I Do Solemnly Swear: The Moral Obligations of Legal Officials

by Steve Sheppard

• ISBN13: 9780521513685
• ISBN10: 0521513685
• Edition: 1st
• Format: Hardcover
• Copyright: 2009-04-27
• Publisher: Cambridge University Press

Summary

What should the people expect from their legal officials? This book asks whether officials can be moral and still follow the law, answering that the law requires them to do so. It revives the idea of the good official - the good lawyer, the good judge, the good president, the good legislator - that guided Cicero and Washington and that we seem to have forgotten. Based on stories and law cases from America's founding to the present, this book examines what is good and right in law and why officials must care. This overview of official duties, from oaths to the law itself, explains how morals and law work together to create freedom and justice, and it provides useful maxims to argue for the right answer in hard cases. Important for scholars but useful for lawyers and readable by anybody, this book explains how American law ought to work.

Table of Contents

Preface: Moral Officials, Retail Justice, and Three Caveats	p. xv
The Idea of Retail Justice	p. xix
Caveat Emptor: We will talk about Morality	p. xxi
A Second Caveat: The Sources are Untidy	p. xxii
Third Caveat: We are Talking about Morals as a Basis for Official Conduct	p. xxiii
Acknowledgments	p. xxvii
Introduction: Seven Questions about What Is Fit for an Official to Do	p. 1
What Should be fit for an Official to do?	p. 2
Seven questions	p. 3
A Guide to this book	p. 3
An Overview of the Arguments Introduced	p. 3
What are Legal Officials, the Law, and the Legal Obligations of Officials?	p. 3
What Is at Stake? Why, or How, Is It Helpful to Consider Any Obligations of Officials Other than those Imposed Exclusively by the Laws?	p. 4
Do Officials Have Obligations Arising from More than Law Alone?	p. 5
If so, What Is the Content of These Obligations upon Legal Officials?	p. 5
How Do Obligations Arising from the Laws Interact with Those that Do Not?	p. 6
What Does It Mean When an Official Breaches These Obligations?	p. 6
What Tools Assist an Official to Do Justice and Discourage Injustice?	p. 6
The Severability of These Questions	p. 7
Law and Office	p. 8
Perceptions of Law	p. 11
The Law as Perceived by Officials: Archive and Professional Culture	p. 12
Law Perceived by Citizens: Signs and Acts, Impersonal and Personal	p. 16
The Concept of the Legal Official	p. 18
Defining the Official	p. 19
Discretion and the Definition of the Legal Official	p. 21
Isolating Discretion within the Role	p. 22
Role Discretion and the Definition of the Legal Official	p. 23
The Legal Official in the Culture of the Legal System	p. 26
The Moral Ecologies of Legal Officials	p. 26
The Personal Motivation of Officials	p. 28
Achievement	p. 30
Image	p. 30
Self-image	p. 30
Reflected Image	p. 31
Private Image	p. 32
Public Image	p. 32
Aggregated Image	p. 35
Anxiety	p. 37
Personal Motivation and Moral Ecology	p. 38
The Legal Obligations of Legal Officials	p. 38
The Sources of Officials' Legal Obligations to Act	p. 40
Officials' Discretion Regarding Sources of Obligations to Act	p. 41
Patterns in the Applications: Conflict and Reconciliation	p. 42
Resolving Legal Obligations upon the Official as Official	p. 42
Resolving Conflict between Obligations as Official and Citizen	p. 43
Lingering Problems of Conflict and Fit	p. 44
Official Actions, Reasons, and Corporate Actions	p. 44
The Stakes: The Interests of Others in Official Actions	p. 49
The Laws Require Obedience	p. 50
The Obedience of Subjects	p. 50
The Obedience of Officials	p. 51
The Unanswered Questions of Obedience	p. 52
The Scope of the Laws in Everyday Affairs	p. 53
Subjects and Their Stakes in the Law	p. 53
A Case Study from Colonial Massachusetts, Part One	p. 54
Puritan Law: The Lawes and Libertyes as Partial Archive	p. 54
Puritan Law: Official Culture	p. 57
The Perception of Colonial Subjects	p. 60
Modern Reflections on the Colonial Subject's Perspective	p. 62
Summary: Contemporary Echoes of the Subject's Experience	p. 65
Officials and Their Stakes in the Law	p. 65
A Second Case Study from Colonial Massachusetts	p. 65
The Salem Trials	p. 66
Three Salem Officials	p. 67
Phips	p. 68
Stoughton	p. 68
Sewall	p. 69
A Contrast to Salem	p. 70
Jones	p. 70
Four Models of Legal Official	p. 71
The Official and the Subject	p. 75
Official Influence on the Lives of Others: Nine Metaphors	p. 75
The Dangers of Metaphor	p. 77
The Sword	p. 83
The Shield	p. 84
The Balance	p. 86
The Coin	p. 88
The Commons	p. 90
The Guide	p. 91
The Mirror	p. 92
The Seal	p. 94
The Veil	p. 97
Holding the Stakes	p. 99
Officials' Obligations Arise from More Than the Law Alone	p. 102
Legal Definitions of Office Incorporate Nonlegal Obligations	p. 103
Oaths of Office	p. 105
Office and the Rule of Law: The Promise of Independence	p. 109
Officials are not Exempt from General Obligations	p. 111
Natural Law as a Critique of Officials	p. 111
Moral Assessment of Official Acts	p. 112
The Stakes and the Special Temptations of Power	p. 116
The Official Accepts Responsibility for the Stakes	p. 117
The Nature of Office Encourages Bad Behavior	p. 119
Tribalism	p. 119
Conformity	p. 120
Hubris	p. 121
Immunity	p. 121
Domination	p. 121
The Challenge of Office to Morality	p. 122
Synthesizing Moral Obligations from Different Sources	p. 123
The Moral Obligations of Legal Officials	p. 124
Initial Problems	p. 125
Moral Knowledge and Moral Error	p. 126
Listening to the Right Voices	p. 126
Those Who Fear the Stakes	p. 127
Those Whose Ox Is to Be Gored	p. 128
Voices from Past Injustice	p. 129
Voices from Reason and Instinct	p. 130
Listening to the Wrong Voices	p. 130
Partisan Voices	p. 131
Conformist Voices	p. 132
Voices of Lucre	p. 133
Voices Others Cannot Hear	p. 134
Developing a Coherent View of Duties from Sources and Cases	p. 136
The Dangers of Taxonomy and the Catalogues of Virtues	p. 139
Four Types of Moral Obligation: Personal, Institutional, Procedural, and Substantive	p. 141
Personal Obligations	p. 141
Charity: The Fundamental Obligation	p. 141
The Persistence of Charity as the Foundation of Duty to Others	p. 142
A Summary of Official Charity	p. 152
Narratives and Cases	p. 153
Knowledge	p. 156
Personal Virtues	p. 158
Prudence	p. 159
Truth	p. 160
Humility	p. 161
Action	p. 164
Courage	p. 167
Personal Virtue and Personal Morality	p. 167
Institutional Obligations	p. 168
Carrying Out the Duties of Office	p. 168
Obedience to the Law as a Citizen	p. 169
Promoting Truth and Law over Officials and Superiors	p. 170
Fidelity to the Purposes of Law	p. 171
Fidelity in the Practice of Law	p. 172
Procedural Obligations: Fairness in Creation, Application, Change, and Practice	p. 173
Substantive Obligations	p. 174
Evolving Obligations	p. 174
The Special Obligations of the People as Sovereign	p. 176
Good Faith	p. 178
Patterns of Relationship between Legal and Moral Obligations	p. 179
The Complex Relationship between Law and Morals: The Example of Citizens	p. 180
The Law's Claim to Obedience, Again	p. 180
The Problem of Civil Disobedience	p. 181
Obedience to the Law or to Officials	p. 182
The Problem of Viewpoint	p. 183
Justice Ascertained by Overlapping Consensus	p. 184
Injustice as a Measure of Justice	p. 185
Consonance and Conflict for the Citizen	p. 186
Patterns of Legal and Moral Obligation: The Problem of Officials	p. 186
Agreement between Legal and Moral Obligations	p. 188
Moral Obligations Reinforce Legal Reasons to Act	p. 189
Moral Obligations Reinforce Legal Reasons Not to Act	p. 190
Legal Obligations Reinforce Moral Reasons to Act	p. 190
Moral Obligations Provide Reasons to Act within Legal Discretion	p. 190
Reconcilable Conflict between Legal and Moral Obligations	p. 191
Officials Alter Their Legal Obligations	p. 191
Officials Alter Their Moral Obligations	p. 193
Officials Alter Their Role Discretion	p. 194
Irreconcilable Conflict between Legal and Moral Obligations	p. 196
Officials Breach Their Moral Obligations	p. 197
Officials Breach Their Legal Obligations	p. 199
Officials Resign from Office	p. 201
Breaching Obligations	p. 203
The Impossibility of Perfect Performance, and The Problem of Dirty Hands	p. 204
Whether "Ought" Implies "Can"	p. 204
Dirty Hands	p. 205
Three Forms of Dirty Hands	p. 206
The Occasional Ruse of Dirty Hands	p. 207
Breaching Obligations	p. 209
Breaching Legal Obligations	p. 210
Oversight and the Legal System	p. 210
Acts and Omissions	p. 212
Legal Obligations and the Scope of Office	p. 213
The Breach of Legal Obligations and the Culture of Law	p. 214
Breaching Moral Obligations	p. 214
Systemic Moral Failures and Individual Responsibility	p. 216
Legal Sanctions for Moral Breach	p. 221
Private Image: Regret and Guilt	p. 221
Public Image: Reputation and Shame	p. 222
Law, Image, and Politics: The Limited Remedies for Moral Breach	p. 224
Tools for the Trade: Maxims and Fallacies	p. 226
The Nature of Maxims	p. 227
Maxims for Legal Office	p. 231
Some Maxims from the Nature of Legal Obligations	p. 231
Follow the Law, Both in Its Spirit and to Its Letter	p. 231
Follow the Law, Both as an Official and as a Citizen	p. 232
The Office Does Not Belong to the Officer, Sponsor, or Party, but to the Law	p. 233
The Law Is Not a Church	p. 234
The Law Has No Secrets	p. 234
Some Maxims from the Nature of Nonlegal Obligations	p. 235
Protect the Law, and the People Subject to It, from Other Officials	p. 235
Listen to Those Who Lose by Law	p. 235
Pursue the Least Unjust Result	p. 236
Some Maxims from the Obligations of the Good Person in Office	p. 237
Act Toward Others as You Would Hope They Would Act Toward You if the Roles Were Reversed	p. 237
Officials Must Know the Law and the Facts from Every Perspective	p. 239
Officials Ensure the Truth	p. 240
Some Maxims from Obligations of the Officer to the Institutions of Law	p. 241
Officials Must Balance Discretion in Office with Deference to Other Officials	p. 241
Good Officials Solve Problems	p. 243
Good Officials Correct Mistakes, Even Old Ones	p. 244
Good Officials Make Their Own Decisions	p. 246
Good Officials Must Act with Courage	p. 247
Some Maxims from Obligations to the Procedure and Substance of Law	p. 248
Officials Must Follow the Procedures of Law	p. 248
Officials Must Pursue Justice	p. 249
Legal Office and Moral Error	p. 250
The Nature of Fallacies	p. 251
A Few Fallacies for Legal Office	p. 252
A Fallacy about the Nature of Moral Obligations	p. 252
Morality Is a Private Indulgence, Not a Public Need	p. 252
Some Fallacies about the Substance of Moral Obligations	p. 253
Ipse dixit: It Is True Because of Who Said It	p. 253
Ad hominem: It Is False Because of Who Said It	p. 253
Ad populum: It Is True Because the People Believe It	p. 254
Ad baculum: It Is True Because There Is Great Danger	p. 254
Ad verecundiam: It Is True Because It Was Said by Authority	p. 254
Ad patronum: It Is True Because My Backer Wants It So	p. 255
Ad crumenum: It Is True Because the Money Says So	p. 257
Some Fallacies about the Performance of Moral Obligations	p. 257
False Binarism: There Is Only One Choice Between Two Options	p. 257
Stonewalling: It Is Best to Hide Our Errors and Misdeeds	p. 258
Exceptional Case: The Rules Do Not Apply in This Case or to This Person	p. 258
Treason: Questioning Officials Is Disloyal	p. 261
Tu quoque: They Did It, So We May Do It	p. 262
Epilogue: What the Official Ought to Do: Law and Justice	p. 264
Appendix: Taxonomy of Headings: The Lawes and Libertyes of Massachusetts (Discussed in Chapter 1)	p. 267
Overview	p. 267
Categories, Headings Assigned, and Lines Per Heading	p. 268
Index	p. 271
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