Are Lawyers Philosophers?

The law is not philosophy. Therefore, lawyers are not philosophers? My interest in this article is to show that lawyers may not produce philosophy but can be philosophers in virtue of engaging in philosophical reasoning some of the time. Of course, this claim is not entirely original. As the philosopher Ronald Dworkin writes: “Lawyers are always philosophers because jurisprudence is part of any lawyer’s account of what the law is, even when the jurisprudence is undistinguished and mechanical.”¹ In particular, in Dworkin’s sense, lawyers can be philosophers in virtue of engaging in moral and political philosophy, that is, of identifying the law by assessing whether it fits against certain moral and political principles in a community whereby the law upholds the community’s integrity. In addition to Dworkin’s work here, while conceding his point, I want to argue lawyers can be philosophers in two more ways (Dworkin’s claim really only pertains to the Supreme Court):

1) The law is indeterminate. Many law students start law school with the assumption that they will “learn the rules,” i.e. the black letter law, but they later learn there’s a difference between what the law says and what the law really means. That is, there are not many easy cases. Many cases are hard cases. In many cases, lawyers are figuring out how rules apply to certain contexts to decipher their meaning, engaging in philosophical reasoning in virtue of clarifying legal concepts. They play around with the law to make it make sense in a complex legal system, rendering the law clear and cogent on a case by case basis so as to have a “thicker” character than the black letter law.

2) According to the philosopher Scott J. Shapiro, the law is a shared system of plans. In Legality, Shapiro describes law as the work of an attorney to clarify and adapt a system of plans to better meet the moral demands of living together. This sort of activity is philosophical. It transforms the abstract analytical skills of philosophy–analyzing hypotheses, devising counterexamples, and finding logical latitude to avoid apparent dilemmas–into concrete skills to address current issues such as voting rights, civil rights, and basic human rights. In this sense, lawyers as planners also means lawyers as philosophers.

Joseph F. Diller