INTERPRETING THE “BOUNDS OF THE LAW”: JURISPRUDENCE AND LEGAL ETHICS di K. R. Kruse
I wish to thank Professor La Torre and the University Magna Graecia for inviting me to speak to you today about a subject of increasing interest and importance in theoretical legal ethics: the role that jurisprudential theory plays in shaping our understanding of the professional duties that lawyers owe to their clients and to the legal system.
Today, I will talk about two jurisprudential questions and explain how the jurisprudential debates about those question implicate questions about lawyers’ professional ethics:
– One is a definitional question: What is law?
– The other is a question about why we should respect the rule of law: What makes law legitimate?
– For reasons I will explain later, I think the second question — about what makes law legitimate — is the more fundamental question for legal ethics.
But for the moment, I want to focus on the importance for legal ethics of the question of “what is law?” I will address the question of “what is law?” from three different jurisprudential perspectives: Legal Realism; Natural Law theory; and Legal Positivism. I will address them in that order because that is the order in which they have unfolded in the field of legal ethics. Then I will turn to what I will argue is the more important question that underlies the jurisprudential debate: what makes law legitimate?
Finally, I will lay out a model for how I think this question shapes and should shape the field of theoretical legal ethics, in which lawyers play an intermediate role between the law and those whom law seeks to govern. I argue that lawyers play an important role, not simply in enforcing legitimate law, but in creating law’s legitimacy.