1. Applbaum, Arthur Isak, Professional Detachment: The Executioner of Paris, 109 Harv. L. Rev. 458, 486 (1995).CrossRefGoogle Scholar

2. Annesley v. Anglesea, 17 How. St. Trials 1139, at 1248f. (1743)Google Scholar, cited in Luban, David, Lawyers and Justice 5 (1988).Google Scholar

3. The indeterminacy of description has been widely noted in several contexts. For example, Feinberg, Joel, Doing and Deserving 134 (1970)Google Scholar, notes the “accordion effect” in describing actions and causes; Lyons, David, Forms and Limits of Utilitarianism (1965), ch. 2Google Scholar, discusses the problem it raises for utilitarian generalization.

4. MacIntyre, Alasdair, After Virtue 192 (1981).Google Scholar

5. For an event to be an action, the agent must intend to do some action, under some description, but need not intend to bring about the event described. Here I follow Davidson, Donald, Essays on Actions and Events 46 (1980).Google Scholar

6. MacIntyre, , supra note 4, at 192.Google Scholar

7. Id. at 201.

8. Geertz, Clifford, Local Knowledge: Further Essays in Interpretive Anthropology 25 (1983).Google Scholar

9. Rawls, John, Two Concepts of Rules, 64 Phil. Rev. 3–22 (1955).CrossRefGoogle Scholar

10. Id. at 25 (Rawls's emphasis).

11. Id. at 25 (footnote omitted). I believe that this early account of rules of practices is important to understanding Rawls's later stance toward the general and the particular in Political philosophy as shown in his development of the concepts of principles, the basic structure of society as subject, constitutionalism, and the rule of law.

12. Id. at 32.

13. Id.

14. Id. at 27.

15. Id. at 28.

16. Searle, John R., Speech Acts: An Essay in the Philosophy of Language 33–42, 50–53 (1969)Google Scholar [hereinafter SA]; The Construction of Social Reality (1995) [hereinafter CSR].Google Scholar

17. Searle, , SA, supra note 16, at 34.Google Scholar Searle is quite clear that his constitutive rules typically regulate as well; he means to distinguish those rules that also constitute from those that only regulate. A number of readers appear to have misread him: see Warnock, G.J., The Object of Morality 37f. (1971)Google Scholar; Raz, Joseph, Practical Reason and Norms 108–11 (1990) (1975)Google Scholar; and Schauer, Frederick, Playing by the Rules 6f. (1991).Google Scholar

18. Searle, , SA, supra note 16, at 35.Google Scholar

19. Id. at 51f. Searle does not deny that a brute fact description of what happens in a ceremony, game, or trial can be given; he denies that such descriptions would be adequate. Raz's criticism of Searle here misses this.

20. Id. at 38; J. L. Austin, How to Do Things with Words (Urmson, J.O. & Sbisà, Marina eds., 1975) (1962).Google Scholar

21. Searle, , CSR, supra note 16, at 45.Google Scholar

22. Id. at 117.

23. Id. at 96.

24. Id. at 118.

25. Searle, , SA, supra note 16, at 189.Google Scholar

26. See Searle, , CSR, supra note 16, at 7–13Google Scholar, for the distinction between epistemic objectivity and ontological objectivity. Pieces of paper are not intrinsically money; they are money because people count them as money, so the existence of money depends on the subjective judgments of people; hence, money is ontologically subjective. But with those subjective judgments in place, whether or not a certain piece of paper is money is true independent of any one person's thinking it so, and so is epistemically objective.

27. Searle, , SA, supra note 16, at 198.Google Scholar

28. See, e.g., Fried, Charles, Contract as Promise (1981).Google Scholar

29. Rawls, John, A Theory of Justice 344 (1971), and note there citing Searle.Google Scholar

30. See Rules of the Game, Permissible Harms, and the Principle of Fair Play, in Wise Choices: Games, Decisions, and Negotiations 301–23Google Scholar (Zeckhauser, Richard J. et al. eds., 1996).Google Scholar

31. But see Scanlon, Thomas, Promises and Practices, 19 Phil. & Pub. Aff. 199–226 (1990)Google Scholar, for the view that the moral wrong involved in breaking a promise does not depend on the existence of a social practice of promising.

32. Hobbes, Thomas, Leviathan (1651), ch. XVI.Google Scholar

33. Nearly, but not completely out of their sockets—the procedure was governed by rules. Machiavelli, who was subjected to six applications of the Florentine strappado, implies in his prison sonnets that victims could protest if hoisted too high. See de Grazia, Sebastian, Machiavelli in Hell 34–40, 392 (1989).Google Scholar I am grateful to an anonymous reader for the reference.

34. For an elaboration, see Arthur Isak Applbaum, Doctor, Schmoctor: Practice Positivism and Its Complications, in The American Medical Ethics Revolution (Robert Baker et al. eds., forthcoming).

35. Rawls considers the status of such an excuse when invoked by an individual promisor. See Rawls, , supra note 9, at 17.Google Scholar

36. Id. at 28; see Rawls, , supra note 15.Google Scholar

37. More precisely, deception aimed at bending another's will is presumptively wrong. One may induce false beliefs in art, amusement, or play in ways that do not influence the will, and so that either do not count as deception or do not count as presumptively wrong deception. But lawyerly deception aims at the will.

38. See Applbaum, Arthur Isak, Knowledge and Negotiation: Learning Under Conflict, Bargaining Under Uncertainty (1988), unpublished Ph.D. dissertation, Harvard University (on file with author).Google Scholar

39. Some astute readers have commented that, though the argument against redescription works well for many dubious lawyerly practices (humiliating a truthful witness, pursuing an unjust suit, or driving up the costs of litigation), lying and deception are bad examples of the general point because those because those practices are flatly prohibited by the constitutive rules of lawyering. ABA Model Rule 8.4(c) reads: “It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation,” and there are numerous specific instances of prohibited deception. My response is that when the Model Rules get specific, they reveal that the “dishonesty,” “fraud,” “deceit” or “misrepresentation” that is prohibited has already been redescribed. False statements about only material fact and law are prohibited, so lies about most opinions, evaluations, and future intentions do not count. Indeed, the Comment to Model Rule 4.1 is explicit in its redescription of lying: “Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact. Estimates of price or value placed on the subject of a transaction and a party's intentions as to an acceptable settlement of a claim are in this category.” (Why then, we might ask, does anyone waste breath making such statements?) Lawyers are prohibited from offering evidence they know to be false, but may offer evidence they reasonably believe is false (3.3). (“Que scay-je?” asks Montaigne. What do I know?) Lawyers have a duty to disclose material facts to third parties when necessary to avoid assisting a criminal or fraudulent act by a client (4.1 (b)), but only when disclosure is not prohibited by the confidentiality rule (1.6). Since the relevant clause of the confidentiality rule permits disclosure only to prevent a crime that will cause imminent death or substantial bodily harm, a lawyer whose silence allows financial fraud apparently must keep silent. “Fraud” is prohibited by both positive legal ethics and tort law, but fraud is itself an institutionally defined concept in law that does not count all lies and deceptions. In the Model Rules, fraud is defined to exclude “failure to apprise another of relevant information.” Thus, positive legal ethics does not prohibit what ordinary morality counts as dishonesty. Rather, it takes a more circumscribed set of actions and relabels it “dishonesty.” So, though lawyers are not Liars®, they might still be liars.