THE ADVOCATE V O L . 7 5 P A R T 5 S E P T E M B E R 2 0 1 7 703
FIRST CHALLENGE: PLURALISM
Creating and agreeing on a set of normative ethical principles to guide the
delivery of legal services to the public has significant challenges. Drafting
an actual code of normative ethics will prove even more complex. Put simply,
it is hard to get a diffuse and diverse group of individuals to agree.
Pluralism is the greatest challenge to normative legal ethics. If we seek
to construct guiding principles, how do we confront incompatible, competing
values? Can we construct a series of meta-values that are sufficiently
cohesive to allow for the multiculturalism and diversity our Constitution
protects? Or do we have to decide between competing values?
Ronald Dworkin offers one approach in his magnum opus Justice for
Hedgehogs.21 For Dworkin ethical life consists of three central principles: (1)
moral thought is independent, (2) moral values are unified and (3) the character
of moral values is interpretive. Dworkin’s analysis is complex and has
considerable nuance. For the sake of this article, the principles boil down to
the assertion that moral convictions are true or false and we determine
their truth or falsity through reasoning that interprets and analyzes moral
questions by engaging with values as opposed to empirical, scientific or
metaphysical inquiry. This means we resolve the disputes that arise in pluralistic
societies by identifying the values that underlie moral questions and
then applying moral reasoning to determine the ground of particular values
and their implications. We then reach answers to moral questions through
this reasoning process. For the legal professional, this approach requires
robust debate and scrupulous reasoning to foster, on average and in aggregate,
maximal justice, insofar as justice has actual normative content that
must be decided by choosing more legitimate and defensible values over
In contrast, Amartya Sen suggests that justice in pluralistic societies
requires a combination of utilitarianism and deontology. For Sen the guiding
normative principle is to maximize the ability of people to access and
pursue things they have reason to value.22 The pursuit is itself as valuable
as the outcome for that individual. Law must balance pursuit with result.
This is often referred to as the “capabilities” approach—justice requires
expanding citizens’ capabilities. Under this model legal professionals
engage mostly in protecting meta-norms that safeguard processes and minimize
destruction or diminution of an individual’s access to the things he or
she has reason to value.
These are but examples of potential approaches. The best approach
remains to be determined, but the challenge is inescapable.