Luban is arguably one of the most brilliant and prolific legal ethicists writing today. Having earlier written pioneering works, drawing from sources as varied as Walter Benjamin, Talmudic texts, and Martin Luther King Jr., Luban returns to his central themes in this collection. Here Luban demonstrates many of his classic strengths: close textual reading and brilliant criticism from the vantage point of ethics and morality. The richness can only be touched upon.
In Chapter 1, “The Adversary System Excuse,” Luban returns to the critique of the role of lawyers as “hired guns” first taken up at length in his book Lawyers & Justice (1988). He cites Macaulay's question: “whether it be right that a man should, with a wig on his head … do for a guinea what … he would think it wicked … to do for an empire” (p. 9). Answering no and writing at a time when questions of the law are at the forefront of contemporary moral questions, Luban's self-conscious antinomies are perhaps best summed up in the title of his second chapter, “Lawyers as Upholders of Human Dignity (When They Aren't Busy Assaulting It).”
Luban is acutely aware that the universe of moral decisionmaking today involves primarily questions of “organizational evil,” in which moral responsibility is “subdivided” and therefore often eluded in its entirety (p. 7). The paradigmatic example of this in the twentieth century is the Holocaust. In fact, the example of the machinations of Nazi “legality” is taken up briefly in the chapter “The Torture Lawyers of Washington.” Luban argues that “we would have to go back to the darkest days of World War II, when Hitler's lawyers laid the legal groundwork for the murder of Soviet POWs and the forced disappearance of political suspects, to find comparably heartless use of legal technicalities …” (p. 163). Responding to claims by the “torture lawyers” of the Bush Administration—first made in secret—that the President, in his role as Commander of Chief, is effectively outside the law, Luban follows up on his widely read scholarly tour de force, “Liberalism, Torture, and the Ticking Bomb” (Reference Luban and GreenbergLuban 2006). He has a devastating analysis of the central role that former President George W. Bush's lawyers, notably John Yoo, played in paving the way for the Abu Ghraib torture scandal—in violation of the Geneva Conventions and the UN Convention Against Torture, both of them signed and ratified by the United States—and the subsequent passage of the Military Commissions Act (2006; sometimes referred to as the Torture Act).
In “The Ethics of Wrongful Obedience,” he examines the Milgram experiments. While rightly pointing toward the importance of the slippery-slope route toward destructive behavior—what Jonathan Reference GloverGlover in Humanity (1999) refers to as the “moral slide”—Luban lays great stress on the participants' need to justify previous shocks in inducing continued obedience. Luban ends here on a hopeful note, however, noting how individual acts of disobedience to unjust authority can have a galvanizing effect, encouraging others toward morally righteous action. He moves on to discuss the Stanford Prison Experiment and the questions of situational ethics it deals with, noting that it “seems to portray a world in which the idea of personal integrity seems absent—a Goffmanesque world where there are no selves, only selves-in-roles” (p. 281). Luban again lays stress on the degree to which actions are rationalized by actors, thereby ensuring continued amoral actions in a seemingly endless cycle. To deal with such dilemmas, he calls for greater conscientiousness and awareness of the dilemmas of organizational evil and the taking of great care in these situations, along with wariness about delegating moral responsibility to superiors.
Finally, Luban ponders the work of Tom Shaffer and that of Anthony Reference TrollopeTrollope'sOrley Farm [1862] (1981), replete with discussions of the many ironies of the law revealed here and in the Old Testament, most notably the fact that “every people's title to its land, traced back far enough, originates in conquest and bloodshed. This is the paradox of property: the law of property protects titles that invariably originated in crimes against the law of property” (p. 316).
These essays are surely not bedtime reading. Their degree of scholarly acuity, complexity, and intensity make them formidable works even for gifted scholars. And yet in their interrogation of the moral universe of the law and lawyers, at the cusp of the twenty-first century, they should be read by every sentient lawyer, scholar, student of the law, and citizen, for there is arguably no better guide to the reefs and shoals of law in the real world than Luban.
