Apparently Substantial, Oddly Hollow: The Enigmatic Practice of Justice

The Practice of Justice: A Theory of Lawyers’ Ethics, by William H. Simon, is one of the most thoughtful and important books in legal theory – not just legal ethics – published in the past ten years. Like David Luban’s seminal contribution to legal ethics, Lawyers and Justice: An Ethical Study, published a decade ago, Simon’s book is a deliberate rival to accounts of lawyers’ professional responsibility that begin with a command to zealous advocacy, end with a prohibition on outright illegal conduct, and offer nothing in between. Authors and commentators have grown increasingly dissatisfied with this as the basic structure of legal ethics, but to date, no alternative model has gained widespread endorsement. Other than Anthony Kronman’s The Lost Lawyer and Luban’s Lawyers and Justice, I know of no other full-scale attempt to develop a profession-wide alternative to the all-zeal/no-unlawfulness model. We need as many serious attempts as possible if those of us interested in legal ethics are to fashion an enduring, plausible theory of how lawyers should act and who they should be. Each worthy effort teaches us what we should or should not include in such a theory, even if we do not wholly adopt the author’s proposal. Lawyers and Justice taught that we should be suspicious of a legal ethics founded on role morality. The Lost Lawyer focused attention on the centrality of high quality practical reasoning in good lawyering. William H. Simon’s The Practice of Justice reminds us to mine the rich resources of jurisprudence when building a solid theory of legal ethics, and to watch out if we ignore the jurisprudential foundations upon which our theory rests.