religion does not hear the divine address, it does not aim at a response, yet still it happens that it responds.” The Way of Response: Martin Buber—Selections from his Writings 158 (Glatzer, Nahum N. ed., Schocken Books 1966)Google Scholar.
125. Ball, Unmasked Stranger, supra n. 29, at 341.
126. See Lesnick, Listening for God, supra n. 34, at 66-69; Lesnick, The Religious Lawyer, supra n. 3, at 1500-1501.
127. See Shaffer, Tension, supra n. 1, at 47.
128. See the quotations from the work of Sandra Schneiders, Cornel West, & Richard Rubenstein in Lesnick, The Religious Lawyer, supra n. 3, at 1500 n. 135.
129. See the brief discussion in Lesnick, Listening for God, supra n. 34, at 67-68, from which the two preceding sentences in the text are taken.
130. Nussbaum, Martha C., Valuing Values: A Case for Reasoned Commitment, 6 Yale J.L. & Human. 197, 212 (Summer 1994) (emphasis supplied)Google Scholar.
131. Id. Anthropologist Clifford Geertz understands this grounding of a sense of obligation as a primary function of “the religious experience” of ritual. Geertz, Islam Observed, supra n. 37, at 110.
132. Sara Cobb, Director of the Harvard Project on Negotiation, has written insightfully (and movingly) of moments in the course of a mediation session when “something happens in the room, something that is more important than the agreement that is emerging, that the conflict is itself just a vehicle for the creation of something sacred, something whole, something holy.” Cobb, Sara, Creating Sacred Space: Toward a Second-Generation Dispute Resolution Practice, 28 Fordham Urb. L.J. 1017, 1017 (04 2001)Google Scholar. Her article effectively combines experience and analysis to describe an approach that is neither religious nor secular.
133. Shaffer, Faithful Community, supra n. 2, at 199.
134. Marie Failinger, describing several forms of religious witness, characterizes them as relying on no force save the force of the story they tell. Yet, she notes, “for some who will not see or hear, the story still feels like force, because it demands them to consider the possibility that they have turned their eyes and ears away from the truth. But,” she goes on:
understanding the response … also reminds the … storyteller that he does not need to use worldly forms of force—rules and sanctions, physical force, or social pressure—on his fellow non-believing lawyers …. [T]o be storytellers is ultimately to let go of [one's] own security …, to trust that the story is powerful enough to transform without the need for worldly forms of power.
Failinger, Covenantal Lawyer, supra n. 112, at 792. Tom Shaffer, she concludes, embodies this form of witness. See id. at 792-793.