Ron: law and morality are not the same thing, though they may at times serve the same function, i.e. constraint. Nor are they both necessarily post-facto ways to rationalize reality. Hobbes, for example, didn't describe nature/reality as he saw it, whatever he may have said to the contrary; his concept of the sovereign and its law marked a departure with the past. (The same applies equally to, say, Bodin.) Legal reasoning -- let's stick with the example of a judicial decision -- may be such a post-facto rationalization, but legal reasoning, though it may inhere in the law, does not the law suffice.

Anyway, it does not follow that because law is transcendental nonsense, morality must be, too. And though I question the value of bringing Sartre into the conversation -- surely we can find more compelling moral thinkers? -- what Sartre suggests about morality that may actually have some value for us is not that people use morality to justify their choices, but that morality resides in the individual, and its necessary precondition is freedom. So I think that you are correct to gesture towards agency, but you are wrong to dismiss the moral dimension, because just as morality requires freedom -- at least if we're sticking with Sartre -- freedom relies in some way on the morality of others.

Of course here on the one hand we are speaking quite vaguely about concepts whose meanings we have not yet really defined -- I suppose in some ways we're still in Sunday School -- and so you may wish to disagree by (re)articulating your notion of morality. Or, on the other hand, you might hit back by gesturing towards, say, the master/slave dialectic. But I assume that if we have reached Sartre then we have passed Hegel. And I think that a more useful understanding of the relationship between freedom and morality coheres in the idea that in living a free life as a citizen of this or any republic -- in practicing freedom -- one inculcates in oneself an ethic, a certain morality, that is both practical and philosophical in nature. It consists in the Socratic injunction to take care of oneself, and thereby to take care of one's countrymen; in the Golden Rule; in the categorical imperative; and so on. It is basically the idea that in living a free life, one should not impinge upon the freedom of others. This is not a transcendental idea, nor is it nonsense. And it seems that it is moral.

I don't know that Eben would ultimately couch his point in terms of morality, or at least that he would reply on an explicitly moral argument at the expense of not convincing us to try a more creative route than that provided by the big firms. But Eben does believe deeply in the value of freedom, and I'm assuming that underlying his belief is a strong moral sentiment. That said, aside from the tendency of large law firms to "restrict individual agency and sharply curtail potential," there remains the fact that, in many cases, there are moral consequences -- if we retain our articulation of morality -- in the practice of big law with ramifications beyond one's own freedom. Mergers and acquisitions, deregulated markets, securities transactions -- all these have consequences. Things, including lawyers, are what they do, and too often what lawyers do leaves others unfairly dispossessed and disempowered, though such results may not immediately present themselves in the well-maintained interiors of those law firms whose photographs you posted the other day. And the attempt to label morality as transcendental nonsense seems just another convenient way to allow the souls of too many lawyers -- and probably too many of us -- to rest content.

-- GloverWright - 06 Feb 2010