David B. Wilkins, faculty director of the Harvard Law School Center on the Legal Profession, spoke with T. M. Scanlon, Alford Professor of Natural Religion, Moral Philosophy, and Civil Polity, Emeritus at Harvard University and an expert in moral philosophy.
David B. Wilkins: The theme of this issue is the tension between role morality and personal morality, as well as group expectations and conflicting group expectations—all topics that you have thought and written about so brilliantly. Our audience is mostly practicing lawyers and law students, rather than philosophers. With that in mind, we did a bit of research and discovered that not only was your father a lawyer, but you also applied to law school and were set to attend Harvard Law School before deciding to pursue moral philosophy instead. I’m curious—if you could revisit that moment, what initially drew you to the law? What ultimately drew you to moral philosophy? And are these two things connected?
T. M. Scanlon: I never really considered doing anything other than going to law school and then returning to Indiana to practice law with my father. He was a litigator—very good at it and very proud of it. Our dinner table conversations were always about cases, the American Constitution, and the legal system. He would say that the adversarial system has its flaws, but it’s a lot better than the alternatives. I revered my father and knew that he wanted me to practice with him.
However, when I was in college, I got involved in writing a senior thesis on the philosophy of mathematics. I became deeply engaged with questions about the existence of mathematical objects—whether numbers exist, and in what sense mathematical statements are true if they’re not empirically verifiable. That interest drew me in a way nothing else ever had.
I did send in my deposit to Harvard Law School—$50!—and my parents were happy. But when we got home, we found a telegram saying that I had received a Fulbright. So, I went off to Oxford, took courses in moral and political philosophy, and loved them. I realized that I enjoyed philosophy so much that I didn’t want to give it up.
Philosophers and lawyers often address similar topics, and both are committed to testing ideas through critical reflection.
T. M. Scanlon, Alford Professor of Natural Religion, Moral Philosophy, and Civil Polity, Emeritus
In hindsight, my original decision to go to law school wasn’t especially well considered. I didn’t really reflect on my own strengths and weaknesses. I have a strong aversion to conflict; I don’t like forcing others to do things they don’t want to do, and I don’t like making risky decisions that others will bear the consequences of. I knew from my father’s experience that advising a client—whether to accept a settlement, for example—could weigh on you afterward. But at the time, I didn’t draw the conclusion that maybe law wasn’t exactly where I would be happiest.
Wilkins: This leads to the second thing I wanted to ask. Having chosen to become a moral philosopher rather than a lawyer, why should lawyers care about moral philosophy? What does moral philosophy offer to lawyers?
Scanlon: It depends on the specific moral philosophy, but I do think that lawyers and moral and political philosophers often approach questions from slightly different perspectives because they’re responding to different incentives and constraints. For example, consider rights or freedom of expression—topics I’ve spent time thinking about, and which clearly intersect with the law. As a philosopher, you start by asking, “What should I think about this?” You explore various examples and alternative interpretations; ultimately, you’re accountable mainly to yourself, although you’re also kept in check by the standards of your profession. If you put forward an idea that’s easily refuted, your peers will call you out on it. So you have to work out the details and consider what would happen if you followed certain arguments to their conclusions.
Notwithstanding this important difference in approach, however, as the above example underscores, philosophers and lawyers often address similar—or at least related—topics, and both are committed to testing ideas through critical reflection. Indeed, it was precisely to foster a dialogue between philosophy and other fields like law on issues of common concern that the journal Philosophy and Public Affairs was founded back in the early 1970s. As we editors put it at the time: “Issues of public concern often have a philosophical dimension.” Our hope was that the journal would attract readers and even contributors from fields outside of philosophy, including law. And it turned out that lawyers were much more interested than people from any other field. Indeed, one of the most cited papers in the journal was Yale Law School Professor Owen Fiss’s “Groups and the Equal Protection Clause,” a paper about constitutional interpretation by a lawyer but with an important philosophical dimension.
It’s important for the legal profession to be made up of people who believe that there is such a thing as “what the law is” that not only has an institutional reality but has some moral claim on officials and citizens alike.
T. M. Scanlon
Of course, as I said there remain important differences. A philosopher thinking about freedom of expression is thinking about it as question of what a system of government needs to be like in order to be justifiable to those to whom it applies. A lawyer, however, isn’t working from a blank slate. Whether considering rights, freedom of expression, or another concept, lawyers are always operating within the existing frameworks of common law, torts, constitutional law, and so on. These frameworks continually evolve and impose constraints on legal reasoning, because lawyers must make arguments that fit within the requirements and precedents of legal institutions. Nevertheless, as the Fiss article and many others by both philosophers and lawyers demonstrate, there is important value in exchanging ideas between the two disciplines since we are both thinking about the same underlying issues, and doing so seriously, even if in somewhat different ways.
Wilkins: One issue we explore in this discussion is the fundamental tension in lawyers’ lives between their professional role obligations and what they, personally, might believe about a particular case, issue, or individual, as well as what they think others might believe in terms of common morality. As a moral philosopher speaking to lawyers, what kinds of considerations would you hope lawyers keep in mind as they work through this challenge?
Scanlon: I understand the question, and I think it’s important, particularly in the context of criminal defense or lawyers who find themselves charged with defending “unpopular” clients, or clients they find morally abhorrent. But in my mind, this conflict often rests on—and perhaps masks—a deeper tension between what a lawyer believes the law ought to be, and what the law is as an institution.
It’s important for the legal profession to be made up of people who believe that there is such a thing as “what the law is” that not only has an institutional reality but has some moral claim on officials and citizens alike. This requires having enough faith in the institution to believe that it can, over time, correct itself when it’s in tension with what it should be. Ideally, lawyers recognize that there’s not just a difference between what they personally want and what the law requires, but also, perhaps more importantly, between what they believe the law ought to require and the direction it is headed. It’s this latter tension—the gap between the ideal and the reality—that concerns me the most at present since it is only when lawyers are willing to acknowledge and confront this potential gap that they are likely to defend an understanding of law that is fundamentally consistent with our deepest moral values as a society.
Wilkins: But as you say, this fundamental tension also intersects with the issue of whether and how a lawyer should represent unpopular clients—whether “unpopular” in their own eyes or to society more broadly. You’ve written about how all of us, including lawyers, belong to multiple communities: as citizens, as members of a profession, as part of institutional structures, and so on. What should the broader community tolerate, or even feel obligated to tolerate, when lawyers act in ways central to their professional role—even when the community disagrees with those actions on moral grounds? How do you think about this complicated set of issues?
Scanlon: If you’re going to be a defense lawyer, you have to be prepared to defend people whom you may not believe are innocent. Your job isn’t necessarily to get them acquitted at all costs, but rather to make the best possible case for them within the bounds of the law. In the case of a really unpopular client that can be a difficult position to be in—a “hard horse to ride,” so to speak. But I see this problem as arising more generally in terms of the two kinds of tension that I mentioned earlier.
Once again, the analogy to freedom of expression is instructive. As we frequently hear, and see tested, a commitment to freedom of expression can require defending it even when the speakers in question hold views that you yourself strongly disagree with or even see as abhorrent. This is the first kind of tension you mentioned between one’s own views and what one believes that the law correctly requires. But the more difficult and troubling tension arises when the courts make decisions that take the law in a direction that seems to you to be fundamentally mistaken. Here, I believe, the philosophical point of view can be helpful.
As someone who has thought a lot about freedom of expression, I believe that it is best understood at the most basic level, not as a right held by individuals—e.g., a right to speak—but rather as a limit on justifiable governmental power to restrict expression. In other words, a limit that is needed not only to protect individuals interest in being able to make their views heard, but also to protect our interest, as citizens, in being exposed to things that we have reason to hear in order to make up our minds, not only about how to vote but also how to live. This difference comes up in the recent court case involving the American Association of University Professors about whether it violates the Frist Amendment to deport non-citizens because of the views they are espousing. If we think of freedom of expression as basically a right of individuals, it is plausible to argue that non-citizens do not have this right, just as they lack the right to vote. But things look different if we take the other view I have suggested, because it is clear that what the government is trying to do is to prevent us, the public, from hearing certain pro-Palestinian views. To be sure, the former individual right-based view has considerable plausibility for many Americans, and I would not be surprised if the Supreme Court goes along with it. But if it does, it will give rise to the second, and in my view, more fundamental question I mentioned—the question of whether lawyers should defend the law when it seems to have taken a fundamentally wrong turn.
Dennis Thompson’s mission in starting the Program in Ethics and the Professions, now the Edmond and Lily Safra Center for Ethics, was to build a bridge between philosophy and the teaching of ethics in professional schools in law, business, medicine and public policy.
David B. Wilkins, faculty director, HLS Center on the Legal Profession
Ironically, in keeping with your issue’s theme, this tension is very similar to how I feel about the argument put forward by Owen Fiss about the Fourteenth Amendment in his article in Philosophy and Public Affairs. Fiss’s argument, in my judgment, is the best—and most morally defensible—interpretation of the Fourteenth Amendment. But the Supreme Court has gone in quite a different direction. As a philosopher, I can say, “That’s terrible! They have gotten it wrong!” Which I certainly believe. But what is a lawyer to say? And what does it indicate about how lawyers should regard the conclusions that philosophers arrive at?
Wilkins: Thank you so much, Tim. This has been extremely illuminating. I want to close on an issue that is near and dear to both of our hearts, an issue perhaps most forcefully put on the table by our dear mutual friend Professor Dennis Thompson, who we tragically lost earlier this year. As you know, Dennis’s mission in starting the Program in Ethics and the Professions, now the Edmond and Lily Safra Center for Ethics, was to build a bridge between philosophy and the teaching of ethics in professional schools in law, business, medicine and public policy. As you have so eloquently argued, both here and elsewhere, while philosophical reasoning is different than legal reasoning, it can shed light on many of the common issues that both lawyers and philosophers seek to understand. Given our current political climate, this kind of insight seems particularly important as lawyers struggle to uphold their dual responsibility to represent the particular interests of their clients while also preserving the core values of the rule of law and our democratic system in an increasingly polarized world. You have written extensively about the issue of “toleration” – when we should continue to feel ourselves in community with others even when we strongly disagree with some of their views – that strikes me as directly relevant to how lawyers should navigate the current environment. In the spirit of the kind of engagement that Dennis hoped to foster, I wonder if you might close with a few words about what we might teach future lawyers about tolerance that might help to prepare them for operating in our deeply polarized world.
Scanlon: Well, David, if I had a clear answer to that, I would be a much happier person!
But let me offer one thought that I learned from Rainer Forst, a political philosopher and a friend. One key point he makes is that toleration involves refraining from exercising some power or sanction you might otherwise use. For example, in politics, toleration means continuing to regard people as entitled to express their views and live according to their values—within certain limits—even when we strongly disagree.
It’s important to protect the space for disagreement, while also drawing the line at behaviors that genuinely threaten the inclusive character of our communities.
T. M. Scanlon
The same applies to friendship. It wouldn’t be appropriate for me to end a friendship simply because I don’t like your choice of clothing. Of course, there are limits to what we can or should tolerate in any relationship. Some things do make it impossible to maintain trust or mutual understanding.
This way of thinking about toleration, I believe, could go a long way to help students think about what should – and should not – be tolerated today. In an educational context, particularly in law, toleration means allowing people to express things we may find outrageous, while making clear that disagreement doesn’t mean exclusion from the community or from conversation. That’s a hard balance to strike, but I think it’s essential.
We also need to draw a line between legitimate counter-speech and something like “cancel culture.” If students protest someone’s invitation to give a graduation speech, that seems to me like a legitimate form of counter-speech, even if it might be ill-advised because it would better for the speech to be heard that not. But legitimate counter-speech does not include things like threatening people, making their lives miserable, or treating them as outsiders to the community just because of their views. These clearly cross the line into intolerance.
So, while I do believe we need more tolerance, I also think we should recognize that not all protest or criticism is a violation of free speech or open debate. It’s important to protect the space for disagreement, while also drawing the line at behaviors that genuinely threaten the inclusive character of our communities. I know that’s a long answer, and it might not resolve everything, but I do believe that it would be very helpful to teach lawyers and law students these distinctions offered by philosophy as they wrestle with these difficult problems.
Wilkins: Thanks Tim. I have no doubt that this is just the kind of insight that Dennis hoped to foster when he created what is now the Safra Center forty years ago—and that he is somewhere smiling that one of the original philosophers to support this effort, and a law professor from one of the Center’s first class of Fellows, are still engaged in this critical dialogue today.
T. M. Scanlon is the Alford Professor of Natural Religion, Moral Philosophy, and Civil Polity, Emeritus at Harvard University.
David B. Wilkins is the Lester Kissel Professor of Law and faculty director of the Harvard Law School Center on the Legal Profession.
