A Lutheran Perspective on Teaching Legal Ethics


[1] I have a confession to make.  For the past decade, I have been teaching Lutheran ethics to the students of George Washington University Law School.  This confession will come as something of a surprise to my students and colleagues.  GW is not, after all, a religiously affiliated law school, much less a Lutheran one; and the course in question is supposed to be the school's standard, two-credit class in professional responsibility.

[2] Of course, in the twenty-odd times that I have taught the course, no seems to have objected to, or perhaps even noticed, this religious character.  One might sensibly regard the gap between my confession and others' perception as a mark of failure, either of the teacher or the theological ethics being taught. While I can't comment on the former, the latter would certainly ring true as one of the modern critiques of Lutheran ethics.  Largely following Ernst Troeltsch, many have claimed that the Lutheran distinctions between grace and law, or the kingdom of God and the kingdom of this world, produce in believers a kind of ethical quietism which ultimately baptizes the status quo, rendering silent the Christian witness, or worse, enlisting the gospel in support of unjust systems.FN2744

[3] In these pages, I offer an account of my teaching of Lutheran ethics through the professional responsibility course, and hope to show that this teaching is faithful to the profession for which my students prepare, to the academic community in which I serve, and also to the community and tradition of faith in which I believe.  This account starts with a brief description of the core components of a Lutheran ethics, then unpacks the significance of each of those components for the teaching of legal ethics.

A. Core components of Lutheran theological ethics
1. Justification by faith

[4] At the heart of Lutheran ethics stands the doctrine of justification by faith, as expressed in the Augsburg Confession:

[W]e cannot obtain forgiveness of sin and righteousness before God through our merit, work, or satisfactions, but . . . we receive forgiveness of sin and become righteous before God out of grace for Christ¡¦s sake through faith when we believe that Christ has suffered for us and that for his sake our sin is forgiven and righteousness and eternal life are given to us. FN2745

[5] Implicit in this understanding of justification, of course, is a claim about the human predicament east of Eden.  We are all sinners, alienated from God, from each other, and from all creation.  We deny God, and instead worship the gods of our own desiring: ourselves, our possessions, and our ideals.  This distorted worship leaves us empty and perpetually grasping for more, as the objects of our desire cannot bear the weight we place on them.  Indeed, no human effort or creation, whether fame, riches, or a saintly life, can achieve for us reconciliation with God.

[6] Such reconciliation comes only through Christ, who on the cross took upon himself the full weight of human alienation, experienced death, which is the final result of that alienation, and yet was raised again to new life.  Through faith, we are joined with Christ in his death and resurrection, death to our sinful, grasping selves, followed by God's merciful resurrection of us into a new being in Christ.  For Luther, our experience of dying and rising with Christ is a daily feature of the Christian's life, reflecting the believer's ongoing struggle with sin and continual memory of the grace poured out on her in baptism.3

2. The two uses of law.

[7] My description of justification by faith omits one essential part of the theological dynamic: the role of law.  For Luther, the grace of God's merciful act in Christ is always preceded, temporally and existentially, by the law that confronts sinners in their alienation.  This confrontation reflects the two uses of law.  In its theological use (principally the divine law preached in the church), law accuses and convicts sinners, making it possible for them to receive the word of the gospel.  In its civil use, the law, which is given shape and administered by civil governments, restrains the violence and chaos that sin invariably brings to human community, and achieves a measure of peace and justice.

[8] Understood in this way, the two uses of law relate closely to the other aspects of what is sometimes called Lutheranism's "doctrine of the two" -- the two kinds of righteousness, the two kinds of government (or two kingdoms, as it is better, though less accurately, known).  The two kinds of righteousness, passive and active, correspond to the two uses of the law.  The theological use of the law prepares the sinner to be made righteous before God, but not by the sinner's own achievement.  This righteousness is entirely passive, a gift of a restored relationship in Christ, created solely through God's mercy.  The civil use of law corresponds to the second kind of righteousness -- just relations with other people -- and this kind is a proper aim and achievement of human efforts.

[9] The concept of two kinds of government likewise relates to the two uses of law.  Spiritual government rules through the preaching of law and gospel, temporal authority rules through the sword.   Insofar as they live in Christ, Christians are ruled by the former; all the world comes under the rule of the latter.  Despite differences between the two kinds of government, the two are united at the deepest level because each is the gift of, and expresses the will of, the one God.

[10] The theological use of law, passive righteousness, and spiritual government, are distinct because they relate to our ultimate destiny in Christ, the gift of God's "special grace." The civil use of law, active righteousness, and temporal government nevertheless remain important gifts of God, manifestations of God's "common" or "general" grace. In a world filled with sin, temporal authority reflects the Creator's ongoing work to make possible humane life.  The Creator provides us with structures, including the law and institutions that give shape to our life in human community.  Luther often refers to these structures as "orders of creation," and although they are not instruments of our redemption, they are places in which the Creator works to create and sustain human life.

[11] While ordained by God, these institutions are also infected by human sin and often bring chaos, violence, and oppression rather than order, peace, and justice.  Such misuses, however, do not destroy the original dignity and purpose of the institutions.  Hidden deeply beneath even the most corrupt or repressive human government is the divine ordination of that institution, and such governments should be recalled to their foundational commission.

3. Vocation.

[12] Luther's understanding of vocation extends the basic ideas underlying the doctrines of justification and the two uses of the law.  With respect to the doctrine of justification, Luther's concept of vocation functions primarily in the negative: in contrast to medieval Catholicism, Luther rejected the idea that religious vocations were a higher form of Christian life than the work of the laity.  Luther's theology levels all human callings.  None brings its occupant any closer to God; none has any redemptive significance.  Those who choose religious vocations in the hopes of gaining spiritual merit have fallen into the sin of seeking to achieve their own salvation, rather than relying on the mercy of God in Christ.

[13] As a direct response to the then-prevailing view of religious vocations, Luther turned to his own (perhaps idiosyncratic) reading of 1 Corinthians 7:20. "Let everyone remain in the calling inwhich he was called."4 Beruf here signifies the ordinary occupations and tasks of human life in community.  Mothers and fathers, teachers, farmers, laborers, police officers, and the untold number of other places in which people work: these are the callings in which believers are called to new life in Christ.  This new life neither requires nor even invites believers to abandon their worldly tasks.  Instead God calls each to return to his or her labor.

[14] Luther's emphasis on the divine summons back to work certainly has a negative aspect-- that is, believers need not leave the world behind in order to receive the full measure of God's mercy -- but the positive aspect is just as important.  Although works are not a condition of receiving God's grace, Luther insisted that true faith invariably produces fruit in the form of good works.  Such works are not directed at God, but consist in loving service to neighbors.  Vocations give concrete shape to the love of neighbors, providing a context in which believers can perform this "divine service" of good works.

[15] The phrase "divine service" contains an intentional double-meaning.  Service in vocation is the Christian's obedience to God, who enjoins us to use our work in love toward our neighbors.  But vocational service, for Luther, is simultaneously the work of God -- service that is properly attributed to God even though performed by a human agent.  In his commentary on Psalm 147, Luther writes:

What else is all our work to God ¡V whether in the fields, in the garden, in the city, in the house, in war, or in government ¡V but just such a . . .  performance, by which He wants to give His gifts in the fields, at home, and everywhere else?  These are the masks of God, behind which He wants to remain concealed and do all things. . . . He could give children without using men and women.  But He does no want to do this.  Instead, He joins man and woman so that it appears to be the work of man and woman, and yet He does it under the cover of such masks. . . . God gives all good gifts; but you must lend a hand and take the bull by the horns; that is, you must work and thus give God good cause and a mask.6

[16] Our work in vocation, then, is part of the Creator¡¦s ongoing creation and preservation of human life.  Note here that this ¡§divine¡¨ status of the work does not in any way depend on the worker¡¦s own religious confession; the status inheres in the functions and tasks themselves.

[17] Like the orders of creation, these vocations are capable of being -- indeed are continually being --distorted by human sin.  Those who serve as the masks frequently seek their own advantage rather than serving their neighbors' welfare.  Luther's response to such abuse is one with which we are certainly familiar: misuse of a position does not destroy the legitimacy of the office itself; it reflects only the infidelity of the current holder of the office.FN2750    Luther found even more troubling, yet equally widespread, a different kind of distortion.  People, he claimed, have a perpetual tendency to confuse the mask with the one hidden behind it.  In short, we too often worship the mask rather than the God who uses the mask to preserve and provide for us.   Such masks are never more (or less) than instruments through which our neighbors may be served.8

[18] A final note about Luther's understanding of vocation: all people, whether believers or not, serve in vocations.  But vocations have two points of special significance for believers.  First, because believers understand God's proper role acting through the masks, their appreciation for God's "common grace," poured out on all creation, provides now even greater reason for giving thanks.  Second, believers know that service to neighbors in vocation is the sole ground and justification for their service in vocation, but they also learn that vocations serve as places for "the mortification of the flesh," in which our constant desire for honor, security, or wealth run up against the humiliation, frustration, and thankless character of so much of our work.  We wish to make more of our work than it is: an instrument by and in which we serve others.

4. The Golden Rule and the Shape of Christian Life.

[19] Thus far, my discussion of Lutheran ethics has focused primarily on form -- civil law, the orders of creation, vocation -- rather than on the substance or content of Christian moral life.  This is, at least in part, a reflection of Luther¡¦s own emphasis on theological rather than moral reformation, and especially on recovery of the doctrine of justification.  Luther certainly believed that this theological reformation carried ethical significance, but he tended to describe that significance in a way that seems, at first glance, to provide only the most general moral guidance.  For Luther, the chief precept of the Christian moral life is also the chief precept of the natural law: the Golden Rule. "Do unto others as you would have others do unto you.FN2752 "

[20] In a recent essay, Antti Raunio has captured the profound theological significance of Luther¡¦s use of the Golden Rule.FN2753   Rather than looking at the Golden Rule as an endorsement of human self-interested rationality (i.e., we help others because we want them to help us), Raunio shows how Luther situated the Golden Rule within the broad sweep of God's self-giving love for all creation.  Creation, Raunio writes,"is an 'order of love' because God himself continuously gives his good through creatures.FN2754"   Whether in the form of natural goods -- animals or plants -- or as human institutions, Luther finds in creation a consistent witness to the Creator¡¦s overwhelming generosity.  The archetype of this generosity, for believers, is Christ, who gives up his life for the salvation of the world.

[21] In Christ, those who believe are conformed to his image, summoned to "do unto others," as Christ has done unto (or for) them.  This conformity calls believers to put themselves imaginatively in the place of the neighbor, in order to discover what the other needs, and then strive to meet that need.  Moreover, the rule enjoins love not only of those who are ¡§in some way useful for the lover, . . . [but even] those who are the most difficult and unappealing.FN2755 "   This is especially true for the most vulnerable, who may have the greatest need, but are the least"useful for the lover." Again, the example of Christ is determinative.  As Christ sought out those most in need, and sought nothing from them in return, so we are called to do the same.

[22] Participation in this cycle of divine love -- receiving God's gifts and then sharing them with others -- is, Luther claimed, the order of all creation, not just the special mark of Christian life.  The blessings of God's common grace are poured out for all.  The vocations and orders that distribute the divine blessings are also shared and exercised by all people. Indeed, Luther believed that the Golden Rule itself is understood by everyone.  All people can recognize how much they enjoy receiving benefits.  And each can also be invited to experience the moral exchange (perhaps sympathy is a better description) at the heart of the Golden Rule, an exchange that usually begins with the question: "How would you feel if someone. . . ."

B. Teaching legal ethics from a Lutheran perspective

[23] From its stark confession of human violence and alienation to its words of thanksgiving for God's common blessing for all creation, and, especially, God's special mercy in Christ, Lutheran ethics is a theology-soaked enterprise.  Thus, the question I raised at the outset surely must remain: what can this religious confession have to offer students in a secular class at a secular law school?  In what follows, I try to describe the influence that the four components of Lutheran ethics have on my teaching and understanding of legal ethics.

1. Justification

[24] The Lutheran understanding of justification may seem like the least likely point of contact with secular professional responsibility, but it turns out to raise interesting implications for the subject.  As a preface to this component, and my discussion of the other components of Lutheran ethics, I want to make clear that I do not address or raise specifically"religious" issues in my class (claims of salvation or ultimate commitments) and so the terms in which I previously described Lutheran ethics do not appear in my class.  I make no secret, however, of my own religious confession, and have enjoyed many fine conversations with students and colleagues who took my openness about faith as an invitation to discuss their own commitments or wrestlings.

[25] Rather than approaching the doctrine of justification from a positive assertion -- by grace alone, through faith in Christ -- I draw on the necessary implication of that assertion: our work may be important, but it is not redemptive.  Work will not fulfill the expectations we tend to place on it, our hopes for a sense of meaning, purpose, and identity.  In my experience, most law students' frustration in the early years of their career (and the frustration of many more senior attorneys with whom I am regularly in conversation) arises not from too low an appreciation for their work, but rather from unrealistic expectations about the satisfactions work can produce.  Between friends from law school and former students, I have now seen fifteen years worth of lawyers heading into practice.  Although there are certainly exceptions to this observation, I have watched these friends and students build up hopes for the first or next job, the summer position that will show they're at the top of the second-year class, and lead to a lucrative job on graduation; the prestigious clerkship that will rank them with the best graduates in the country; the more exciting associate's position; the elusive partnership (and, if she proves successful as a rainmaker, the next law firm that will more appropriately reward her contribution).  Of course, there is nothing wrong with planning for the future, nothing wrong with looking for a more interesting place to work.  But the pattern of this "mobility" demonstrates more than just a dynamic job market for legal talent.  It shows a kind or restlessness or discontent, where one is always looking for the next opportunity.

[26] Some may interpret this mobility as lawyers' diminishing sense of loyalty to particular firms, to which others respond by citing firms¡¦ equally diminished sense of loyalty to their lawyers, whether associates or partners.  I assume that elements of both, along with complicated aspects of modern markets for professional services, are involved.  But I also think that part of this restlessness can be explained by lawyers' high expectations for their work, which manifest a kind of identity between the person and the professional role.  The role -- and the attendant status of that role in their community -- defines the person who holds it.

[27] To prompt students's discussion of these ideas, I frequently assign Kazuo Ishiguro's novel The Remains of the Day, a wonderful tale about a butler, Stevens.13    The story depicts Stevens' life in service to a Lord of dubious character, a life that involved complete immersion in his professional role and the attendant extirpation of most marks of common humanity, such as his apparent disinterest at the death of his father.  Others have profitably used this work in teaching ethics, and it does serve as a useful vehicle for challenging students to address and critique the idea of a distinct "role morality," a specialized ethics for an office that is inconsistent with ordinary human obligations.

[28] I draw from The Remains of the Day a somewhat different insight: the moral importance of a degree of detachment from one's professional role.  One's job may be important -- and my discussion of vocation, below, will highlight that importance -- but those whose identity becomes wholly entangled with their work often pay significant costs for that entanglement.  Those costs can be described in three ways.  First, in the narrowest sense, those who stake their identity on professional success may be devastated when such success does not come or fades away after it seemed to be in hand.  Anyone who has taught law students in the second semester of first year can recognize the disillusionment of the half of the class that now finds itself in the bottom half for the first time.  This reflects more than mere disappointment at not getting better grades; with an eye toward big firm jobs and prestigious clerkships, many students feel that their desired future has now been closed.  And of those who do succeed at this early stage, more will experience that despair when not retained as associates or passed over for partnership.

[29] Second, complete identification of self with professional role can also diminish or foreclose the possibility of a richer human life, including time for family and friendships, recreation and rest, and, yes, worship.  We struggle with this identification because it has become the professional norm in the culture of many law firms.  A culture that expects twenty-four hundred billable hours each year (and, in some cases, even more), in fact requires lawyers actually to work more than sixty hours a week, which leaves very little time for any life outside the firm.

[30] Third, and most important, complete identity of oneself with one's work can make it very difficult to say "no" to improper requests.  We can acknowledge any lawyer's concern about the economic consequences of refusing certain work -- loss of a client, perhaps even loss of one's position in a firm -- but for those whose role constitutes their identity, such concerns may never even arise, because he or she fails to recognize the need to refuse such tasks.  A healthy detachment from one's role may provide, or at least open the possibility of developing, the resources necessary to recognize and withstand the pressures to perform impermissible acts.

2. The Two Uses of Law

[31] As with the doctrine of justification, I do not explore with my students the theological richness of Luther's understanding of law as a divine blessing, but my approach to legal ethics retains important traces of that richness.  These traces can best be understood as different implications of an attitude of moral respect for law and legal institutions.

[32] One implication is jurisprudential, which then leads into certain moral claims.  In contrast to a legal realist perspective or any of the various "Crit" approaches, which advance an exclusively instrumental understanding of law, I try to expose students to arguments for law¡¦s integrity and intrinsic value.FN2757    Students (at least at our school) seem especially attracted to legal theories that portray law as an infinitely malleable tool of human interests, and of legal institutions as the places in which that manipulation plays out.  Part of my response -- in ethics as well as the other subjects I teach -- involves challenging students' affection for law's indeterminacy, showing them that there really are "better" and "worse" arguments, with evaluation based on something other than unreflective taste or bias, and with a recognition that we can sensibly say, at times, that a judicial or administrative decision was wrong or right.

[33] That jurisprudential approach leads to my central normative claim in the ethics course: lawyers have a prima facie moral obligation to obey, and counsel obedience to, the law.15    The obligation, as Thomas Morgan and I have argued, arises out of law's origin in fundamentally just democratic institutions, coupled with the lawyer¡¦s special privilege to represent clients in legal fora, and the lawyer's oath to uphold the law.

[34] As I understand it, this moral obligation tracks Luther's approach to law in several important ways.  Perhaps most importantly, the law stands as an important check on our temptations to enrich ourselves or aggrandize our power at others' expense.  These temptations are present even when (and perhaps especially when) we are most convinced that what we are doing deserve a special exception because of the good that will result or our distinctive need.  We can be quite proficient in rationalizing disobedience, whether for ourselves or our clients, particularly when we think of law as no more than a manipulable tool for the realization of individual interests or desires.

[35] In addition, I try to show students how the law as enacted, in many instances, represents the culmination of an ongoing tradition of moral reflection and judgment.  For example, the ABA's Model Rules of Professional Conduct are regularly disdained by law students (and even academic commentators) who perceive in them some taint of the bar's self-interest or self-protection.  While some rules at some times may justly deserve such accusations, the standards as a whole embody moral and legal principles that bear up well under ethically sophisticated scrutiny.

[36] Finally, in a concept to which I will return before, the law defines the normal scope and context for the lawyer's agency relationship with clients.  It is, in an important sense, the world in which the lawyer works.  Rather than viewing the law primarily as an instrument for manipulation to serve the client's interests, the lawyer sees herself as one who mediates between the client and the law, helping to shape the client's interests and needs in light of the opportunities and protections afforded by law.

[37] This attitude of respect does not require or encourage an uncritical attitude toward the law or its various modes of implementation.  A prima face moral obligation means just that: a good faith interpretation of law¡¦s requirement deserves considerable weight among one¡¦s reasons for acting, and one should be especially skeptical of incentives to violate the law, but the obligation is not absolute.  Disobedience, at times, may be morally warranted.  But such disobedience still can and should reflect respect for law by being transparent in the act of disobedience, and willing to accept the law¡¦s punishment for its violation.

3. Vocation

[38] The Lutheran account of vocation, unlike the doctrines of justification or the two uses of law, seems to have obvious links with secular professional responsibility.  My understanding of those links, however, is somewhat different than that of several others who have explored the intersection of faith and lawyering.FN2759   A full account of our differences is beyond the scope of this essay, but one observation is important here.  Even with Luther's view of callings as "masks of God," the notion of one's vocation -- or one's clients -- as "sacred" poses too great a risk that we might see work as redemptive.  This is especially true when such an understanding is designed specifically to improve lawyers' sense of personal fulfillment in their work.

[39] In my course on professional responsibility, I draw three general insights from the Lutheran account of vocation.

a. Vocation as a useful craft

[40] As I described above, the Lutheran approach to vocation focuses primarily on each role's usefulness in serving the neighbor.  This usefulness, in turn, depends on competent performance of therole's tasks.  Vocation may carry deeper resonances, but none is more important than a claim about possession and mastery of the knowledge and the core set of skillsof rhetoric and practical judgment that define excellence within the lawyer's profession.  To fulfill the vocation, then, one must acquire and practice these marks of the profession, and provide mutual encouragement and critique of others in their performance of the office.  This notion of vocation as service useful to the neighbor also rules out a number of obvious abuses of the role: carelessness in performing one¡¦s work; undertaking work that damages one¡¦s own efforts for the client; or stealing from the client (which includes over-billing in all its manifold forms).

[41] Reflection on vocation as useful service may also touch those who do not experience their current work as useful to anyone, whether because of the typical cycles of demand in a firm, or a broader concern about the type of practice in which one may be involved.  My short answer is similar to the one Luther gave to such questions: "Just look around; there's always plenty of need." For those who cannot make broader commitments, most bar associations regularly schedule pro bono opportunities open even to lawyers who may not have their firm¡¦s permission to take on additional (non-paying) clients.  Bar associations also offer training sessions for those who may be interested in exploring different kinds of pro bono work.  Indeed, these may even lead into new areas of practice for those in search of their neighbors' needs.

b. Vocation as agency

[42] Lawyers have a distinct kind of vocation, one in which the lawyer is called to "re-present" the client within the legal world.17    Although the hyphenated "re-present" may be unusual, it captures an interesting dynamic in the lawyer's vocational service.  One aspect of this dynamic is fairly easy to understand: the lawyer bears the client¡¦s name and purposes into the legal realm, making the client present in a wide range of transactions and fora.

[43] Other facets of this re-presentation are less obvious but no less important.  As part of the mediating role I described above, the lawyer presents the legal world to the client, helping the client to understand the law's opportunities and constraints.  The lawyer also presents the broader world, legal and otherwise, to the client, helping the client to understand how others may perceive and react to her actions.  Finally, the lawyer presents the client to herself, holding a figurative mirror up to the client, understanding the effect of various choices on the client¡¦s other commitments or values.

[44] Successful practice of re-presentation depends on ethical commitments that comprise some of the most basic features of a legal ethics course.  As a dialogic practice, re-presentation rests heavily on the norms that structure and protect the lawyer-client conversation.  Foremost among those norms is a commitment to confidentiality, which provides lawyer and client with the space in which to work out the details of the person that will be presented to the public.  The principle of informed consent is equally important: the lawyer's moral authority to speak and act on behalf of the client depends on the lawyer's fidelity to the client¡¦s considered judgments, which the lawyer helps to shape by presenting the client with relevant legal (and other) considerations.

c. One vocation among others

[46] In sharpest contrast to any elitist understanding, the Lutheran account of vocation envisions a world filled with callings.  Everyone has at least one, and many have multiple vocations.  A lawyer may have her professional vocation, and she is simultaneously called to be mother, daughter, wife, sister; beyond those roles she may also serve as board member for a community organization and Sunday School teacher.  Each calling has its distinctive responsibilities, its own opportunities for useful service to neighbors, and its own claim to respect as a part of a full human life.

[47] This recognition of vocation¡¦s universality bears fruit in the most important practical contribution of Lutheran ethics for my understanding and teaching of legal ethics.  Just as the lawyer bears her vocation in representing her client, the client also comes to the lawyer as a bearer of his own callings.  Too much of our academic and professional reflection on legal ethics tacitly assumes that clients come to lawyers as autonomous actors.  In fact, however, clients frequently hold positions that are legally or morally constitutive of their identity.  The lawyer who ignores her client's role -- or permits the client to ignore his role -- courts legal disaster for herself and her client. The lawyer who represents a trustee provides the most obvious example.  Although the trustee may be the lawyer¡¦s formal client, the client¡¦s acts with respect to the trust property and trust beneficiaries are circumscribed by the powers and duties set forth in the trust document and background law.  The same is true of any clients who serve as fiduciaries, whether the officers and directors of a public corporation, a mid-level government bureaucrat, or a son who cares for his aged parents.  In each instance, the lawyer must understand fully, and help the client to appreciate, the shape that the client's constitutive vocation gives to the lawyer's representation.

4. The Golden Rule and the shape of the lawyer's life

[48] In the first part of this essay, I described Luther's understanding of the Golden Rule as the shape of the believer's life in Christ.  We receive many blessings from God, give thanks, and then turn toward our neighbors in love, sharing with them what God has provided.  The distinctive mark of this life is the believer's trust in God's plenitude.  That trust contrasts sharply with sin's fear of scarcity, a fear that impels us always to grasp formore -- wealth, fame, goods, or security -- never resting in the faith that what we have, and will be provided, is enough.

[49] For many, both inside and outside the law, the legal profession seems the chief example of a world built on scarcity.  In our own practice, we grab, and even require others to grab, what we can as fast as we can: hours, clients, and fees for ourselves; along with whatever our clients happen to want.  The law itself seems to depend on a fear of scarcity, with each clash reflecting a competition for finite resources as mercenary lawyers abet their grasping clients.  While this description may be appealing to those who are hostile to lawyers, and it certainly bears some elements of truth, the description is hardly an accurate portrayal of most lawyers' work, and it is certainly not a necessary feature of legal practice.

[50] Many aspects of our work bear at least a tentative witness to the hope of plenitude reflected in Luther's account of the Golden Rule.  Consider the lawyer's basic skill of formulating her opponent's strongest argument in order to prepare her own case.  While of undoubted tactical significance (no one likes to be surprised at oral argument), the exercise inevitably has a humanizing and chastening effect.  We often come to see the other in a fuller light, to see the strengths and perhaps even the justice of their cause, and the limitations of our own.  Such an exercise, then, is equally important for prompting the settlement of disputes as it is for litigating them.

[51] Lawyers employ a similar approach in counseling clients.  If for no other reason than to temper clients' expectations, lawyers routinely ask clients to imagine the dispute or transaction from the other side's perspective.  When done well, the practice can help to lessen a client's frequent antipathy for the other in litigation, and can at times engender a greater desire (or at least willingness) to reach a mutually satisfactory deal.

[52] While these are important contributions, it is no less important to avoid the illusion that our work is an uninterrupted story of saintly cooperation and generosity.  The practice of law can provide a glimpse of that, at times, but even when it falls short of that vision, the law remains our most important safeguard against scarcity's unfettered grasping.  The question for us, and for my students, is how we understand our own participation in that struggle over scarcity.  Through that assessment, we can better appreciate the attitude of respect for law as a defining mark of our profession.

[53] A market economy works by harnessing the power of human desire and self-interest in the creation of broader communal wealth.  "Harnessing" is, however, an achievement of law -- and a fragile one at that -- rather than the automatic process assumed by cruder economics.  Lawyers participate in the complex distribution of a market system's benefits insofar as they work to harness that power.  They do so primarily by assisting clients to abide by the rules crucial to the healthy functioning of the market: promoting the transparency and accountability of public corporations; monitoring agents' temptation to divert collective assets for their own benefit; protecting those who are most vulnerable to the market's processes.  But lawyers also can, and often have, helped clients in ways that injure that same system: hiding transactions from public scrutiny; assisting clients who prey on those who are unable to protect themselves; insulating officials (and themselves) from accountability.  Although my focus has been on economic life, closely analogous demands apply to lawyers who work in or with public agencies.  The choice is stark, but important to place in front of those in, or preparing for, this vocation: will you serve the cause of plenty or that of scarcity?


[54] Taken together, the four components of Lutheran ethics; justification by faith, the two uses of law, vocation, and the Golden Rule, offer what I believe is a compelling account of a life in trust, gratitude, and service.  I hope my students in professional responsibility catch some glimpse of this vision.  Whether or not that glimpse comes out of a shared (or any) religious confession, I believe the glimpse can show some of the possibilities for a humane practice of law: one that neither expects too much or asks too little of the practice; one that acknowledges the humanity of clients and non-clients alike; one that participates in the plenty that God provides.


End Notes

[1] For a general introduction to Luther's social teachings, see William H. Lazareth, Christians in Society: Luther, the Bible, and Social Ethics (Minneapolis 2001) (see especially chapter 1 for his discussion of various critiques of Lutheran ethics).

[2] Article IV, The Augsburg Confession - German Text, The Book of Concord: The Confessions of the Evangelical Lutheran Church, ed. Robert Kolb and Timothy J. Wengert, trans. Charles Arand, et. al. (2000), at 38-40.

[3] Luther's 1535 Commentary on Galatians offers what many believe is the reformer's best-developed account of his understanding of justification. 26 Luther's Works 4, trans. J. Pelikan, ed. J. Pelikan and W. Hansen (St. Louis, 1963). For accessible analysis of Luther's teaching on justification, see Mark D. Kravnik, Luther on Baptism, and Robert Kolb, Luther on the Two Kinds of Righteousness, both in Harvesting Martin Luther's Reflections on Theology, Ethics, and the Church, ed. Timothy J. Wengert (Grand Rapids, MI: 2004).

[4] My discussion here relies primarily on Karlfried Froehlich, Luther on Vocation, in Harvesting Martin Luther's Reflections on Theology, Ethics, and the Church. See also Robert Benne, Ordinary Saints: An Introduction to the Christian Life 2nd ed. (Minneapolis: 2003) (especially chapter 2, "Places of Responsibility," and chapter 8, "Work"). The classic text on Luther's understanding of vocation is Gustaf Wingren, Luther on Vocation, trans. Carl C. Rasmussen (Philadelphia: 1957).

[5] My discussion here relies primarily on Karlfried Froehlich, Luther on Vocation, in Harvesting Martin Luther's Reflections on Theology, Ethics, and the Church. See also Robert Benne, Ordinary Saints: An Introduction to the Christian Life 2nd ed. (Minneapolis: 2003) (especially chapter 2, "Places of Responsibility," and chapter 8, "Work"). The classic text on Luther's understanding of vocation is Gustaf Wingren, Luther on Vocation, trans. Carl C. Rasmussen (Philadelphia: 1957).

[6] Martin Luther, Commentary on Psalm 147, 14 Luther's Works 107, 114-15, trans. E. Sittler, ed. J. Pelikan and D. Poellot (St. Louis, 1958).

[7] See Luther, Whether Soldiers, Too, Can Be Saved, 46 Luther's Works 87, trans. Charles M. Jacobs, ed. Robert C. Schulz (Philadelphia: 1967) (see especially p.97 on the distinction between the person and the office).

[8] In his Commentary on Galatians (1535), Luther writes: "There must be masks or social positions; for God has given them, and they are His creatures. The point is that we are not to worship and adore them. The emphasis is not on the things themselves but on our use of them." 26 Luther's Works, at 95.

[9] See. e.g., Martin Luther, How Christians Should Regard Moses, 35 Luther's Works 155, trans. & ed. E. Theodore Bachmann, ed. Helmut T. Lehmann (Philadelphia: 1960) (especially pp. 164-168); Martin Luther, The Sermon on the Mount, 21 Luther's Works 1, ed. & trans. Jaroslav Pelikan (St. Louis: 1956); Martin Luther, Treatise on Good Works, 44 Luther's Works 15, trans. W.A. Lambert, ed. Helmut T. Lehmann (Philadelphia: 1966).

[10] Antti Raunio, Natural Law and Faith: The Forgotten Foundations of Ethics in Luther's Theology, in Union with Christ: The New Finnish Interpretation of Luther 96, eds. Carl Braaten & Robert Jenson (Grand Rapids, MI: 1998). I discuss Raunio's essay at length in Robert W. Tuttle, All You Need is Love: Paul Ramsey's Basic Christian Ethics and the Dilemma of Protestant Antilegalism, 18 J, Law & Relig. 427, 445-452 (2003).

[11] Raunio, 104.

[12] Raunio, 107.

[13] Kazuo Ishiguro, The Remains of the Day (New York: 1989). A number of others have used this book for teaching or thinking about legal ethics. See, e.g., Rob Atkinson, How the Butler Was Made to Do It: The Perverted Professionalism of The Remains of the Day, 8 St. Thomas L. Rev. 199 (1995).

[14] I have found Lon Fuller's work to be the most useful for this purpose. See Lon L. Fuller, The Morality of Law (New Haven: 1977).

[15] For a more detailed description and analysis of this claim, see Thomas D. Morgan and Robert W. Tuttle, Legal Representation in a Pluralist Society, 63 Geo. Wash. L. Rev. 984 (1995).

[16] I have in mind here primarily Joseph Allegretti, The Lawyer's Calling: Christian Faith and Legal Practice (1996).

[17] For a somewhat different use of "re-presentation," see Anthony V. Alfieri, Impoverished Practices, 81 Geo. L.J. 2567 (1993).

© June 2005
Journal of Lutheran Ethics
Volume 5, Issue 6