Variations on the Theme of Lawyerly Fidelity: Two Concepts of Legal Ethics Based on Political Philosophy

Abstract

Theoretical legal ethics is a practice-oriented theoretical discipline concerned with the role-specific ethical concepts of the legal profession, which emerged in the United States in the 1970s. The first decades of scholarly discourse were dominated by approaches based on moral philosophy (first wave), whereas from the 2000s these were gradually side-lined by theories rooted in political philosophy (second wave). In this paper, I discuss the ethical concepts of Daniel Markovits and W. Bradley Wendel, two key figures of the second wave, both of whom identified political legitimacy as the most important criterion for assessing legal institutions, the legal role associated therewith and the persons acting in such role; in addition, their theories were built on the same central idea: fidelity. Despite these similarities, the two authors’ views on what constitutes ethical behaviour for lawyers differ significantly.