Writing about the Yoo-Delahunty memorandum I had occasion to think about co-blogger Brad Wendel’s criticism of the “torture memos” as an example of his theory of competence. I wound up deleting what I wrote about his theory, but it seemed worth posting here to see what people think of the argument. I think it is right, but I am open to persuasion that I am wrong.
I assert two points: No normative theory of lawyering can ground itself in what lawyers do because of the familiar point that an “ought” cannot be derived from an “is.” Any non-normative theory of mere competence has to be agnostic among methods of interpretation and thus is likely to have no real teeth except for arguments that, at any given point in time, are so widely recognized as loony that they are not made. Here is the argument:
1. The gist of Brad’s argument is that the law has a presumptive claim to our allegiance because it is an effective means of settling differences. Settlement is valuable because society cannot thrive if citizens endlessly argue and re-argue points; decisions have to be made and enforced. For lawyers to assist in evasion of the law is to undermine the settlement function. Advising and assisting clients in evasion can therefore be condemned as, in essence, anti-social behavior.
2. Brad recognizes that this theory has to incorporate a theory of interpretation. One cannot tell evasion from avoidance, or from a good-faith conclusion that a law does not apply, without knowing how laws are supposed to be read. He thinks the text of a rule often does not answer questions, particularly in “hard” cases. Thus, interpretation must aim at “recovering the spirit, purpose, or normative background underlying a set of textual rules, not merely the meaning that the textual expression of these norms might plausibly bear.” Toward this end, interpretation is dynamic and necessarily requires reference to “an interpretive community of lawyers, judges, and scholars that is constituted by fidelity to law as a cooperative social enterprise.”
3. Brad’s theory plays favorites among interpretive methods. He rejects the view that interpretation is, almost by definition, a search for the intention of an author. He rejects more grammatical notions such as “original public meaning originalism.” Both these theories see interpretation as having a fixed reference point; they reject the dynamic interpretation he posits as an element of competence. They reject the notion that meaning comes from an interpretive community, at least insofar as that idea means more than some sort of “public meaning.”
4. Brad justifies his theory on the ground that it promotes settlement, which is good. But why should settlement be better promoted by a dynamic theory than one with a fixed reference point, such as some flavor of originalism? Even if, as sometimes will be the case, no original meaning can be found it does not follow that it is incompetent to try, especially when trying might force change to go through recognized procedures rather than (unsettling) judicial ukases. (To be clear, I am not an originalist; my use of it here is to make a point about Brad’s theory, not to defend it as such (I am a legal-process purposivist).)
5. The Yoo-Delahunty memorandum exemplifies the problems, which I assert are insurmountable, this approach faces. The memo endorses an originalist approach to the question whether common Article 3 of the Geneva conventions applies to international conducts that are not civil wars. Both OLC and State agreed that the drafters of the language probably had that interpretation in mind, but State endorsed a pragmatic, dynamic interpretive approach and OLC did not. Each side agreed with the interpretation produced by the other’s methodology, but their methodologies differed. Unless there are grounds for rejecting originalism as incompetent, which Brad does not offer, then use of that methodology cannot support a claim of incompetence.
6. I believe this point is generalizable. The concept of competent lawyering has to be agnostic as to methods of legal analysis except insofar as those methods relate to client interests. Any method with a plausible claim to advancing client welfare, and which is grounded in the logic of the law and the practice of a reasonable number of practitioners, should be available to lawyers. No lawyer who employs such a method should be deemed incompetent for such a choice, so long as it is reasonably aimed at advancing client interests. Any other approach will dilute and discredit the concept of competence by making it a stalking horse for normative commitments—methodological or otherwise—that should fight in the open.
7. Thus, unless I have made a mistake somewhere along the way, self-reference has no normative bite and cannot be given even descriptive bite without choosing among actual practices. Because such choices will invariably be made on normative grounds, the aspiration to a self-referential legal ethics will be disappointed.