The Pragmatists Re: Radical Individualism

Abstract

In “The Legal Ethics of Radical Individualism,” Thomas L. Shaffer argues that legal ethics has been distorted by two doctrines in academic moral philosophy: first, the false separation of fact and value; and second, the assumption that the moral agent acts alone. To correct this distortion, and thereby “look at broken things through the lens” in such a way that makes them whole again, Shaffer suggests that the lawyer work from the competing premise: that stating facts is a moral act and that the community precedes the individual. This approach enables the lawyer to fulfill her ultimate goal of presenting “a more truthful description of reality.” (Shaffer, 978) Shaffer’s critique echoes the ideas of pragmatist philosophers who, beginning in the late 19th century, also rejected the doctrines he finds distortive. Chauncey Wright, John Henry James, John Dewey, Oliver Wendell Holmes, Nicholas St. John Green, and Charles Peirce agreed that truth inheres in the process of formulating and acting upon ideas, and that society is greater than the sum of its parts. In this Paper, I will consider Shaffer’s critique of radical individualism through the pragmatists’ lens. Drawing on Louis Menand’s account of the philosophers’ interwoven lives and ideas in The Metaphysical Club, I will first identify what the philosophers have in common and how their ideas lend support to Shaffer’s critique. I will further argue that the Model Rules Shaffer criticizes as inconsistent with genuine legal ethics are in fact in harmony with the moral framework he and the pragmatists espouse. Finally, I will show that the source of this discrepancy between Shaffer and the pragmatists with respect to the Model Rules is Shaffer’s flawed characterization of the lawyer’s role as mediator and synthesizer.