I would like to add an acidic voice to our discussion of legal ethics, dignity, and normativity.
Words like fair(ness), just(ice), dignity, autonomy, flourishing, and the like, are the yellow lights of legal ethics discourse. When you see them you know the argument is about to end, and you should proceed with caution. The problem is not that no one knows what they mean, but that everyone does, yet they disagree about meaning. If the words weren't indispensable for a very limited purpose, we'd be better off without them.
How are the yellow-light words used? With like-minded friends they can be shorthand for whole arguments. In casual conversation with others, they are a last resort. You use them when you run out of arguments about jailed innocents, bilked investors, and double-crossed clients. Arguments, in other words, about costs and benefits. More formally, yellow-light words are sometimes used (to steal shamelessly from the incomparable Arthur Leff) to whisper conclusions as definitions at the beginning of a work so that they can be discovered as entailments at the end. (Some Realism About Nominalism, 1974).
One thing the words are not useful for is description. I think the discussion below (Alice and Rob and Patrick, in comments) about dignity and autonomy exemplify the point. The pragmatic maxim here does useful work--our knowledge of these concepts is the sum of our knowledge of how they are used. When I describe the Unabomber's dignity, or Scooter Libby's or Charles Manson's, the only useful part of the description will be the facts to which the word pertains and the consequences of using it.
Yellow-light words serve two rhetorical purposes, though. They signal the speaker's commitment to a position (and also that she has run out of practical reasons), and they invite the listener to examine his own commitments in light of the depth of the speaker's feeling. The invitation may be and often is rejected, but sometimes it isn't. Note though that it is the diffuseness of the words that makes the invitation work; the more concrete the meaning the less they invite and the more they insist.
Here's an example. When I say (as I believe) that out of respect for the dignity of persons we should recognize same-sex marriage, I do not assert "there is such a thing as dignity, I know what it is, and it entails recognition of same-sex marriage." I know that some listeners (not to mention our friend Kant, as I recall) would recoil at such an assertion, and it would be presumptuous and obtuse of me to pretend that words like dignity refer to actual things about which it makes sense to speak in terms of "right" and "wrong."
The content of my assertion is: "I feel strongly about this, as strongly as you do about the set of things you use the yellow-light words to discuss; please examine the sentiments that motivate your use of the words and see if that motivation can extend to my use." There is, I assert, nothing more that such words can do, but for that very useful purpose they are indispensable. If we decide to have a debate on dignity and same-sex issues, I think the point will become clear right away.
But my reference to dignity is my fallback. My reasons have to do with empirics--the persistence throughout recorded history of same-sex conduct (implying it is part of the natural variety of behavior), the fact that marriage in Massachusetts has not fallen apart since Goodrich, data from Scandinavia (see Eskridge on this), etc.
But better than this, of course--and better than whole libraries of learned discourses on dignity--if I know you are friends with and respect someone who is gay, I will talk about him or her. If you know a couple I will talk about them. I will tell stories about same-sex couples with kids. I assert that we all know these are the best methods of persuasion, and combining them with yellow-light words will give those words such content as they have.
I therefore agree in part with what I take Professor Singer's view about teaching normative methods, with the emphasis on methods. You don't lead with the words, and you don't shoot them out their on their own. They would would die of starvation. They have to be wrapped in and nourished by contexts that create frames that invite identification between one's own position and the world view of the person you are trying to persuade.
I don't know if Professor Singer would like my reading, which comes close to translating him as advocating the teaching of sophistic, but so far he is certainly right. And sophistic gets a bad rap anyway. It may ameliorate disagreement and conflict where the sincere search for capital-T truth would multiply them. (Liberalism, after all, values accommodation over truth.) Take the argument much past advocacy of sophistic, though, and I think Singer is likely to find himself in the anti-foundationalist swamp (Leff again), from which the desert of law and economics (against which Singer, like and partly following Leff, scores some good points) looks mighty good.
Teaching normative methods therefore has only a little to do with normative belief. It should stress facts and framing, that the best argument is the one that persuades the listener she already agrees with you, and the next best is one that requires her to move only minimally from her prior beliefs. Pictures help, too. (See Posner on Peter Singer.) It should also stress that normative rhetoric is tactical, and that true belief may blind an advocate to the tactics of persuasion. Lose perspective, argue badly.
I therefore am skeptical of Rob's call for more overt moralizing by lawyers (in his Legal Advice as Moral Perspective piece) and find the piece in tension with Singer's, about which Rob blogged. Instead of decrying the lack of moralizing, I would ask why practitioners seem to do little of it. After all, no one prevents them from doing so, and if clients find it useful lawyers could tout their moralizing and get business. Why don't we see that? Perhaps practitioners--and collectively they are smarter and more experienced about their trade than academics--are on to something. My impression is that they adopt amoralism as a default because it works best for them and their clients.
Lawyers should be sensitive to context and the full range of client needs--Rob makes an interesting case that lawyers for the Catholic church might not have been--but that modest contextual approach implies something closer to pragmatism than anything else. I suppose it is fair to call pragmatism a moral stance, if you want to, but having done so why condemn it and imply that something is wrong because we don't see more of alternative approaches? I do not think moralizing by lawyers would have stopped Enron from collapsing (a collapse too readily linked to the SPEs anyway); it would simply have been perceived (on both sides) as weird.
Richard Posner notwithstanding, academic moral philosophy is not going away, either in philosophy departments or law schools. That is not all bad. Philosophy is good for what David Luban in another context called intellectual hygiene. (The Revival of Pragmatism 281) I don't think it is good for more, but intellectual hygiene is an under-rated virtue. Most arguments fail to achieve it. But it can be an over-rated virtue, too. One should not expect people to accept arguments just because they are valid.
In this essay (284-87) Luban seems to agree with Arendt that philosophy is about wrestling with the meaning of some classic insoluble problems even if it cannot be about solving them (empirically, they seem to have no "solutions"). I am not wholly sure what he means by "grappling with the meaning of issues" (290-91), a term he uses in reference to Justice Brennan's references to dignity in Jones v. Barnes, but his view that Brennan's rhetoric invites re-thinking of an issue in foundational terms is congenial to my argument above.
But if we are talking about philosophy as a form of rhetorical invitation it must be judged by the standards of successful rhetoric, of which the strictures of logic are an important part but only a part. And that implies, I think, that in teaching normative method we stress the need for perspective, and thus some detachment from, normative commitment. Method, not normativity, is the key to normative method. Expecting or insisting on answers or Truth is an impediment.
DM