How Do Roles Generate Reasons? On the Methods of Legal Ethics

Stephen Galoob, University of California - Berkeley

Abstract

Debates about legal ethics should be oriented around the generative problem, which asks two fundamental questions. First, how does the lawyer’s role generate normatively compelling reasons for action? Second, what kinds of reasons can this role generate?

Every substantive theory of legal ethics is based on a solution to the generative problem. On the generative problem method, we should evaluate these theories based on their implicit solutions to the generative problem. None of the main theories of legal ethics is based on a solution to the generative problem that is both structurally valid and empirically verified.

The generative problem method has significant implication for debates about legal ethics. Methodologically, this approach provides a viable meta-theory of legal ethics, or a way to evaluate substantive theories that does not preordain which (if any) is correct. Philosophically, this approach moves theoretical debates about legal ethics closer to other philosophical debates about the sources of normativity. Finally, this approach identifies an important real-world dimension to theoretical debates about legal ethics. By focusing on how roles generate reasons and what kinds of reasons they can generate, we can empirically verify fundamental claims about legal ethics that have heretofore only been conjectured.