Naked Fitzies and Iron Cages:
Individual Values, Professional Virtues,
and the Struggle for Public Space
By Barry Sullivan
An
earlier version of this essay was presented
under the auspices of the Rufus Monroe
and Sophie Payne Lectureship, as the
inaugural lecture of the Center for
Religion, the Professions, and the Public
at University of Missouri-Columbia,
on October 14, 2003. The author would
like to thank Dean R. Lawrence Dessem,
Professor Jill Raitt, and the faculty
and students of MU for their warm hospitality
and thoughtful comments. The author
would also like to thank Jacob Corré,
Brian Murchison, Michael Palmer, Ellen
Podgor, Jeffrey T. Shaw, Joseph P. Tomain,
and Winnifred Fallers Sullivan for helpful
comments on an earlier draft. This essay
was originally published as Naked Fitzies
and Iron Cages: Individual Values, Professional
Virtues, and the Struggle for Public
Space, 78 TULANE LAW REVIEW 1687 (2004).
RPP is grateful for the opportunity
to reprint it here.
When we talk about the
problem of religious values and the professions,
we usually have something quite specific,
and quite practical, in mind: the need of
the professions to develop greater understanding,
tolerance, and openness to religious values
and practices, particularly those of clients
or patients, but also those of the professions'
members.[1]
This is a project that is critically important,
both from the viewpoint of accommodating the
need for individual self-realization, which
is fundamental to a free society, and from
the viewpoint of effectively delivering professional
services in a society characterized by great
diversity.[2]
It is an important project in any society,
but particularly so in one such as ours, which
was recently described in a New York Times
book review as "rich in everything except
the warmth of human connection."[3]
Important as this project is, however, it
cannot be the only project that commands our
attention. Nor is it a project without its
own risks, difficulties, and limitations.
To state the problem
as a need for openness or accommodation
seems to suggest that the professions hold
all the cards, that their place and authority
are settled, and that all will be well if
the professions simply do more to accommodate
themselves to religious practices and values.
This statement of the problem is questionable,
however. Not only does it presuppose that
accommodation is necessarily a good thing,
but it does so based on the implicit assumption
that religious values and practices categorically
are good in themselves or at least usefully
reinforce other desirable values and aims
of civil society.[4]
That may or may not be the case. To the
extent that religion may itself be intolerant,
for example, its values contradict, rather
than reinforce, other important values of
civil society. Accommodation cannot be achieved
in all cases without undermining the worthy
goals and values of other institutions and
components of culture. In addition, all
religious values and practices are not necessarily
harmonious.[5]
Accommodating some may disadvantage others.
Moreover, as Mary Douglas, the British anthropologist,
has suggested, religious people do not necessarily
make better citizens or better contributors
to economic life.[6]
Finally, religions typically seek to explain
the whole world, including the world of
the professions and professional relationships.
But the professions themselves have values,
and those values may or may not be consistent
with particular religious values. The well-being
of civil society emphatically depends upon
those values too.
Perhaps most important
today, the professions are themselves embattled.
By no stretch of the imagination can they
be said to hold all the cards. The professions
have lost significant authority, particularly
in the last half-century, and that trend
continues.[7]
To some extent, the professions have themselves
to blame. Their records of achievement have
often seemed slight in comparison to their
claims, their high principles less compelling
than examples of their venality.[8]
Professional values are also often said
to be "thin" values. The professions may
be strong in intellectual content, but weak
in normative engagement. In some cases,
the relationship between the profession
and the professional school may be uncertain.
When we say that law schools teach people
to "think like a lawyer," we generally mean
only that they teach a particular intellectual
style, a form of reasoning. Whether they
can or do transmit the ethos of the profession
is another matter.[9]
But the influence of the professions has
also been eroded by other forces. Among
these are the growing relative strength
of other institutions and the growing tendency
to believe that all important questions
of human life should be answered by the
market. Religious values and practices represent
another set of claims that vie for the space
held by the professions and other institutions
of civil society. In this sense, religion
does not simply seek its own space, but
it increasingly demands the space held by
other institutions of civil society, demanding
that they conform themselves to religious
values and practices of one kind or another.
For these reasons, it
is useful to view the problem of religious
values and the professions in a broader
context. What do we expect of the professions
in a free society, and, consistent with
giving religion its due (and no more than
its due), how do we ensure that the professions
are able to meet those expectations?
Let me begin with a
story about Sean O'Faolain and his friend
Frank O'Connor, two of the great Irish writers
of the twentieth century. Sean O'Faolain
was a man of letters-novelist, editor, essayist,
critic, and teacher. Frank O'Connor was
the master of the short story. He was often
called the Irish Chekhov and wrote the story
My Oedipus Complex,[10]
which most of my generation read in high
school or college. In 1977, about ten years
after O'Connor's death, O'Faolain published
a review in the Times Literary Supplement
discussing a then-recent book about O'Connor
and his work.[11]
Not atypically, O'Faolain's review devoted
more attention to O'Connor, O'Faolain, and
their friendship than to the book under
review. Towards the end of the review, however,
O'Faolain praised the author of the book
for being "splendidly insistent" with respect
to one aspect of O'Connor's character, that
is, his "warm feeling for people (or against
them), his wide, deep humanity that pierced
beyond all appearance, rank, office or profession."[12]
In an unforgettable
elaboration of this point, O'Faolain recalls
standing with O'Connor in O'Connell Street,
Dublin. O'Connor suddenly pointed across
the broad avenue to a new bookshop-Fitzpatrick's.
He said to O'Faolain, "Let's go across to
Fitzy's."[13]
O'Faolain continues: "Struck by the familiarity
of the word 'Fitzy's,' I said, 'So you know
him?' He just shrugged and laughed, and
at that second I understood the one great
difference between us, and the main source
of his strength as a writer, this wide humanity."[14]
O'Connor, "unspoilt by any formal education,
liberated from all known and imaginable
institutions …, saw in the people about
him only their naked personal identities."[15]
O'Faolain sums up: "He saw no uniforms or
titles, not even such titles as bookseller,
writer, professor, priest, saint, whore,
hero, or ponce. His world was inhabited
by naked Fitzies."[16]
There is a seductive
quality, an irresistible attraction, to
the promise of transparency which Sean O'Faolain
sees in his friend's ability to touch the
fundamental reality of human lives, transcending
barriers imposed by institutions and social
life, stripping away all accidental and
incidental attributes. Each of us struggles
with the challenge of authenticity in our
own lives, while other minds are a mystery
we seek to understand. On a practical level,
we strive constantly to overcome the distance
that separates us from others. Much of philosophy
deals with these two problems. To know ourselves
and one another truly is a deeply human
need. Cardinal Newman spoke to this yearning
in his choice of a motto: "Cor ad cor loquitur,"
that is, "Heart speaks to heart."[17]
And it is the conceit of great literature
to provide us with an insight into what
is truly real. Science has a similar objective:
to separate the relevant from the irrelevant,
the material from the immaterial, to provide
an understanding of some fundamental reality.
Yet it also seems naive
to think that we can know ourselves or each
other better by stripping away the barnacles
of our educations, professions, and institutions.
These barnacles have eaten deep into the
hull itself and are part of what we are;
they are not irrelevant to our search for
reality. We do not truly encounter each
other as "naked Fitzies," but as lawyers
and clients, as teachers and students, as
nurses and patients, as reporters and sources.
But none of us is only
a lawyer, a teacher, a nurse, or a journalist,
still less only a student or a patient,
a client or a source. A patient, for example,
may also be a lawyer, a nurse, or a physician
herself. In addition, we encounter each
other across or within racial, ethnic, political,
and religious divisions. Our respective
tastes and interests (or lack of interest)
in art, music, or sport may also be something
that provides us with common ground or not.
How and where we were brought up, and how
we were educated, may also provide points
of affinity or difference that facilitate
or impede communication.
Needless to say, the
effect that each of these factors may have
on our conduct and relationships will vary
from person to person, and from case to
case. Not all lawyers have been taught "to
think like lawyers" to the same degree.
Some lawyers see their work in broader-or
narrower-terms that have their origins in
other aspects of their educations and experience.
Not all Catholics are equally religious;
not all Catholics are religious in the same
way; not all Catholics give the same weight
to their religious beliefs in competition
with other values or institutions which
have some hold over them. All Catholics
do not believe the same thing or act in
the same way. All Catholics do, however,
share something important in common, as
do all lawyers, all physicians, and all
nurses. Among the many factors that influence
us, our professional training and our attitudes
about religion seem particularly important.[18]
We do not enhance our ability to negotiate
interpersonal communications or interpersonal
relationships by ignoring the reality of
these sources of values, that is, by thinking
that we can make our ways in the world as
"naked Fitzies."
Two examples may be
useful in illustrating this point. The first
is a scene from Betrayal: The Crisis
in the Catholic Church,[19]
the Boston Globe reporters' account
of the recently disclosed scandal in the
Archdiocese of Boston; the other is a scene
from fiction, taken from The House Gun,[20]
a novel by the South African writer, Nadine
Gordimer.
In May 1993, almost
a decade before the full extent of the sexual
abuse scandal came to light, Cardinal Bernard
F. Law invited four nationally known experts
on child sexual abuse to meet with him and
two of his priest-advisors for a working
lunch at the Cardinal's Residence.[21]
The four experts were a pediatrician, a
child psychologist, and two psychiatrists.
The four experts consisted of two married
couples; none of them was a Catholic. One
of the experts was Carolyn Newberger, a
child psychologist, who described the meeting
to the Globe.
According to Dr. Newberger,
the experts sat at one end of the table,
while the Cardinal and the priests sat at
the other end. A group of nuns waited on
the table. The experts all "realized early
on, before the appetizers were cleared away,
that the cardinal wasn't especially receptive
to what they were telling him," namely,
that the way the Church was handling these
cases was wrong, that sexual abuse should
be reported to the civil authorities, and
that priests who abused children were likely
to do so again.[22]
At the meeting, Dr. Newberger spoke at length
about a particularly serious case in Arizona,
where a sexual abuse victim had later abused
his siblings. Dr. Newberger tried "not only
to emphasize the facts of the case but to
engage the cardinal and the other priests
there to empathize with the victim."[23]
However, neither Dr. Newberger nor her colleagues
sensed that they were "getting through on
the human level."[24]
Let me quote from the
book:
"The cardinal
said canon law had to be considered. We
[the experts] just looked at one another.
Whatever we had just told him didn't seem
to be registering," Newberger said. "Canon
law was irrelevant to us. Children were
being abused. Sexual predators were being
protected. Canon law should have nothing
to do with it. But they [Cardinal Law and
his advisors] were determined to keep this
problem, and their response to it, within
their culture."
At the end of lunch,
Newberger and the other experts offered
to help the cardinal shape a new approach
to aggressively rooting out the sexual
abuse of minors by priests. Newberger
said the cardinal smiled at them and looked
deeply into their eyes as he shook their
hands, thanking them. But he never contacted
any of them again.
"I'm not Catholic,
but I feel betrayed," Carolyn Newberger
said. "I look to spiritual leaders of
all faiths to be moral. And the Church's
response to this problem has not been
moral. I'm angry in that the cardinal
asked for our advice and then ignored
it."[25]
There is much to reflect
on in this account. As we now know, the
Archdiocese of Boston had been engaged for
many years in the practice of denying and
concealing accusations of criminal sexual
misconduct against its priests. Virtually
nothing was done to protect children from
priests who were known to have sexually
abused young children. Cardinal Law apparently
was not the instigator of that policy, but
he and his advisors did nothing to alter
the Church's approach during his administration,
even as the seriousness and scope of the
problem became ever more clear. Indeed,
as we now know, Cardinal Law and his colleagues
were embarked, at the time of this meeting,
on a despicable course of action, a morally
grotesque delusion in which they put more
value on maintaining the reputation of the
Church (against truthful accusations of
past criminal activity) than on healing
victims of sexual abuse or on preventing
innocent children from becoming victims
of sexual abuse in the future. As Dr. Newberger
noted, Cardinal Law seemed indifferent to
the claims of the criminal justice system,
the teachings of modern psychology, and
the claims of elementary justice or compassion.
To the Cardinal, protecting the Church from
disrepute trumped all else. For most people,
that moral judgment not only seems wrong,
but unpardonable.
On the other hand, it
seems a bit presumptuous for Dr. Newberger
to dismiss Cardinal Law's asserted concern
for canon law by declaring that "[c]anon
law should have nothing to do with it."[26]
Cardinal Law may well have raised the subject
of canon law simply to shut off discussion,
and to disclaim personal responsibility
for his own failures. Indeed, Cardinal Law
may have chosen to discuss these issues
with non-Catholic experts for the very reason
that it would be easier to shut off conversation
with experts who would not be able to challenge
him on this ground. With Catholic experts,
he might well have been pressed to defend
his assertions about the meaning of canon
law and its relevance.[27]
Nonetheless, the demands of canon law, whatever
they might have been, were undoubtedly a
feature of the landscape to be negotiated.
The applicability of canon law to the situation
certainly was something that was appropriate
for someone in Cardinal Law's position to
consider.
Dr. Newberger is undoubtedly
correct in stating that the Cardinal and
his advisors intended "to keep this problem,
and their response to it, within their culture."[28]
But what does she mean by that? On the one
hand, there is the sense in which Cardinal
Law and his staff were undoubtedly attempting
to conceal criminal activity. On the other
hand, they also can be seen to have been
attempting to address problems within the
framework of their own values and institutions.
One has the sense that Dr. Newberger sees
her own perspective as representing objective
reality, whereas the Cardinal's views only
reflect his "culture." That is why she is
angry that the Cardinal sought expert advice,
but declined to take it.
The situation seems
to me somewhat more complicated than that.
Dr. Newberger's views are the product of
"culture" every bit as much as the Cardinal's,
and the Cardinal must have recognized that
fact in some sense. We may be more comfortable
with Dr. Newberger's views, but they are
the product of professional training and
experience and other cultural factors, just
as Cardinal Law's were. In the final analysis,
I do not believe that there is any defense
for Cardinal Law's actions, and I am not
willing to assume that he acted in good
faith in his dealings with the experts.
Rather than dismiss the Cardinal's culture
as a false one, however, it would have been
useful to explore it further. What was the
culture that provided the Cardinal's framework?
Canon law was part of it, but what did canon
law really require? Was numbness to human
suffering and the elevation of secrecy and
bureaucracy over considerations of justice
and pastoral concern a necessary part of
it? Would Cardinal Law's actions be justified
even within his own culture? In retrospect,
this professional consultation seems doomed
from the outset by a mutual lack of professional
and cultural understanding.
My second example comes
from Nadine Gordimer's novel The House
Gun. In this example, one may assume
good faith, but some degree of wariness,
on both sides. Duncan, a young, white South
African, is accused of killing one of his
housemates in a crime of passion. Harald
and Claudia, Duncan's parents, are wealthy
liberals in post-Apartheid South Africa.
Duncan seems unwilling to cooperate in his
own defense and chooses to be represented
by Hamilton Motsamai, a distinguished black
barrister who has returned from abroad.
Harald and Claudia know many lawyers; they
are uneasy with their son's choice of counsel.
The following passage describes their initial
interview with Motsamai:
They came
independently to Advocates' Chambers, she
from her surgery, he excusing himself from
a board meeting of the insurance company
where he was a director. … Motsamai
was like his chambers, well-appointed. There
was immense self-confidence in his combining
the signs of success in a prestigious profession
… with the wisp of beard just under
the point of his chin that asserted a specific
traditional African style, another order
of dignity and distinction. … In his
elegant grey suit, here is a man who has
mastered everything, all contradictions
that were imposed upon him by the past.
… His is a face made by disciplines
of the mind, the features drawn closed by
concentration. … They study him; whatever
is there is what they are dependent on as
neither has ever before been dependent on
anyone.
His intermittent attention
to them was a kind of rehearsal of how
to approach what he has to tell them.
He had been briefed … so [he] knew
they were not nobodies — one of the
directors of a large insurance firm with
a pragmatically enlightened policy towards
blacks, and the wife, evidently, a doctor.
Educated people to whom he could speak
plainly so that they would understand
his position: that is, the limitation
of his possibilities in undertaking the
brief.
…
…
The advocate was nodding, tapping extended
fingertips in a little tattoo of agreement
with the father. … There is often
… difficulty when an individual is
in trouble, is in shock. You know (to
her) it's like when someone comes to you
after an accident, in trauma, just like
that. …
The advocate knows the accused's mother
is accusing him: of being too measured.
He's accustomed to this kind of reaction,
fear turned to resentment. In her case
no doubt exacerbated by the fact that
she is accustomed, as he has reminded
her, to being the professional adviser
instead of the victim. He looks away,
flicking aside the shred of irrelevancy.[29]
Motsamai is familiar
with the evidence and he knows that his
ability to defend Duncan is seriously limited.
Motsamai attempts to explain these facts,
but Claudia is both personally engaged as
a parent and unaccustomed as a professional
to being the recipient, rather than the
purveyor, of professional advice. As the
foregoing passage suggests, there are deep
cultural differences between Motsamai and
his client's parents, but nothing is so
great as the effect of Motsamai's professional
perspective and the parents' utter dependency
upon his professional skill — a dependency
magnified by its novelty and alienness.
As Motsamai notes, Claudia is accustomed
to being the professional advisor, not the
victim. She blames him for being "measured,"
which is what she doubtless would wish to
be if the roles were reversed. Whether Motsamai's
demeanor is arrogant or not, that is how
it strikes Claudia, despite good faith on
both sides: his well-intentioned, but profoundly
naïve, attempts to engage her as a fellow
professional, rather than as a mother; her
attempts to understand that he has been
retained for his ability to do the job he
has to do, with what he has to work with,
and not to ingratiate himself with his client's
parents.
As these two examples
suggest, it is not as "naked Fitzies" that
we usually encounter one another. To be
sure, we must endeavor to encounter each
other in a reflective way, and based on
our common humanity, not as masked men and
women defined only by the roles that we
play. However, for us to be liberated from
"all known and imaginable institutions"
is not only impossible, it would leave us
crippled and diminished if it were possible.
To consider ourselves in this way is the
antithesis of the reflective posture we
need.
We are greatly influenced
by our professional training and roles,
and by our attitudes about religion, among
other things.[30]
As Mary Douglas noted in How Institutions
Think, however, we are generally disinclined
to credit the mediating effects of institutions,
or the influence that institutional categories
exert on our individual thinking.[31]
We like to believe that we have escaped
from "the old non-market institutional controls,"
and that "we are the first generation …
to come face to face with one another as
real individuals, and … [are thus able]
to achieve full self-consciousness."[32]
Ironically, as Douglas points out, these
propositions themselves depend upon the
very kind of shared classification from
which we like to think we have escaped.[33]
Institutions provide us with categories
of thought, set terms for self-knowledge,
and fix our identities.[34]
Douglas argues that even "[t]he most profound
decisions about justice are not made by
individuals as such, but by individuals
thinking within and on behalf of institutions."[35]
Thus, "[c]hoosing rationally … is not
choosing intermittently among crises or
private preferences, but choosing continuously
among social institutions."[36]
If Mary Douglas is correct,
institutions, including the professions,
have a profoundly important role to play
in civil society. For institutions to fill
this role, their values must command respect;
they must be strong, and they must be perceived
as legitimate. But neither society nor institutions
are static. In a pluralist society, the
strength and legitimacy of institutions
is always relative and subject to ongoing
renegotiation.
Like other institutions
of civil society, the professions are not
static. For example, the boundaries and
influence of professional jurisdictions
are constantly subject to change. This phenomenon
manifests itself in numerous circumstances,
but is particularly obvious in circumstances
of technological innovation, where several
professional groups may lay claim to exclusive
jurisdiction over a new set of procedures
or techniques. Was it clear, for example,
in the early days of radiology (or roentgenology,
as it was then called) that these new diagnostic
procedures would become the province of
physicians, rather than some new or existing
allied field? Who wins these jurisdictional
battles, and how secure and final the victory
is, depends on many factors, of which logical
connections and existing expertise are important,
but by no means determinative. The existing
power of a particular profession may be
as important as anything.[37]
Jurisdictional disputes
may also be influenced by exogenous factors.
At a particular time, for example, the intellectual
and political currency of cost containment
may be sufficient to trump every competing
consideration, so that the only question
that concerns policymakers will be the cheapest
way to satisfy a specific perceived need.
At other times, a widespread concern for
individual safety may be dispositive. These
factors necessarily interest us at the level
of interprofessional jurisdictional disputes,
but they also have a profound effect upon
the larger environment, which not only affects
distributions of authority among the professions,
but the equally dynamic balance of authority
between the professions, on the one hand,
and other institutions of civil society,
on the other hand.[38]
Many factors undoubtedly
affect the relative space that the world
of the professions is capable of claiming
at any particular time. Before the 1960s,
as Stephen Toulmin has observed, American
society was characterized by a "politics
of consensus," which encouraged the public
to place substantial trust in the expertise
and good faith of professionals.[39]
Around 1970, however, that consensus had
been shaken by disagreements over civil
rights and the legitimacy of the Viet Nam
War, among other things, and "the assumption
that professionals were true to their callings
had weakened, [so that] physicians [and
other professionals] faced the same shift
in the burden of proof as … other authority
figures."[40]
In addition, the claims made for professional
knowledge and expertise often exceeded the
reality. That was true of government officials
and the military in the Viet Nam era, of
the legal and medical professions throughout
much of the period, of the business and
accounting professions in the wake of the
Enron and WorldCom bankruptcies, and of
the clergy at various times and in various
ways, but most notably in connection with
financial corruption in Protestant television
ministries and the cover-up of the sexual
abuse scandal in the Roman Catholic Church.
A more permanent feature
may be the relative strength of claims made
by competing institutions, such as capitalism
and the state. In a sense, as Elliott Krause
has argued, the professions are remnants
of a lost world, when neither capitalism
nor the state exercised the kind or degree
of authority they now have.[41]
In the early modern period, the world of
work was organized around the guilds, which
were autonomous by virtue of their control
over four different areas: (1) setting requirements
for entry, training, and full membership
in the guild; (2) regulating the workplace
or means of production; (3) regulating the
market, that is, setting more or less enforceable
rules relating to production; and (4) maintaining
monopoly through the guild's influence over
the state.[42]
The autonomy of the guilds was challenged
by the power of capitalism and the state
at various times, and most of the guilds
— the weavers, the goldsmiths, the
stone masons — disappeared as guilds
long ago. Those that survived — the
lawyers, the physicians, and the clergy
— established the model for what we
now call the professions; they still maintain
some aspects of the guilds' autonomy. According
to Elliott Krause, the professions were
able to persist in their autonomy because
of their connections to the universities,
the perceived cultural prestige of knowledge,
and the difficulty of commodifying knowledge.[43]
Capitalism, the state, and the professions
still compete for influence in a dynamic
way.
Even now, the professions
aspire to define their own jurisdictions,
the body of knowledge and skills necessary
for practice, and the requirements necessary
for admission and continued membership.[44]
In describing the professions, two additional
factors are critical: (1) the concept of
professional work is understood to include
the idea that it is not work performed simply
for remuneration, but something that gives
pleasure and a sense of fulfillment; and
(2) the idea of professional autonomy includes
the idea that professional service encompasses
something more than merely serving the interests
or choices of others.[45]
In other words, the ideology of the professions
"claims devotion to a transcendent value
which infuses its specialization with a
larger and putatively higher goal"[46]
than mere client service. In this respect,
the professional schools are thought to
play a central role, as the faculty of professional
schools not only "codify, refine, and extend
the profession's body of knowledge and skill,"
but they also "elaborate and clarify the
values served by their discipline." [47]
The extent to which
the professions are able to act autonomously
in these areas is ultimately a question
that the state will decide; the autonomy
of the professions is now largely a delegated
autonomy, which may be limited or withdrawn
by the political process. (We have seen
a somewhat stark example of this principle
in action in the past two years, as the
SEC has sought to redefine the ethical responsibilities
of lawyers in the wake of the Enron bankruptcy.)[48]
As a practical matter, the autonomy of the
professions is also subject to economic
and cultural forces, both internally and
externally. The hourly (or other) fees that
a law firm may charge clearly depends on
market forces; lawyers cannot charge more
than the market will bear. However, the
number of hours that lawyers in a law firm
work depends not only on the amount of business
that a firm has (more lawyers could be hired
to do additional work), but on lawyer expectations
as to their overall compensation. Just as
the number of lawyers and the pervasiveness
of law in society have increased in the
past thirty years, so too has the amount
of public information about lawyer compensation,
as well as expectations about levels of
compensation and the size of the cohorts
to be compensated at those levels.[49]
As everyone knows, starting
salaries in large law firms skyrocketed
in the 1990s, and senior lawyers saw themselves
entitled to similar increases. Firms which
considered it unprofessional to talk about
billing targets a generation ago (but generally
expected lawyers to bill about 1500 hours
a year) may now expect 2100 or 2200.[50]
Many promise hours-based bonuses to associates
who work even more. These positions seem
attractive to students and young lawyers,
who face large debt burdens, but many view
these positions as relatively short-term
opportunities to earn large salaries, rather
than opportunities for long-term professional
growth and development. Law firms often
tend to take the same view.
In other words, the
influence of the market on the professions
is very strong, and necessarily so, at least
insofar as the world of the professions
is indistinguishable from other ways in
which economic value is created in society.
Even in economic terms, however, the professions
are fundamentally different in at least
one economic sense: there are inherent limits
to how much professional labor can be replaced
by capital, or to how much productivity
can be improved by technology. In this sense,
as Robert Kuttner has suggested, the professions
are inherently inflationary.[51]
Physicians expect to
be paid more as the cost of living increases,
but there are fairly strong constraints
on increasing productivity. Higher pay can
only marginally be justified in that way.
For example, diagnostic technology has improved
the speed and accuracy of medical diagnosis
— and physicians may choose to be more
productive in various ways, such as by seeing
patients only in their offices, while leaving
hospital care to others-but they cannot
see many more patients in an hour than they
always have, unless the notion of "being
seen by a physician" is dramatically redefined.
That, of course, gets us to the heart of
the matter because changing the nature of
what it means to be "seen by a physician"
may be unobjectionable from the viewpoint
of economic efficiency, but extremely troubling
in terms of the moral responsibility which
the medical profession and the public believe
to be owed to an individual patient by an
individual physician.[52]
Of course, physicians
also have duties beyond those that they
owe to individual patients. They have the
duty to preserve and enhance their own professional
knowledge and skills, and to assist others
in doing so.[53]
They also have an ethical and legal duty
to report certain threats made by patients,
as well as the diagnosis of certain types
of diseases and injuries,[54]
and they have the duty to be truthful when
advocating for their patients in connection
with the allocation of scarce resources,
such as organ transplants.[55]
In the two latter cases, the physician's
duty to the public may actually conflict
with her duty to the patient, who may wish
to keep his gunshot wound or venereal disease
secret, or have the gravity of his liver
disease exaggerated to make a transplant
more likely. If the physician is employed
by a hospital or other entity, that entity's
economic interest may also be antagonistic
to the patient's or the public's. In other
words, the medical profession operates within
constraints that have force and are peculiar
to the nature of the work that medical professionals
do.
The same is true of
lawyers, who owe similar duties to their
clients, but also to the courts and the
public.[56]
A lawyer must normally prefer his client's
interest to his own. He must normally also
keep his client's secrets, at whatever cost.
But he sometimes must prefer the public's
interest, as when he knows that his client
is planning to commit a crime.[57]
Similarly, a lawyer may not put a client
on the stand when he knows the client will
lie in a civil case.[58]
But this conflict also arises in less dramatic
circumstances. Under the rules of civil
procedure, a lawyer may not submit a pleading
that he has not independently investigated.[59]
Generally, such an investigation is also
in the client's interest, but that is not
always the case. Even where the client has
no need for an investigation, and does not
wish to incur the expense of having one,
the lawyer's duty is absolute. In these
important ways, the lawyer is required to
do something other than "give the lady what
she wants." Indeed, the lawyer is sometimes
required not to give the client what she
wants.
But suppose that the
client wants something less stark than that.
Suppose that the client instructs the lawyer
to take advantage of every procedural tool
at her disposal, and to be as obstructionist
as humanly possible without incurring the
wrath of the judge. And assume further the
client will not be persuaded that such tactics
are actually inconsistent with her own self-interest,
and that she is utterly unmoved by the fact
that engaging in such tactics is also contrary
to her lawyer's interest. Or suppose that
the client does not like Muslims and makes
it a condition of the lawyer's continued
professional engagement that he not represent
any Muslims so long as he represents her?
What response does one
make to such demands? What if the lawyer
is a sole practitioner and the demands come
from her most important client? What if
she is employed by a firm and subject to
its discipline? Or, more starkly, what if
the lawyer is not a lawyer in private practice,
but an employee of the client?
Let me return for a
moment to the relationship between professional
schools and the professions. Law schools,
like other professional schools, offer instruction
in professional responsibility. Some do
an excellent job; others less so. If one
assumes, however, that the connection between
the profession and the professional school
is essential to the nature of the profession,
and that the faculty's role is not simply
to "extend the profession's body of knowledge
and skill," but also to "elaborate and clarify
the values served by the discipline," I
think there is room for asking some fundamental
questions about the adequacy of our approach
to these issues.
In sum, members of a
profession are generally understood to have
ethical obligations that are peculiar to
their professional status. These obligations
often cannot be explained in economic terms
and may actually conflict with economic
interests. In addition, as Durkheim has
suggested, the ethical systems of various
professions are "not only … distinct
from [each] other, but between some kinds
there is real opposition."[60]
The virtue of passive obedience that may
be required of a soldier or a priest, for
example, would be a serious fault in a scientist.[61]
Professional virtues may also be opposed
to the values embraced by other institutions
of civil society.
Thus far, I hope that
I have suggested something about the importance
of professional values, the competition
among professional values, and the inherent
fragility of professional values. But professional
values also exist, of course, in a world
in which the professions and their values
compete with other institutions or components
of civil society, and their respective values.
What I would like to consider now are two
aspects of that greater world which seem
to me to be quite important at the present
time. Both involve claims that are imperial
in their aspirations. Both involve a preference
for individual self-realization over the
value of institutions. One is the increasing
tendency to assign economic value and significance
to every aspect of human life, and, more
particularly, to make markets the ultimate
arbiter of value, perhaps because of their
seeming neutrality or because of the apparent
absence of social consensus surrounding
other systems of determining value. The
second involves the more aggressive claims
recently made on behalf of religion, which
seem to have come about, at least in part,
in response to perceptions of increased
secularism in civil society. These two sets
of claims result in serious challenges to
other institutions of civil society, including
the professions.
Forty or fifty years
ago, legislatures routinely passed legislation
which either purported to solve problems
directly, or delegated the authority to
solve problems to administrative officials,
without any systematic consideration of
economic costs or benefits. In law schools,
one could take a course in administrative
law without hearing a whisper about the
economic consequences of regulation.[62]
Public policy was impoverished by that absence,
and far better legislation undoubtedly would
have resulted from a legislative process
in which such questions were straightforwardly
engaged. Today, by contrast, we often seem
to begin with the assumption that the economic
answer to a problem is the correct one,
and the burden rests on those who champion
some other view to demonstrate their relevance.
Thus, one might well be challenged by ostensibly
responsible people to explain why a university
should not capitalize on the perceived value
of its undergraduate degree by auctioning
off the last 100 places in its freshman
class to the highest bidders among a group
of minimally qualified applicants.[63]
The same question could be raised with respect
to auctioning off the opportunity to name
a law school among wealthy lawyers and other
prospective donors, who may or may not embody
exemplary professional standards. In other
words, we have gone from a situation in
which policymakers did not attend to clearly
relevant economic considerations to one
in which only economic considerations are
deemed presumptively relevant, even dispositive.
As Stephen Toulmin has
suggested, "any assumption that the standard
methods of economic analysis are applicable
similarly to all situations introduces distortions
that we can escape only by 'de-universalizing'
them, and limiting their application to
well-recognized and carefully analyzed conditions."[64]
But that may not be as easy as it seems.
Robert Kuttner has observed that "[m]arkets
relentlessly seek to commodify things that
are unsuited to market principles of impersonal
exchange."[65]
The assumption is that markets work perfectly
if left alone, and that market theory can
be applied to virtually any situation.[66]
The extravagance of the claims made for
economic analysis, and the degree to which
those claims have been accepted, seems well
summed up by a seminar paper written by
a third-year student at a leading law school.
The student wrote: "Students at this law
school do not aspire to careers in public
service or in public interest law. Nor should
they." In the paragraphs that followed,
the student argued that it would be a waste
of human resources for the brightest and
best-educated law students to devote their
attention to the public's business. If his
fellow students had any desire to do that
kind of work, they could do it at large
firms, which permit pro bono work, he asserted,
not out of any concern for professional
values or the public interest, but simply
as a means of recruiting the ablest law
students.
If this is one's point
of view, then how does one deal with the
ethical responsibilities of lawyering? If
nothing has purchase but self-interest and
utilitarian calculation, the moral suasion
of professional values must indeed be fragile,
and compliance with professional values
can depend on nothing more than locating
the optimal level of noncompliance. Duty,
to say nothing of generosity or altruism,
is illusory. But this is a thin, and ultimately
unsatisfying, view of professional or civic
life. Mere calculation and self-interest
provide too slight a basis on which to build
the institutions of civil society.[67]
The other development
that I think significant is the new assertiveness,
and the increasing numbers, of those who
demand public space in the name of religion.
It might be thought that this development
is a salutary one, from the perspective
of those interested in professional values,
and that may well be the case, to some extent.
On balance, however, I think that the imperial
claims made on behalf of religion are potentially
as dangerous as those made by the market.
There are undoubtedly
many causes for the new assertiveness of
religion, which are beyond my ken and expertise.
We live in a time when great significance
is attributed to particular forms of personal
expression and self-realization. The influence
of the mainline churches is less than it
was, and different kinds of religious institutions
have filled that vacuum.[68]
There is also a sense in which members of
the dominant culture feel threatened by
pluralism and the openness to other cultures
which seem essential to civil peace and
individual self-realization in a diverse
society. To the extent that such accommodations
are perceived as growing secularism in a
"Christian society," as they are by many,
these accommodations seem threatening to
them. Similarly, many are frustrated by
the historical trend towards greater individual
liberty, in the sense championed by John
Stuart Mill.[69]
Those who believe that certain practices
are immoral, usually on religious grounds,
often are reluctant to leave such practices
to individual conscience, but believe that
the well-being of society depends upon the
deployment of state power against them.
Whatever the causes, the results are clear
enough.
Let me illustrate this
point with two examples. The first is a
case, Endres v. Indiana State Police,
that was recently decided by the United
States Court of Appeals for the Seventh
Circuit in Chicago.[70]
Benjamin P. Endres, an Indiana state trooper,
was assigned to work full time as a Gaming
Commission agent. "Gaming Commission agents
certify gambling revenue, investigate complaints
from the public about the gaming system,
and conduct licensing investigations for
the casinos and their employees."[71]
Endres declined this assignment. He told
the state police that he was willing to
enforce general vice laws at casinos, but
that he could not perform the specialized
duties required of Gaming Commission agents
because doing so would facilitate gambling,
in violation of his religious beliefs.[72]
His request for another assignment was refused,
and his employment was terminated.[73]
Endres then brought an employment discrimination
action under Title VII of the Civil Rights
Act of 1964.[74]
According to Endres, Indiana could justify
its employment action only if it could show
that it could not reasonably accommodate
his religious practice without undue hardship.[75]
The federal government supported Endres
in his claim.[76]
In an opinion by Judge
Easterbrook, the Seventh Circuit held that
the relevant provision of Title VII did
not oblige states "to afford the sort of
accommodation that Endres requested."[77]
If it did, the court said, "law enforcement
personnel [would have] a right to choose
which laws they will enforce, and whom they
will protect from crime."[78]
The court noted:
Many officers
have religious scruples about particular
activities: to give just a few examples,
Baptists oppose liquor as well as gambling,
Roman Catholics oppose abortion, Jews and
Muslims oppose the consumption of pork,
and a few faiths . . . include hallucinogenic
drugs in their worship and thus oppose legal
prohibitions of those drugs. If Endres is
right, all of these faiths, and more, must
be accommodated by assigning believers to
duties compatible with their principles.
Does [the Civil Rights Act] require the
State Police to assign Unitarians to guard
the abortion clinic, Catholics to prevent
thefts from liquor stores, and Baptists
to investigate claims that supermarkets
misweigh bacon and shellfish? Must prostitutes
be left exposed to slavery or murder at
the hands of pimps because protecting them
from crime would encourage them to ply their
trade and thus offend almost every religious
faith?[79]
Obviously not. The answer
is obvious in this case, however, only because
the employer is not an ordinary employer,
but a paramilitary organization.[80]
It is not "reasonable," according to the
court, to require such paramilitary organizations
to accommodate "task-specific conscientious
objection."[81]
"This is especially pertinent," the court
suggested, "when the assignment is unpopular:
the State Police had to draft Endres because
there were not enough volunteers."[82]
Accommodation would be unreasonable, whether
it would constitute an "undue hardship"
or not. Agencies "designed to protect the
public from danger may insist that all
of their personnel protect all members
of the public-that they leave their religious
(and other) views behind so that they may
serve all without favor on religious grounds."[83]
There are two things
that interest me about this case. The first
is the extent to which Endres's claim (regardless
of its ultimate rejection by the court)
reflects currently prevailing views as to
the importance of self-realization, the
role of religion in self-realization, and
the degree to which religious values are
commonly thought to be privileged as against
other values. Obviously, we are far removed
from the time when Justice Holmes could
dispose of an analogous claim with the aphorism
that someone "may have a constitutional
right to talk politics, but [not] to be
a policeman," as he did in McAuliffe
v. Mayor of New Bedford.[85]
On the other hand, I would submit that only
thirty or forty years ago, most policemen
assigned to protect a casino or a barroom
would have accepted that as part of their
jobs; they would have done it, regardless
of their personal, religious views. This
is not to say that they took their religious
beliefs less seriously, but that they did
not think that it was the state's job to
design their public responsibilities in
a way that accommodated or complemented
their personal religious views. Of course,
the case reports of the period reflect various
claims of conscientious objection, but the
expectations expressed by those conscientious
objectors doubtless seemed more unusual
then. These obviously are points that I
cannot prove, but I believe them to be true.
What may have seemed an unusual or extreme
position then seems a more mainstream view
today.
The other aspect that
I find interesting is the court's reliance
on the fact that the organization involved
in Endres is a "paramilitary" force,
where demands of professional discipline
are necessarily more stringent. That characterization
is true, of course, but similar issues arise
in other contexts. Presumably, religious
claims will prevail more easily where the
employer is not a paramilitary force. But
conflicts do not arise only between religious
values and an employer's demands; conflicts
also arise between religious values and
professional values, among and between professional
values, and between professional values
and an employer's demands. Consistent with
our constitutional system, objections based
on religion will receive a fuller hearing
than those based on professional ethics.
A relevant illustration is the recent case
of a physician employed by the New York
Times, whose termination for refusing
to violate the physician-patient privilege
was upheld by the New York Court of Appeals,
which gave virtually no consideration to
the physician's claim that her employment
by the Times was subject to the Code
of Medical Ethics.[86]
President Clinton's
Guidelines on Religious Exercise and
Religious Expression in the Federal Workplace,[87]
issued in 1997, provides my second example.
The stated purpose of the guidelines is
to ensure that what otherwise would be permitted
speech or conduct by federal employees should
not be deemed prohibited simply because
it is religious in nature. In addition,
agencies are generally prohibited from
restrict[ing]
personal religious expression by employees
in the Federal workplace except where the
employee's interest in the expression is
outweighed by the government's interest
in the efficient provision of public services
or where the expression intrudes upon the
legitimate rights of other employees or
creates the appearance, to a reasonable
observer, of an official endorsement of
religion.[88]
Of course, federal workplaces
exist for the primary purpose of accomplishing
the public's work, and the guidelines properly
acknowledge that fact.
Perhaps the most interesting
provision of the guidelines is that dealing
with expression "directed at fellow employees."[89]
The guidelines permit employees to engage
in "religious expression directed at fellow
employees, … and even attempt to persuade
fellow employees of the correctness of their
religious views, to the same extent [as
with] speech not involving religion."[90]
The guidelines specifically recognize that
some religions impose a duty to "spread
the faith at every opportunity, a duty that
can encompass the adherent's workplace,"
and the guidelines seek to accommodate conduct
based on such beliefs.[91]
Similarly, federal employees may urge colleagues
to participate (or refrain from participating)
in religious activities to the same extent
as with "other personal endeavors."[92]
On the other hand, "employees must refrain
from such expression when a fellow employee
asks that it stop or otherwise demonstrates
that it is unwelcome."[93]
Conduct by supervisors is dealt with separately.
There are several points
to be made about these guidelines. First,
like Endres's claim, the guidelines reflect
certain prevailing views as to self-realization
and religion. Second, they treat religion
as being indistinguishable from baseball.
If some people in the federal workplace
are afforded the opportunity to talk baseball,
a similar opportunity must be afforded to
talk religion. Third, the guidelines recognize
that some religious groups require their
adherents to proselytize whenever possible,
and it is the intent of the regulation to
accommodate or facilitate the activities
of such religious groups. If a federal employee
does not wish to be the object of such efforts,
she has the duty to make that clear. Her
right to be left alone will be protected
only if she affirmatively asserts it. Fourth,
the regulation properly recognizes that
workplaces are social as well as economic
in nature, but one must wonder about the
balance that the regulation strikes in this
regard. Again, it seems to me that the very
existence of this regulation, to say nothing
of its content, demonstrates a profound
shift in American society. Individuals undoubtedly
have always proselytized in the workplace.
On the other hand, I do not think that most
people, until fairly recently, thought of
themselves as having an inalienable right
to do so. Not to be Dickensian about it,
but I think people generally went to work
with the expectation of getting their work
done, gossiping a bit, and talking politics
or baseball, but not necessarily securing
new adherents to their religious organizations.[94]
To be sure, there is
much discrimination and lack of understanding
with respect to some religious groups. The
truth of that fact has been demonstrated
graphically and repeatedly since the events
of September 11, 2001. On the other hand,
as these two examples suggest, "religion"
seems to be doing quite well. Perhaps Endres
himself did not fare as well as he would
have liked, but that was due to the nature
of his employment. At the same time, there
are strong pressures being exerted on the
professions. Some of these are economic,
but others are rooted in the claims made
by competing institutions such as religion.
As I noted at the outset,
the demand for greater awareness and more
understanding on the part of the professions,
with respect to the religious beliefs and
practices of their members and clients,
is both reasonable and necessary. As I also
noted, however, the project of responding
to that demand is one that carries its own
risks and difficulties. Nor can it be the
sole object of our attention. More general
questions about the role of the professions
in society, and the weight that their values
rightly command, are also questions that
deserve our consideration. This is work
for all of us, but it is particularly necessary
that the professions themselves demonstrate
greater self-awareness and understanding
of their own values and of the social space
they occupy. For a profession to hold its
own in competition with other institutions,
its values must have some purchase. But
it is difficult for professions to reach
consensus on values that do have purchase.
Indeed, even to talk about professional
values is to engender skepticism. What values,
for example, do lawyers have?
For many years, the
American Bar Association took a narrow view
as to the range of issues it deemed relevant
to the corporate concerns of lawyers. It
spoke out against such evils as lawyer advertising
and in favor of mandatory fee schedules,
but it neither admitted people of color
to its membership nor spoke out in favor
of racial equality. When civil liberties
were threatened in the early years of the
Cold War, the leadership of the bar often
was not heard from at all. If the bar was
heard from, it was often on the side of
those who wished to restrict civil liberties.
In recent years, that focus has changed.
The bar has recognized its obligation to
the public, to speak out on matters within
its expertise, and to contribute what it
can to the greater conversations of humanity.
The leadership of the American Bar Association
has taken strong positions about such matters
as access to legal services, the administration
of the death penalty, minimum requirements
of due process, and various issues relating
to legal equality. In some cases, such as
access to legal services, the ABA's words
have not been matched by actions. Indeed,
the legal profession has fallen seriously
short in its commitment to solving the problem
of unmet legal needs. In other cases, as
when the leadership of the ABA decided to
take a position on abortion, the debate
became protracted and bitter, and many members
left the association. More generally, a
substantial minority has criticized many
of these initiatives on the ground that
they have nothing to do with the corporate
concerns of the bar.
Perhaps the most noteworthy
example of this type of criticism is to
be found in Justice Scalia's dissent last
term in Lawrence v. Texas, where
he pronounced the majority opinion "the
product of a Court, which is the product
of a law-profession culture, that has largely
signed on to the so-called homosexual agenda,
by which I mean the agenda promoted by some
homosexual activists directed at eliminating
the moral opprobrium that has traditionally
attached to homosexual conduct."[9
