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Unique, Novel, And Unsound Adversary Ethic, Thomas L. Shaffer

Journal Articles

The dominant ethic in the American legal profession in 1988 is the adversary ethic. The adversary ethic, in the words of the late Justice Abe Fortas, claims that "[l]awyers are agents, not principals; and they should neither criticize nor tolerate criticism based upon the character of the client whom they represent or the cause that they prosecute or defend. They cannot and should not accept responsibility for the client's practices." This ethic is the principal—and often the only—reference point in professional discussions. Although it is embedded in our professional codes, our cases, and our law offices, this Article argues that …

The Legal Ethics Of Belonging, Thomas L. Shaffer

Journal Articles

Socrates went around Athens telling law teachers and law students that their highest concern should be to be good people. And, he said, the next and consequent concern of the profession should be to show the citizens of Athens how to be good people. For Socrates, as for virtually all of classical moral philosophy and much of Jewish and Christian moral theology, ethical discussion is discussion about the good person. When we talk about Aristotle's man of practical wisdom, or when we talk about heroes, saints, role models, paragons, or professional examplars, it is the good person we are talking …

Actual Minds, Possible Worlds (Book Review), Thomas L. Shaffer

Journal Articles

Book review of: Actual Minds, Possible Worlds, by Jerome Bruner; Time, Narrative, and History, by David Carr; Law, Freedom, and Story: The Role of Narrative in Therapy, Society, and Faith, by John C. Hoffman; and Narrative and Morality, by Paul Nelson.

The Gentleman In Professional Ethics, Thomas L. Shaffer

Journal Articles

The character of the “gentlemen” has served as a basis for ethics in professionalism. The purpose of this article is to describe the gentleman’s ethics, to explain its implications on the legal profession, to test its adequacy, and to argue that the gentleman’s ethic veered wrong by moving away from its religious tradition. In particular, the author analyzes its adequacy by engaging in four tests including (1) whether the gentleman’s ethic survives conceptions of class and professionalism; (2) whether it provides the skills needed for dealing with power and institutions; (3) whether it takes into account the “tragic nature of …

Moral Implications And Effects Of Legal Education Or: Brother Justinian Goes To Law School, Thomas L. Shaffer

Journal Articles

This Article explores the moral implications of a legal education. Specifically, the author addresses three moral points of view—teleologically, interpersonally, and responsibility—and explains how a legal education advances or is in opposition to a moral community.

The Legal Ethics Of The Two Kingdoms, Thomas L. Shaffer

Journal Articles

The question I propose to address while I am with you is this: Is there a special morality for professional life? In terms of convention and argot, the answer to that question would appear to be: Yes, there is a separate morality for the professional lives of lawyers and judges. We do not follow the same morals in public and professional life as we follow in personal life.

Christian Lawyer Stories And American Legal Ethics, Thomas L. Shaffer

Journal Articles

My view of legal ethics rests on, or at least involves, a couple of biases. For one thing, I think of legal ethics as an ethical subject rather than as a legal subject. When it comes to "professional responsibility" I am more interested in morals than I am in law. In this (and in very little else), I am in agreement with Dean Monroe Freedman, who said, in a lecture dedicated to the memory of Pope John XXIII, that the question which interests him is whether a good person can be a lawyer. For Freedman, I think, and for me, …

The Legal Ethics Of Servanthood, Thomas L. Shaffer

Journal Articles

I would like mainly to talk with you about, a consequential question, and that is whether the ethics of the New Testament are of any value in discussing professional morality. Such a question is probably f value to Jews and Christians; the New Testament is mostly about Jesus of Nazareth and (1) professionals to whom Jesus is of ultimate importance might claim to find value for their lives in his life. And (2) the God of Jesus is the God of Israel. The moral principles of Jesus are the moral principles of Israel. The question is of value, too, I …

Moral Theology In Legal Ethics, Thomas L. Shaffer

Journal Articles

I am talking at a Lutheran university and therefore should probably have some theses, some propositions that I could nail to the chapel door. But I'm afraid I have failed Martin Luther: I have only one thesis and it is not ready for a nail. It is still as much a question as a thesis. My question is whether there is any point in including moral theology in the study of legal ethics in the university. Let me be candid: I teach the typical required course in "professional responsibility," and I do a lot of writing on ethics, and I …

Henry Knox And The Moral Theology Of Law Firms, Thomas L. Shaffer

Journal Articles

One of the reasons we modern American lawyers find the "golden age" of our 19th century forebears attractive is that it was morally unambiguous. It seems to have been an age of giants who were consistent. The "republican" lawyers who wrote our first statements on legal ethics were moral theologians as well as leaders—and they found no difficulty in being both. David Hoffman, who attracted as much applause from the conservative Calvinists at Princeton Theological Seminary as he attracted from the bench and bar, drew no distinction between the morals he practiced at home and the morals he practiced in …

The Moral Theology Of Atticus Finch, Thomas L. Shaffer

Journal Articles

Heroes are identified by the needs of those who choose them. In the case of Atticus Finch, heroism centered on his insistence in telling the truth. In this article, Thomas L. Shaffer explores the idea that this truth was (I) an expression of the person he was and of the community he sought for his children and neighbors; (II) an expression of the virtue of courage and also (and therefore) the expression of a theology; (III) a political act; and (IV) a professional act. As early as 1854, Judge Sharswood (chief justice, law dean and eminent lawyer) could draw a …

The Practice Of Law As Moral Discourse, Thomas L. Shaffer

Journal Articles

The beginning and end of a lawyer's professional life is talking with a client about what is to be done. I My claim here is that this is a moral conversation. I will suggest three ethical orientations which seem to govern the conversation, and then weigh the adequacy of each of the three orientations.

Pluralist Christendom And The Christian Civil Magistrate, Robert E. Rodes

Journal Articles

The intersection of church and state today differs greatly from the symbiotic relationship of the past. This paper traces and critiques the advent and development of the Christian-government relationship down through the centuries to its current form. It finds that, and discusses how, current Christendom is split between a High Church attitude, which depicts the Church as above the state and outside of the state's limitations, and an Erastian approach, which views the Church as in dialogue with the state and as subject to the same limitations as other social institutions. Finally, the paper discusses the key differences between a …

Natural Law And The Marriage Of Christians, Robert E. Rodes

Journal Articles

Traditional Catholic marriage doctrine is under a good deal of pressure these days, and much of the pressure seems to come from canonists. It is not surprising that this should be the case. The ideal of Christian lovers giving themselves to one another irrevocably, and living out their commitment, with God's help, until death has lost none of its attractiveness. But as the canonists reflect on what they are doing, they become increasingly disturbed by their inability to offer a practical way out to people who have signally failed to implement the ideal in their lives.

Nevertheless, it seems to …

Abortion, The Law And Human Life, Thomas L. Shaffer

Journal Articles

The issue in abortion "reform" is whether existing criminal sanctions against doctors and pregnant women should be abolished or liberalized. From one point of view this is the question presented in any discussion of the criminal law—whether people should be put in jail for doing something. From another viewpoint, it is the question presented in any discussion of existing law—whether the reformers, who presumably have the burden of proof, have made a case. The controversy will be especially interesting to Indiana lawyers, who last winter saw an abortion-reform proposal pass both houses of the General Assembly and then die (abort?) …

A Suggestion For The Renewal Of The Canon Law, Robert E. Rodes

Journal Articles

Among the recommendations adopted by the Canon Law Society of America at its last annual meeting was one for bringing the insights of legal traditions besides the Roman to bear on the canonical system. The following suggestions are derived from the insights of my tradition, the common law tradition. That aspect of the common law tradition that I believe has most to contribute to the development of the canon law is concerned not so much with the particular rules of law as with the basic techniques of legal analysis. The common law tradition of legal analysis, as it has been …

Religious Education And The Historical Method Of Constitution Interpretation - A Review Article, Robert E. Rodes

Journal Articles

Confusion Twice Confounded is sufficiently typical of a growing body of literature to warrant more extensive treatment than is usually accorded in a book review. It analyzes at great length the opinions in the Everson and McCollum cases and criticizes them in the light of the historical background of the First Amendment. Everson, it will be recalled, derived from the Founding Fathers the doctrine that the Constitution required a "wall of separation between church and state," which was not breached by public payment of transportation to and from parochial schools. McCollum used the test laid down in Everson to invalidate …