1. This zeal is often noted in the literature. Here is a representative description from a standard code book: “As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system.” This is from the preamble of die American Bar Association Model Rules of Professional Conduct, in Morgan, Thomas D. and Rotunda, Ronald D., eds., 1985 Standards of Professional Responsibility (Mineola, NY: Foundation Press, 1985) at 69Google Scholar; similar statements can be found in later official documents.

2. See, e.g., the ABA Model Rules concerning advocacy, in Morgan and Rotunda and later editions.

3. This applies, in legal contexts, less to wrongful conduct than to proper action: Witness the mens rea condition on guilt. Morally, why we act is extremely important in both cases.

4. Craig M. Lawson maintains (in an unpublished paper) a tighter connection between advocacy and persuasion; nothing major in this paper turns on the looser connection I suggest here.

5. In one formulation (which follows the ABA Model Rules, Rule 1.2 (b)), there is “a principle of professional detachment under which a lawyer is not to be regarded as endorsing the client's political, economic, social, or moral views” (emphasis mine). See Wolfram, Charles, A Lawyer's Duty to Represent Clients, Repugnant or Otherwise, in Luban, David, ed., The Good Lawyer (Totowa, NJ: Rowman and Littlefield, 1984), at 215.Google Scholar An even more permissive (but not widely held) conception of the advocate's freedom is expressed in what has been called “the principle of nonaccountability,” namely, “When acting as an advocate for a client according to the Principle of Professionalism, a lawyer is neither legally, professionally, nor morally accountable for the means used or the ends achieved,” where the principle of professionalism is that, “When acting as an advocate, a lawyer must, within the established constraints upon professional behavior, maximize the likelihood that the client will prevail.” For relevant discussion, see Schwartz, Murray L., The Zeal of the Civil Advocate, in Luban at 150.Google Scholar

6. Lon Fuller has articulated a similar distinction, contrasting a morality of duly with one of aspiration. There are two main differences between the two contrasts: First, the duty standard seems higher than the rights standard, because, for example, we might have a duty sometimes to do something not strictly required (e.g., charitable acts), whereas we might have a right never to do this (a duty of beneficence would here coincide with a right not to be beneficent); second (and more important), we may reasonably aspire to meet standards such that to fall below them is disappointing but not, as in the case of violating a desirability principle, grounds for some degree of moral criticism.

7. The point that there arc things within one's rights that one ought not to do has been well argued by Thomson, Judith Jarvis in A Defense of Abortion, Philosophy and Public Affairs 1 (1971).Google Scholar

8. This is borne out in many of the standard codes. Although many express high ideals in their preambles, their main thrust is prohibitive.

9. In The Separation of Church and State and the Obligations of Citizenship, Philosophy and Public Affairs 18, 3 (1989)Google Scholar, I discuss both principles and consider some variants of each sort. This paragraph and the next few draw on (and extend) that article. I have developed the theory of that article further in Religious Commitment and Secular Reason: A Reply to Professor Weithman, Philosophy and Public Affairs 20, 1 (1991)Google Scholar and The Place of Religious Argument in a Free and Democratic Society, UNiversity of San Diego Law Review 30, 4 (1993).Google Scholar

10. The literature on the topic is vast. For a useful compendium of Supreme Court decisions up to the early 1960s, see Tussman, Joseph, ed., The Supreme Courton Church and State (Oxford, Oxford University Press, 1962)Google Scholar; and for more recent discussion see Pfeffer, Leo, Religion, State, and the Burger Court (Buffalo: Prometheus Books, 1984)Google Scholar, and Ackerman, David M., Church and State in the Supreme Court; the Non-Revolution of the '80s, Federal Bar News and Journal 33, 7 (1986)Google Scholar; and Rawls, John, Political Liberalism (New York: Columbia University Press, 1993).Google Scholar

11. Similar principles are argued by Nagel, Thomas in Equality and Partiality (Oxford and NewYork: Oxford University Press, 1991)Google Scholar and by Rawls, John in The Idea of Public ReasonGoogle Scholar, Lecture VI in his Political Liberalism (cited supra note 10), in which he explores the meaning and grounds of the idea that a liberal democracy is committed to giving a special place to public (hence secular) reason. But neither extends them, as I do, to govern motivating reasons as well. For a wide-ranging discussion of Rawls's general position and some of the important issues, see D'Agostino, Fred, Some Modes of Public Justification, Australasian Journal of Philosophy 69 (1991).CrossRefGoogle Scholar

12. It is not only Kantian ethics that supports the idea that the moral status of a concrete action partly depends on how it is grounded in the agent. Wien Aristotle describes how a virtuous agent behaves, he says (paraphrasing T. Irwin's translation) that the agent must know what he is doing, he must choose it for its own sake, and the act must spring from a firm and unchangeable character (Nicomachean Ethics 1105a30ff). The last two clauses each suggest that if a reason is to be a ground of the virtue of an action it must also bea motivating ground of that action; and it is a plausible extension of this view to say the same sort of thing regarding beliefs in relation to epistemic virtue. Advocacy of a view on a ground that does not move one, then, will not express the virtue(s) appropriate to that reason (assuming there are any). Cf. Hume, : “[W]hen we praise any actions, we regard only the motive that produced them, and consider the actions as signs or indications of certain principles in the mind and temper. The external performance has no merit. We must look within to find the moral quality” (A Treatise of Human Nature, ed. by Selby-Bigge, L. A. (Oxford, 1888), at 477).Google Scholar None of this implies that a non-motivating reason cannot justify the (abstract) type of action in question: The Kantian point is not that those who do not act from an appropriate motive do the wrong thing; it is (in part) that they may be doing the right thing for the wrong reason and hence without moral worth.

13. For arguments aimed at showing how having reasons is more truth-conducive when they also motivate than when they do not, see my The Causal Structure of Indirect Justification, Journal of Philosophy LXXX, 7 (1983).Google Scholar reprinted in my The Structure of Justification (Cambridge and New York: Cambridge University Press, 1993).Google Scholar

14. If one takes a reason to constitute only some evidence For a proposition, one will likely not believe, but only tend to believe, the proposition on die basis of it. When one takes the reason to be (evidentially) sufficient, one normally will believe on the basis of it. An advocate may, of course, present reasons as (or take them to be) individually insufficient but jointly sufficient for a position, or present a set of reasons as simply making a position, say, probable (in which case there is a prima facie obligation to advocate it as if it were established as true). Ideally, when we present one or more reasons for a position, our (cognitive) motivation to believe the position is proportional to our sense of the strength of the reason(s). This suggests a motivational proportionality principle parallel to the proportionality principle stated in relation to evidential weighting. Some such principle is plausible, but the notion of a motivating reason is complex and elusive, and I cannot here present and assess any specific formulation. I have explicated motivating reasons for belief in Belief, Reason, and Inference, Philosophical Topics XIV (1986)Google Scholar and motivating reasons for action in Acting for Reasons, Philosophical Review XCV (1986).Google Scholar

15. Both weaker principles of this sort and considerations bearing on the proper use of reasons in church-state issues are discussed in some detail in my The Separation of Church and State, cited supra note 9.

16. Nothing said here is meant to suggest that pro forma advocacy is not important, even beyond criminal cases. Some of the ways in which it is important, and a number of reasons for often assuming detachment by advocates, are brought out in Lawson, supra note 4.

17. One reason the tendency qualification is needed is that some roles (e.g., that of spouse) imply “perfect duties” of fidelity, and these may outweigh certain general moral obligations, such as those of beneficence.

18. Some similar issues arise in representing someone who, though competent, is irrational, at least on some significant relevant point. It may be possible to be irrational overall without being incompetent. For reasons to think irrationality is both different from incompetence and can also warrant overriding a consent or refusal, see Culver, Charles M. and Gert, Bernard, The Inadequacy of Incompetence, Milbank Quarterly 68 (1990).CrossRefGoogle ScholarPubMed

19. For valuable recent discussions, see Luban, , supra note 5.Google Scholar A well-known approach contrasting with mine is Freedman, Monroe's in Professional Responsibility of the Criminal Defense Lawyer. The Three Hardest Questions, Michigan Law Review 64 (1966).CrossRefGoogle Scholar

20. There is much to be said about which statements these are; certainly one should not let such testimony stand unchallenged if the result will be disastrous for innocent people. Where it can be left unchallenged, there are still prima facie restrictions implied by the motivation principle, particularly that one avoid citing the testimony as a reason if one does not think it supports the view in question or one is not moved by it toward that view.

21. The kind of distinction I am drawing and doubtless some of my reasons for using it as I do may go back at least 150 years to David Hoffman's A Course of Legal Study. For discussion of Hoffman's views, see Kalish, Stephen E., David Hoffman's Essay on Professional Deportment and the Current Legal Ethics Debate, Nebraska Law Review 61:54 (1982).Google Scholar For further considerations bearing on the desirability of negative defenses, see Subin, , The Criminal Lawyer's Differing Mission: Reflections on the “Right” to Present a False Defense, Georgetown Journal of Legal Ethics 1 (1987).Google Scholar For a more recent, highly pertinent essay that supports some of what I maintain in this section, see Simon, William H., The Ethics of Criminal Defense, Michigan Law Review 91:1703 (1993).CrossRefGoogle Scholar I would note, however, that what Simon calls “aggressive defense” is not necessarily the same as what I call positive defense, though it would often include that; the distinction between aggressive and non-aggressive defenses has more to do with what constraints are observed than with the evidential aim of the advocacy.

22. Evidence of this concern is apparent in the emphasis on legal ethics in many law schools, as well as in current literature—e.g., in Morgan, Thomas D. and Rotunda, Ronald D., Professional Responsibility, third ed. (Minneola, New York: The Foundation Press, 1984)Google Scholar; Shaffer, Thomas L., American Legal Ethics: Text, Readings, and Discussion Topics (New York: Matthew Bender, 1985)Google Scholar; Heymann, Philip B. and Liebman, Lance, The Social Responsibilities of Lawyers: Case Studies (Westbury, New York: The Foundation Press, 1988)Google Scholar; and Simon, , supra note 21.Google Scholar This ethical concern by teachers oflaw is not, however, new. See, e.g., Introduction to Law: Essays Reprinted from the Harvard Law Review (Cambridge, Massachusetts, 1968)Google Scholar; and Matthews, Robert E., Problems Illustrative of the Responsibilities of the Legal Profession (Austin: University of Texas Law School Foundation, 1970)Google Scholar, and his Education Towards Adjudicative Responsibility, Journal of Legal Education 26, 2 ( 1974).Google Scholar

23. A problematic case here would be that of unjust laws. This goes beyond my scope here, but surely a client's being prosecuted under an unjust law is a prima facie excuse for using persuasive reasons that do not convince one evidentially.

24. This is not to suggest that the advocacy system is self-evidently in the best interests of justice. I presuppose here that it is best, at least in a free society, but for critical discussion of it, see Luban, David, The Adversary System ExcuseGoogle Scholar and, for a more sympathetic treatment, Kutak, Robert J., The Adversary System and the Practice of LawGoogle Scholar, both in Luban, , supra note 5.Google Scholar Luban's views on this and related topics are further developed in Lawyers and Justice (Princeton: Princeton University Press, 1988) and in his reply to Simon, supra note 21, Are Criminal Defenders Different?, Michigan Law Review 91:1728 (1993).Google Scholar Both are agreed that, as Simon puts it, “Aggressive defense [which might not observe either the evidential or the motivation principle] is justified where it subverts punishment that, although formally prescribed, is unjustly harsh and discriminatory in terms of more general norms of the legal culture.” Both articles note a number of the cases in which I would regard as overridden the prima facie obligation my principles affirm, but as Simon in particular is at pains to show, there are many cases in which proper criminal defense does not require the aggressive lengths to which some would take it. Luban says, for example (in replying to Simon), “[M]y conclusion is that, if the standard is to be single, it should be the single standard of permitting aggressive defense in every case, rather than Simon's single standard of presuming that aggressive defense is improper except when the threats of overpunishment, racism, or assembly line justice are imminent.” It should be clear that there are aggressive ways to mount a negative defense—e.g., bringing extremely heavy pressure on prosecution witnesses. My view is largely neutral on how aggressive criminal defense should be, as opposed to how well evidenced and how sincere, particularly if delaying tactics that do not directly concern evidence or persuasion count as aggressive.

25. I have already quoted the principle of professionalism, which requires that advocates maximize the chance that their clients will prevail. This and similar statements of the obligation of zealous advocacy are in part what leads Lieberman, Jethro K. to say that “[t]he ethical system, as now constituted, teaches contempt for ethical behavior. That is because the formal system cannot overcome the hypocrisies that are built in, around, underneath, and above the public platitudes.” See his Crisis at the Bar (NewYork: W.W. Norton, 1978), at 208.Google Scholar I have by no means been suggesting any such verdict here; my principles are intended to contribute to realizing the spirit as well as the letter of some of the morally sound elements in the ABA Code and Moral Rules.