So far I have done a lot to argue against Thane Rosenbaum's The Myth of Moral Justice. Even my last post in which I tried to point out some of the things I liked was just another attack. Let me at this point try to offer a broader view of my problems with the book.
In my first post about the book, I wrote that it's two biggest flaws were first, that he was interested in emotional truth rather than factual truth, and second, that he thought morality was essentially a matter of emotions and that emotional harms can be resolved through story telling.
When it comes to morality, I am not particularly concerned about emotions. Emotions are not an important part of morality. If I had to explain how Rosenbaum gets to this place, I would argue that his personal ethics are primarily concerned with human dignity, and that as such infractions against dignity produce emotions, and the emotions occur when people are stripped of their dignity. That is about as charitable as I can be when it comes to his position, because emotions are not a big concern to ethicists.
There are multiple theories of ethics, of course, and I haven't studied any in several years. With that caveat, I am going to reconstruct some of those theories in order to show how Rosenbaum's view does not fit into any of them.
First, Aristotle argued for a virtue based ethics. There are a certain set of traditionally recognized virtues: Honesty, Bravery, Justice, Kindness, and so on. Virtue is found in the middle road between two extremes. Thus, there is a continuum of "bravery" with cowardice on one extreme and foolhardiness on the other extreme. A brave man is one who rationally examines risks before proceeding, i.e. does not foolishly charge headlong into dangerous situations, but who also does not shrink from difficulties. Aristotle was not overly concerned with damaging emotions. I find I am more receptive to Aristotle's ethics than I used to be.
Second, Kant argued that morality should be a matter of strict rules that each person should follow. We are to act only on those maxims which we can will to be universal laws. Furthermore, we are to treat human beings always as ends in themselves and never as means to an end. From this derives a lot of modern thinking about human dignity, but even this thinking is not overly concerned with human emotions. Whether someone is treated with dignity is not a matter of the emotions they have in response to your actions, in other words, it is deontological as Kant's theory is, and not consequentialist. Offenses to dignity can produce emotional harms, but that is not the motivating factor in Kant's theory.
Third, there is, of course, Utilitarianism. In it's simplest form, utilitarianism tells us to produce happiness. This leads naturally to the arguments that if morality is a matter of feeling good, then it would be best to feed the population heroin or other drugs that produce feelings of euphoria. John Stuart Mill tried to avoid this argument by distinguishing types of happiness such that lower pleasures, such as drunkeness or sex, were not as valued as higher pleasures such as art or music. That doesn't really solve the problem, though and other utilitarians have tried to modify the theory in various ways, for example, by introducing "side constraints" that limit the space of acceptable actions. I still don't find any of this convincing.
We might think that Rosenbaum is making a utilitarian argument throughout his book by discussing emotional harms. But I just don't think that is what he is doing, and even if it is, it is not well thought out. This is perhaps the third great flaw in this book: Rosenbaum's moral theory is not articulated. If he is making a utilitarian argument, then his book will not be convincing to people who are closer to Aristotle or Kant. That may be why I find it so dissatisfying.
Ultimately, I am concerned with human dignity, human rights, and civil liberties. My personal morality is largely informed by the insight that everyone has to act right--that there are right ways to act and wrong ways to act, i.e. that there are rules to follow no matter what consequences they produce. I cannot subscribe to Kantian ethics or Aristotelian ethics because I am at heart a nihilist and a pragmatist. That is to say, I can't believe in a priori theoretical constructs. The world, if not human arguments, will always show every theory to be insufficient. We must be empirical and pragmatic about truth. Nonetheless, I accept a Liberal, rights-based, dignitarian, and democratic view of the world. Thus, I would be more interested in critiques informed by values derived from these perspectives rather than all this nonsense about emotions.
I am more sympathetic to deonotological theories of ethics than utilitarian views, but I realize that neither can fully describe the world. If we assume that Rosenbaum is adopting a utilitarian theory, then he will certainly fail to make a sufficient argument against the practice of law, because those views are not particularly widely accepted. Ultimately, a successful critique of the legal system will include only those parts of the system that every ethical theory would reject. In other words, each ethical theory should be a limiting factor on the number of problems with the legal system. (Think vin diagram.) That would be the best critique.
Generally, I am more concerned about the morality of the practice of law, and as such whether a person can be moral and be a lawyer. Sometimes I doubt it because representing individuals requires zealous advocacy, strict confidentiality, and the advancement of the client's interests to the exclusion of other concerns. The best response is, as far as I can tell, that though law is nominally concerned with "justice," the practice of law, like other professions, affords opportunities for morality and immorality.
