Positivist legal ethics defines the duties of lawyers in light of the structure and ethics of law, and the relationship between the system of laws and those to whom it applies. But is positivist legal ethics in fact a theory of legal ethics? That is, does it identify the ethical principles and virtues of the good lawyer? This paper argues that it does not. Positivist legal ethics provides a theory of the ethics of law, from which it identifies the duties with which lawyers must comply. The duties it identifies are legal, not moral or ethical. That does not make positivist legal ethics wrong, but it does have important implications for the scope and limits of the theory. It means certain questions are central to positivist legal ethics that may not be that important to other theories (e.g., how law ought to be interpreted or reformed). But at the same time there are other questions that positivist legal ethics cannot answer. Moral questions left to lawyers’ discretion or that the law does not address, and the point at which a lawyer may simply be unwilling to violate moral norms even if her role requires it, are things which positivist legal ethics cannot illuminate. Understanding the scope and limits of positivist legal ethics is essential for those who want to write and teach from that perspective, as well as for those who challenge it.

Continue Reading Is Positivist Legal Ethics an Oxymoron?