McGowan and Wendel on the Torture Memos

Posted by Jeff Lipshaw

I have been remiss in not linking to a “dialogue” between two of my favorite thinkers (and people), Brad Wendel (in this corner) and David McGowan (in that corner) over at Legal Ethics Forum.  I put the “dialogue” in quotes because Brad posted a note some weeks back on whether the Minnesota Law School could consider the “competence” of Robert Delahunty (who was being considered for a visiting professorship) in connection with the infamous “torture memoranda.”  David has responded that there is in fact a colorable issue of interpretation of the Geneva Convention as to which any view of competence must be agnostic.  He suggests there is a problem of a self-referential loop in defining competence by what lawyers do, and, I think, accuses Brad of moving from the “is” of description – most lawyers would object to this – to the “ought” of a normative view – the majority is correct.   But Brad hasn’t responded, so there really hasn’t been much dialogue.

I was particularly intrigued by these paragraphs of David’s post:

2.  Brad recognizes that this theory has to incorporate a theory ofinterpretation. One cannot tell evasion from avoidance, or from agood-faith conclusion that a law does not apply, without knowing howlaws are supposed to be read.  He thinks the text of a rule often doesnot answer questions, particularly in “hard” cases. Thus,interpretation must aim at “recovering the spirit, purpose, ornormative background underlying a set of textual rules, not merely themeaning that the textual expression of these norms might plausiblybear.” Toward this end, interpretation is dynamic and necessarilyrequires reference to “an interpretive community of lawyers, judges,and scholars that is constituted by fidelity to law as a cooperativesocial enterprise.”

3. Brad’s theory plays favorites among interpretive methods.  Herejects the view that interpretation is, almost by definition, a searchfor the intention of an author.  He rejects more grammatical notionssuch as “original public meaning originalism.” Both these theories seeinterpretation as having a fixed reference point; they reject thedynamic interpretation he posits as an element of competence.  Theyreject the notion that meaning comes from an interpretive community, atleast insofar as that idea means more than some sort of “publicmeaning.”

4.    Brad justifies his theory on the ground that it promotessettlement, which is good.  But why should settlement be betterpromoted by a dynamic theory than one with a fixed reference point,such as some flavor of originalism? Even if, as sometimes will be thecase, no original meaning can be found it does not follow that it isincompetent to try, especially when trying might force change to gothrough recognized procedures rather than (unsettling) judicial ukases.(To be clear, I am not an originalist; my use of it here is to make apoint about Brad’s theory, not to defend it as such (I am alegal-process purposivist).)

I will throw in another perspective.  The “debate,” as David has framed it, is over the criteria by which we can determine that a lawyer’s interpretation (in advocacy) of a text is competent.  I have just started into John Searle’s Speech Acts, and his initial discussion is to fend off a particular criticism of concepts (in Searle’s case, analyticity of propositions and synonymy of words; here the equivalent would be competence of interpretation):  the critics contend that these are not helpful because we cannot establish good criteria for classifying borderline cases (here it would be between competent and incompetent).  The interesting paradox Searle observes is that we are able to accept or reject criteria only when we have a pre-supposed notion of the concept they are supposed to illustrate, meaning that – what? – we already have some knowledge about the concept before we begin to use language to define it.

The concept at issue is the one Brad mentions:  “the objection is that a lawyer who simply acquiesces in aclient’s demand, where the client has no legal basis for its proposedcourse of action, is failing to carry out the fundamental professionalobligation of providing competent, independent, candid legal advice andto refuse to assist the client in an illegal course of action.”  We can only view a particular interpretation of a text (whether a “dynamic” interpretation or one from a “fixed reference point”) as borderline competent if we have a notion of competence that precedes this particular debate.  I think David is arguing (and I’m sympathetic to it) that we have a concept of competence thatprecedes any attempt to define it by criteria of interpretive methods.

When this is over, who between these legal ethics heavyweights will still be standing?

UPDATE:  Now the battle has been joined!  See Brad’s response:  Wendel on McGowan on Wendel on Delahunty.  The thrilla in Manila!