There’s been a lot of hooting about a student note published by Phil Telfeyan in the Harvard Law Review, which discusses the poor, the conscience of lawyers, and related matters. Much of the criticism has focused on the fact that the article is self-righteous, unrelated to the law, and factually inaccurate. There’s a lot to these criticisms. But I thought perhaps I would try a different tactic and address the point Mr. Telfeyan was trying to make about conscience in the legal profession, in a direct letter.
Dear Mr. Telfeyan,
I am a public interest lawyer. I work at an organization devoted to defending private property rights and economic freedom, so I realize that your political views will probably mean that you will think I am not really working in the public interest. Obviously I would disagree with that, but we’ll get to that later. Suffice to say for now that I work in a non-profit, making about half of what the best of my law school classmates are now making, and way less than what you can expect to make. I did not go I Harvard. I could not have afforded it.
I have been in practice for five years, living in the Sacramento area, about a half hour from where your parents live, I understand. I make a comfortable living, earning about $99,000 a year plus some outside money for speeches or articles that I write in my spare time. This is quite good money for my profession and experience level, although, as I said, some of my classmates are making much more in fancy Orange County law firms. It’s enough to make my $2,000/mo housing payment, my $250/mo student loan payment, and other bills.
Now, in your article, you argue that lawyers with a conscience must go into public interest law, and that in a world where $200 can save the life of a child, lawyers really have no business making obscene amounts of money and not working to help the poor and the hungry. I disagree. I think lawyers who (ethically) make a lot of money do not deserve blame and in fact ought to be proud. Still, I chose to work in the non-profit field. How is that? Let me explain by first making my moral points.
1. I do not exist to make other people happy.
This goes for everybody else. People do not owe their moral worth to their efforts at alleviating the suffering or unhappiness of other people. Although this is the subject of a great deal of writing by ethics philosophers, which we can’t get into in depth here, I believe in the Aristotelian tradition that the purpose of my life is determined by the nature of my self—just as a plant’s goodness lies in its effectively doing those things that plants do, and an animal’s goodness in doing well those things that an animal’s nature require it to do, so a human being’s goodness lies not in alleged duties to serve others, but in his or her effectively and actively pursuing the “good life” of a human being. I don’t know how familiar you are with this ethical tradition, so if you’re curious to learn more, I’d recommend the works not only of Aristotle (particularly the Nichomachean Ethics) but of such Aristotelian philosophers as Ayn Rand, Tara Smith, Tibor Machan, and Philippa Foot, whose latest book, Natural Goodness, is a good concise introduction to this form of moral reasoning. The bottom line is, people are in charge of their own lives, and are responsible for accomplishing their own happiness. You say in your article that morality is “fundamentally concerned with the effects that actions have on other people,” but that is not correct in our view. In our view, morality is fundamentally concerned with the actions a person ought to take—it is a sort of nutrition of the soul. In some respects, that will concern one’s relationships with other people, but not in an essential respect. It is immoral to mistreat yourself.*
To many people, saying that I don’t exist to make others happy sounds cold and unfeeling, so let me explain briefly, first observing that it is not “feeling” but reason and thought that should resolve this question. As human beings, it is reason, not mere emotion, that guides our actions. People feel all sorts of ways for all sorts of causes. The question is whether those feelings are intelligible and consistent with the moral realities faced by human beings—that is, we must rely on reason, not unintelligible, random intuitions and prejudices, when determining what morality requires of us. It’s like law in that respect. You would hardly respect a judge who ruled on cases by saying “I feel sorry for the plaintiff, therefore I’ll rule in his favor.” Instead, there must be reasons, objective justifications, for a judgment, in law, as in morals. In your article, you give the example of a person walking by a drowning child, but you give no moral argument for the existence of a duty in that case. Perhaps there is a good argument, but you skip over it, relying instead on moral intuitions.
But you’ll note that there is no legal duty to help a stranger. Why is that? Surely eight centuries of Anglo-American common law judges have not all just been greedy monsters. Instead, the no-duty rule evolved because imposing such a duty would have serious negative consequences in many cases. And it would mean that my liberty, my life, my earnings, my pursuits, would have to be oriented around the alleviation of the suffering of every person I encounter in my life. And what degree of “suffering” would entitle another person to control over my choices? Suppose the child isn’t drowning, but just having an asthma attack, or is hungry, or lost his wallet, or has a splinter in his finger. All of these are cases of suffering. Do I owe a duty to alleviate that suffering in each case? Where do we draw the line?
Obviously I’m not saying that you shouldn’t save a child who’s drowning. But I am saying that what makes me a good person is not whether or not I go around saving drowning children. What makes me a good person is whether or not I pursue the life appropriate to a human being—the good life. Note that even in everyday language, we distinguish between people who rescue others, and on the other hand, people who fulfill the requirements of the good life. The former we call “heroes.” The latter we call “good people,” or say that they have lived “a good life,” or that they are “happy.” We know that not all heroes are good people, and certainly not all heroes live a good or fulfilling life. Morality, according to the ethical arguments I find most convincing, is concerned with a person’s flourishing, not with whether or not he goes around rescuing people in distress. While I myself contribute to charity, and represent clients without charging them for legal services, it is not that which makes up my goodness as a person; it is whether or not I live, as Aristotle said, the “activity of the soul in conformity with reason.”
2. Emergencies aren’t a good basis for judging routine ethical rules
The reason that cases like the drowning child or the out-of-control trolley car are so compelling is because these are cases of emergencies. If nobody acts now, someone will die. There are long and thorough arguments for the ethics of emergencies, but one thing is clear: emergencies are rare, often short-term events with very high stakes. They are moments that call for heroic acts. They are not, therefore, good guides for ethical behavior through most of life. Most of life is made up of routine moral choices—much more mundane things like choosing where to go to law school, choosing one’s diet, one’s friends, one’s daily pursuits. Even most crucial decisions clearly requiring ethical reasoning aren’t emergencies: should I have an affair with this woman or be true to my spouse isn’t an emergency.
Your article goes into some depth about young children being in various emergency situations, and you make the point that it is obvious in such cases that we ought to go to great lengths to rescue children in these situations. But you go on to say that a $200 donation to UNICEF can save the life of a child, and therefore we ought to send $200 to UNICEF. The reasoning seems to be:
1) Rescuing a child is a moral imperative
2) Sending $200 to UNICEF would rescue a child
3) Therefore sending $200 to UNICEF is a moral imperative.
But this is not as convincing as it may at first seem. First, as I’ve said, I disagree that rescue is a moral imperative. Rescue might be a good thing, given the right circumstances—circumstances that are, of course, exceedingly rare. And because they are so rare, when addressing our daily moral lives, we should think about things more long-range. Rescue implies an emergency, yet the problems with regard to world poverty and the starvation and misery of children and other humans in the third world are not an emergency—they are long term problems, indeed it the problems of all human history. Poverty is hardly a new phenomenon, caused by something modern. On the contrary, prosperity is the new phenomenon, caused by something modern, and the tragedy is that so many people have been left behind. More on that later.
My point here is that you can’t skip from the ethics of a rescue/emergency situation to the establishment of broad moral obligations that govern a person’s life choices. If I see a person drowning, and I can safely and effectively save that person, sure I should do so. (Not because it makes me a good person—it does not—but because I would want that person to do the same for me, and because no self-respecting person would allow such a thing to happen.) But that hardly means that I should change my career and become a life guard. My life is mine, and I have the right to decide how to spend it—whether as a life guard or as a lawyer or as a salesman or as whatever I want. My life is about my dreams, not about rescuing others.
3. Perpetual rescue is slavery
Just as strong as the emotional revulsion you feel at the prospect of callousness toward others is the emotional revulsion I feel at the prospect of living a life of servitude to other people. Imagine what living a life of alleviating other people’s suffering would really mean. It’s easy to think of it in terms of heroic rescue, but the reality is that a life of serving other people’s needs is a life not only of drudgery but of unrequited servitude. As Thomas Jefferson once said, “it were contrary to feeling and indeed ridiculous to suppose that a man had less right in himself than one of his neighbors or indeed all of them put together. This would be slavery and not...liberty.... This to men of certain ways of thinking would be to annihilate the blessing of existence: to contradict the giver of life who gave it for happiness and not for wretchedness.” Jefferson wrote this when he was told that if he failed to attend a session of the legislature, he would be haled in by the sergeant-at-arms. But the reason for Jefferson’s absence was that his wife was laying deathly ill from the effects of childbirth (something that indeed killed her not long after.) Why should his concern for his wife and his family take a back seat to serving the needs of the public? I don’t think it should. I have no moral right to force him, or any other person, to change his priorities and serve my needs instead of his own.
To tell a person that his life should be devoted to serving the happiness and alleviating the suffering of other people is to say that his property—which is to say, his labor—which is to say his life—belongs to others; that he has no moral claim over his own efforts, his own choices, his own dreams and pursuits; in short, that he is a slave. I regard slavery as horrifying and revolting—as just the sort of misery that our civilization ought to abandon. I believe in each person’s right to live for his own sake, and not for the sake of others.
4. Money isn’t everything
You write a lot about luxuries—you seem to be revolted at the materialism and shallowness you see around you, particularly among very well-paid lawyers.
I agree with you completely.
There is probably nothing in the Bible so wise as Matthew 26:16: “For what is a man profited, if he shall gain the whole world, and lose his own soul? or what shall a man give in exchange for his soul?” It’s obvious why those of us in the Aristotelian tradition would agree with this: the soul, the individual mind, is our most precious possession. It cannot be sold, it cannot be ignored, for anything. The shallow, materialistic person who thinks happiness is to be gained by the purchase of a new fancy car or a new fancy gadget, and who neglects the demands of his soul is indeed a worthless person. I’ve known people like this, and they make me sick.
But what is wrong with them? Is it that they’re selfish? On the contrary—the problem with such a person is that he isn’t selfish; that he neglects his self; that he sells his self too cheaply, for silly baubles. Here is a person with the precious gift of a human life who ignores it, and pursues shallow, temporary pleasures. His problem is a lack of appreciation. He has sacrificed his self, given up what no person should ever give up. He is just the opposite of selfish. As Aristotle put it, we often call people “selfish” when they
assign to themselves the greater share of wealth, honors, and bodily pleasures; for these are what most people desire.... So those who are grasping with regard to these things gratify their appetites and in general their feelings and the irrational element of the soul.... [I]t is just, therefore, that men who are lovers of self in this way are reproached for being so.... [But] if a man were always anxious that he himself, above all things, should act justly, temperately, or in accordance with any other of the virtues, and in general were always to try to secure for himself the honorable course, no one will call such a man a lover of self or blame him. But such a man would seem more than the other a lover of self; at all events he assigns to himself the things that are noblest and best, and gratifies the most authoritative element in and in all things obeys this.... [T]he man who loves this and gratifies it is most of all a lover of self.... Therefore the good man should be a lover of self (for he will both himself profit by doing noble acts, and will benefit his fellows), but the wicked man should not; for he will hurt both himself and his neighbors, following as he does evil passions.
(On this subject, check out this excellent and mercifully short article by Tara Smith, called “Money Can Buy Happiness.”)
As you can see, I would also agree that morality requires us to do the right thing always. But what is “the right thing”? Is it devoting one’s life to the service of others? Or is it the pursuit of a morally healthy life over the long term—to devote oneself to the fine and good things. That is, it’s about the pursuit of happiness—genuine happiness, not just “fun,” not just temporary bliss, not shallowness, but to suck the marrow out of life—to take an active part in constructive, productive pursuits. And that will mean a healthy family life, a happy community life, and sometimes it will mean working to help other people. But it is not centered around others, and it is not a life devoted to alleviating poverty or suffering.
I think it’s also worth mentioning that you never really know what’s going on in someone else’s mind. Buying a Ferrari might seem very shallow to you, but it may not be shallow to someone else. A person who has worked his way up from poverty, who has struggled, and fought against bigotry or ignorance or family problems, who puts himself through school and works late and finally succeeds in the world, and who buys himself a Ferrari to celebrate his success—why shouldn’t he? There’s nothing shallow about that. On the contrary, that Ferrari represents a spiritual value, just like a sculpture does. It represents his achievement, his accomplishment, his virtue. He should be applauded, not denigrated. Remember the story of Chris Gardner, the millionaire who worked his way up and whose life was the basis for the (largely fictional) movie The Pursuit of Happyness? Here is a man who has accomplished what he set out to do in life. And he deserves to drive a fancy car or have a big house precisely because he is not shallow: precisely because he has been a true lover of self, a lover of the best within him.
5. How to save the world
I could be wrong, but I suspect that you do not agree with me politically that the best way to alleviate poverty is through free markets and strong private property rights. That would be a long, in-depth debate—one that goes on all the time in weblogs, including this one. (I would recommend, incidentally, the interesting EconTalk podcasts devoted to the question of world poverty, by Peter Collier and William Easterly). Suffice to say that I believe that the problem of world poverty tends to be the result of restrictions on economic freedom that prevent the productivity and growth that lifts people out of poverty. Allowing free markets to grow—which means, eliminating the restrictions on economic freedom that have been imposed either by oppressive governments, such as in North Korea, or roving gangs of thugs as in many African and Asian countries, or by theocratic regimes as in the Middle East, should be the focus of those who want to work toward eliminating poverty.
Again, we come back to the distinction between rescue/emergency situations and long-term moral and legal reasoning. That distinction is well encapsulated by the old saying that if you give a man a fish he eats for a day, but if you teach him to fish, he eats for a lifetime. Or, as Ben Franklin once said,
I am for doing good to the poor, but I differ in opinion of the means. —I think the best way of doing good to the poor, is not making them easy in poverty, but leading or driving them out of it. In my youth I travelled much, and I observed in different countries, that the more public provisions were made for the poor, the less they provided for themselves, and of course became poorer. And, on the contrary, the less was done for them, the more they did for themselves, and became richer.
It’s worth noting that Franklin wrote this while discussing the corn laws—laws restricting free trade in grain, thereby making it more expensive and increasing poverty and hunger. The elimination of the corn laws allowed free markets to flourish and reduced the price of food for England’s hungriest people. I understand that some of the people who criticized your article have pointed out your error regarding the statue commemorating the Irish Potato Famine. While historians continue to debate the causes of the Famine, there is good reason to believe that economic restrictions, including the Corn Laws, were largely responsible. And it is particularly noteworthy that in the United States, where free markets have usually flourished, we have never experienced a famine. On the contrary, our leading health crisis today is obesity.
I believe sending $200 to the United Nations is a very bad way to help the poor. Government and quasi-government organizations like the U.N. routinely waste money on high overhead and administrative costs, and, alas, corruption as in the “oil-for-food” program. Private charities like the Salvation Army are usually far more efficient. But even then, these groups can alleviate suffering in the short term—often a praiseworthy thing—but they will not eliminate poverty. Poverty is eliminated by the creation of wealth, by productivity, by economic vitality, and that comes from investment and production. Charity programs don’t provide a permanent solution—indeed, they sometimes breed a cycle of dependence that only perpetuates poverty and props up the dictatorial governments that stifle economic growth. That isn’t to say they’re always a bad idea, but consider Africa, for instance. Something like 10 percent of African trade is between African nations, thanks to the high barriers against free exchange adopted by African countries. That sort of thing is a permanent roadblock in the way of getting the goods people need to the people who need them—something that UNICEF is not going to eliminate, or even alleviate for long.
It’s not my purpose here to change your political views, but to say that there are good reasons that have convinced good people that sending money to the United Nations is not the way to eliminate poverty in the long run. There’s an old story about an economist who was asked what the causes of poverty are. “Causes?” he replied. “Poverty has no causes—wealth has causes!” Many of us believe economic freedom and property rights will reduce inequalities, lift people from poverty, and help just those most vulnerable that you are concerned about. I disagree with you that we should choose careers on the basis of what we think is “the best way to help people”—I think a person should choose a career if that’s what he reasonably and honestly wants to do, and he should put himself into it entirely; he or she owes no duty to others to choose a career of servitude—but those of us devoted to defending the free market do, in fact, believe that it is the best way to help people.
6. Working in public interest law
Finally we come to the question of lawyers working pro bono or in public interest law. I have chosen this career path myself, not because I think there’s a nobility about working for free (I do not work for free) but because I believe in the cause I work for. I believe in freedom—freedom to buy and sell, freedom to speak and write, freedom to pray or not—the freedom that people need to pursue their own happiness without the interference of others who think that they have a moral right to demand service from others. I pursue my values. I’ve worked hard to get where I am—studied a lot, written a lot, traveled a lot, put up with a lot of crap—and I’m proud of my career. Although I do believe that what I am doing will help the poor in the long run, even that is not my primary concern. My primary concern is in protecting the opportunity to pursue happiness in freedom. That is a rare, rare opportunity, offered only a few times in world history, and particularly here in America because of our constitutional structure. That’s why I do it.
But what about lawyers who go into expensive, big name firms and make a lot of money? Are they shallow? Are they neglecting the requirements of morality? Some of them, no doubt. But a lot of them are people who are pursuing the best within them. They’re good lawyers who have worked hard to get where they are. They’re very smart, very hard working, very devoted people, and many of them (though certainly not all) are also very good people.
A good friend of mine was valedictorian at my law school, and now works at a big firm in Chicago. She’s married and has a baby. She makes a lot of money, as does her husband, who is also a lawyer. She didn’t start out rich, she didn’t go to a big fancy law school. She worked hard and got good grades and does the intense, often excruciatingly stressful and excruciatingly boring work of a major law firm. She deserves every penny she earns. She never stole it from anyone. They choose to pay her because they respect the fact that she has the right to choose whether to work for them and because she expects to be paid for her efforts—a rightful expectation. And she spends that money on herself and her family and pursues her happiness. She is a morally exemplary person. She also does pro bono work, sometimes, and she probably donates money to charity. But the point is, she is not a person who needs to devote her life to the service of others, and she does not need to be considered shallow for pursuing her own happiness.
It is sad, of course, that there is inequality in the justice system. Indeed, much of that injustice is an indefensible violation of the Constitution of the United States and of the demands of morality. The drug war, to name one enormous example. But inequality is also sometimes not an injustice. If I am charged with a crime I did not commit, and I hire an expensive lawyer and the government puts up a very bad deputy attorney general who makes a fraction of what my lawyer makes, is that an injustice? No—the injustice would be if I got thrown in jail! On the other hand, if a poor man who committed a crime gets a bad lawyer or no lawyer at all, is that an injustice? No, the injustice would be for him to escape punishment!
More to the point, to demand that I give up the money I have earned through honest work and mutual agreement with my employer or my customers, and to give it to someone else, would be unfair. To force me to do it would be to work an injustice on me. Justice, as the ancient writers said, means rendering to each person that which is his own. Yet here I did nothing wrong or unfair to anyone, and I am having to give up my earnings, or have them taken from me, to give to someone else whom I have not wronged? That really would be an injustice. Inequality is sometimes regrettable; sometimes not. (A lazy person ought to receive rewards not equal to those of a hard-working person.) But eliminating inequality very often takes the form of committing injustice.
Closing thoughts
Public interest law is a great career. But no person owes his life to the service of others, and no lawyer should feel obligated to devote his career to serving others on the grounds that economic inequalities are an injustice. Instead, lawyers should devote their lives to the pursuit of their rational happiness: to the activity of the soul in conformity with virtue. If that pursuit leads them into public interest law, or work as a public defender, or work in private practice, or work in a big-name law firm like my valedictorian friend, then good for them. Not because that helps other people, but because their lives belong to them, and it is up to each of them to create their own happiness.
Aside from anything else, I do admire your moral fervor. I wish more people put sincere thought into the important questions of life, and you are apparently a person who sincerely believes in doing the right thing. But I would suggest that you think more deeply about what the right thing really is. I think there are convincing arguments that the right thing does not consist of servitude to others, but rather of pursuing the flourishing life of productivity, pride, fellowship, achievement, and happiness. Sharing will make up a good part of such a life. And, at times, emergencies may occur in which it is right to take immediate action to rescue someone from peril. Yet that is not the purpose of life; the purpose of life is the pursuit of happiness. As such, if a person is good at public interest law, believes fervently in a given cause, and chooses to devote his career to public interest law, then that person should be applauded; at the same time, a person who is a top-notch lawyer who wants to pursue a financially rewarding life litigating at a big-name law firm and being the best he or she can be, then that person should be applauded as well. All people should be proud of their honestly obtained wealth, whether it is a small hourly paycheck or a huge cash bonus. No person should feel an obligation to devote his life to the service of others. While this world has an incalcuable amount of suffering, that suffering is best alleviated through free markets and wise, rule-of-law regimes, not through temporary charity measures. We all would be better off in a world where all were free to pursue their dreams free from interference from others, and free of a moral code that tells them to sacrifice their dreams instead.
*-To clarify, we hold that while morality is not concerned principally with the treatment of others, politics is. Questions about dealing with others we categorize as political questions involving justice, which is a term limited to interpersonal interactions. Interpersonal acts can be moral or immoral, but their moral character is judged by their effect on the self, while their characterization as acts of justice or injustice is judged by the effect on the other person's rights. So while a person can be immoral even alone on a desert island, he cannot be unjust to himself, only to others.
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