法学院应当传授职业责任、职业美德,抑或其他——评《卡内基律师培育报告》(上)

Should Law Schools Teach Professional Duties,Professional Virtues,or Something Else——A Critique of the Carnegie Report on Educating Lawyers

随着《卡内基报告》的发布,法律职业主义教育之话题再次引起热议。基于法律与道德的二分,法学教育的学徒制只注重传授法律推理之技巧,而缺乏对道德与伦理等议题的关照;这混淆了以合法方式实现客户之利益以及该行为本身的道德价值,引发了有关法律伦理的争议。故此,报告呼吁法学院增加对律师职业伦理培育的投入。但这并非意味着对当前法学教育进行全面改革,相反,只须在教学之中并举分析方法(抽象的理论性知识)和道德考量(具象的实践性知识)。因为规则并非中立之物,而法律推理之中也业已嵌入了对社会和道德因素的考量。所以,法学教育的当务之急在于培养法科学生批判性认知法律教义的能力,促使其掌握法律实践之技艺,并理解该技艺所追求的品格特征之标准,进而转变为从业者。诚然,将以美国司法部法律顾问办公室律师的刑讯逼供建议为例,进而廓清法律伦理之内涵,并最终揭示法学院为培育律师而应传授之内容。

With the publication of Carnegie Report, legal professionalism,as one of the major topics of legal education,has become hot again. Based on the division of law and morality, the apprenticeship in legal education only focuses on the teaching of legal reasoning, but lacks the concern of issues such as morality and ethics, which confuses the realization of the customer’ s interests in a legal way and the moral value of the act itself. Such a phenomenon raises the controversy about legal ethics.Therefore, the report calls for law schools to increase their concern and investment in the cultivation of lawyers’ professional ethics. But this does not mean a comprehensive reform of the current legal education. On the contrary,it is only necessary to combine analytical methods( abstract theoretical knowledge) and ethical considerations( specific practical knowledge) in teaching. Because rules are not neutral, and the consideration of social and moral factors has been embedded in legal reasoning. Therefore,it is the urgent task of legal education to cultivate law students’ ability to critically recognize legal doctrines,to promote their mastery of legal practice,and to understand the standards of character traits pursued by the art, and then to practice as practitioners. It is true and can be demonstrated the relationship between legal ethics and universal morality, and the constitution of a true practitioner by the example of the suggestions on torture in interrogation by the Office of the Legal Adviser of US Department of Justice.