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Authoritarian Legal Ethics: Bradley Wendel And The Positivist Turn, William H. Simon

Faculty Scholarship

In this Review, I respond to the authoritarian theme in Lawyers and Fidelity to Law. In essence, I argue: neither libertarianism nor authoritarianism is a plausible starting point for a general approach to legal ethics. It is a great virtue of Ronald Dworkin’s jurisprudence that it suggests a conception of law and legal ethics that does not depend on either perspective. Moreover, it suggests a conception of lawyer responsibility that is more plausible than either Emersonianism or moralistic positivism. By gesturing toward positivism and by surrendering to less reflective authoritarian impulses, Wendel’s argument underestimates the extent to which social …