I Do Solemnly Swear: The Moral Obligations of Legal Officials (review)

The central thesis of this book is that “legal officials ought to carry out their offices according to moral obligations, not just narrowly defined legal rules” (p. xv). In general terms, this is hardly problematic, at least as concerns matters in which the law leaves room for discretion. But the devil is in the details, and I don’t think the author gives the devil quite his due.

To be sure, at the outset the author acknowledges that talk about legal officials having moral obligations arouses worry and suspicion across the spectrum of political views and ideologies. However, he does not engage the reasons for these concerns at any length or develop and qualify his thesis to address them. Readers who are worried about legal officials using their office to advance an extralegal vision of justice (i.e., their private or personal vision) will not be comforted by the author’s association of morality and justice and his advocacy of the view that officials ought to “pursue good and noble ends through the power of the law” (p. 189). The author is surely right that “there is no legal protection against tyranny, because laws may always be changed by law” (p. xxiv). However, it may be unreasonable, and perhaps even dangerous, to expect that morality can afford such protection. There are competing moral views that can be brought to bear on just about any given issue: Which among competing views is the official promoting, and by what right? A form of tyranny can also arise when self-righteous legal officials are tempted to subordinate the law to their conception of the just and good.

The book covers a daunting number of sources in moral, political, and legal philosophy and a wide variety of cases and examples, from the Salem witch trials to the torture memos. And its thesis encompasses all categories of legal officials, from jailors to judges. Its broad sweep is both a strength and a weakness. In some measure encyclopedic coverage comes at the expense of lack of sustained rigour and depth in the analysis of specific issues, such as ones that divide proponents of legal positivism, realism, natural law, and other legal theories. Similarly, extending the thesis to cover the generic moral obligations of all legal officials means that important differences between categories of officials get short shrift. The question of how moral obligations ought to figure in deliberation has importantly different nuances applied to a judge deciding a case than it does applied to a police officer deciding whether to issue a ticket to someone caught speeding.

Given the wide range of literatures covered in the text, it is puzzling that the author gives so little attention to the extensive literature on professional ethics, particularly since this literature deals squarely with his subject matter. Moreover, in its matriculated branches it does so for just about every category of legal official and with reference to traditions, professional bodies, and codes of ethics and conduct specific to each. However, this omission appears to be quite deliberate. In the preface the author laments how “ethical duties have been cabined into special notions in philosophy or limited by professional codes” (p. xvii) and notes with disapproval that “lawyers prefer the safer idea of professional ethics” to “broad and public connotations of duty” (p. xvi). He says little to elaborate these value judgments, but for my part I think there is something reassuring about “limiting” the ethical duties of legal officials to professional codes, which have the merit of being publicly agreed upon, proclaimed, and challengeable (by contrast, “broad and public connotations of duty” hardly seem public at all!). And I don’t think it a bad thing to play it safe when it comes to the latitude we allow legal officials to shape their offices with reference to what they individually hold to be moral obligations in excess of what the law requires or enjoins.

At any rate, professional codes and policy statements, and...