The following appeared in Volume 98, Number 1 (Fall, 1998) of the APA Newsletters

In his recent book on loyalty, George Fletcher eschews or at least marginalizes the idea of professional loyalty. He claims that in its core sense loyalty has to do with obligations that arise out of our "being historically rooted in a set of defining familial, institutional, and national relationships."¹ Loyalty involves a commitment to the constitutive sources of our historical being, to those relationships and communities that define us as the particular individuals we are – not just as generic persons, but as members of particular familial, ethnic, religious, and national groups. Such core loyalties, he says, are not to be confused with the secondary loyalties that lawyers owe their clients, that physicians owe their patients, or that corporate managers owe their firms. The latter, he argues, "derive solely from contract, from voluntary commitments, not from an historical self." (Fletcher, 22)

Many questions are prompted by this account. There are questions about Fletcher’s implicit distinction between an historical and a universal self, and his embedding of loyalty and its obligations in the historical self. There are questions about the link between loyalty and self-definition. More radically, there are questions about the status of loyalty itself – whether it is a virtue to be valued and fostered and, if so, the limits that should be placed on it. We might wonder, moreover, once we have worked out what professional loyalties are, whether they are as marginal as Fletcher makes them out to be – whether the distinction between loyalties that derive from voluntary commitments and those that are integral to the historical self will stand scrutiny, and whether, in cases of conflicts between professional and other loyalties, professional loyalties ought to give way. And so we could go on.

Unfortunately, we cannot ignore these questions; nor can I address them adequately within the compass of this article. The literature on loyalty is not well enough developed to enable us to take any particular conclusions for granted and I must therefore scurry through several ethical and conceptual minefields.

As Fletcher’s own allusions suggest, such literature as there is on professional loyalties focuses in the main on the loyalty of lawyers to their clients and doctors to their patients. Along with these he includes the loyalty of corporate managers to their firms – though I believe that there is reason to keep this organizational loyalty, as I would refer to it, distinct from professional loyalties.

It is Fletcher’s view that "professional loyalty is expressed in the intensity of care and attention [shown] to the client or patient."² So understood, professional loyalty is often said to be central to the lawyer-client or doctor-patient relationship. Geoffrey Hazard, for example, writes that "[i]n the relationship with a client, the lawyer is required above all to demonstrate loyalty,"³ a point in which he is followed – with somewhat greater cultural sensitivity – by Charles Wolfram: "Whatever may be the models that obtain in other legal cultures, the client-lawyer relationship in the United States is founded on the lawyer’s virtually total loyalty to the client and the client’s interests."⁴ And on the medical front, in his classic work, The Patient as Person, Paul Ramsey self-consciously makes use of a quasi-religious covenantal metaphor in characterizing the relationship between doctor and patient. Central to that covenant are what he refers to as "canons of loyalty," chief of which is the existence, on the part of the patient, of a "reasonably free and adequately informed consent" to medical procedures undergone by that patient.⁵ On this view, loyalty to patients makes their informed consent a prerequisite to any medical intervention.

Such professional loyalties are often held to be, if not absolute, then very nearly so. The legal locus classicus is Lord Brougham’s famous defense of Queen Caroline against George IV’s accusation of her adultery:

Lord Brougham’s ominous last sentence was intended to be seen by the King as a veiled threat that Brougham would bring into the open the King’s secret marriage to a Catholic, an arrangement that would have required that he give up the crown, and so would have thrown the country into confusion.⁷ In medical ethics, likewise, one frequently finds a preoccupation with the grammar of consent – whether actual, anticipated, prior, subsequent, hypothetical, substituted, or proxy – as an essential precondition for legitimate treatment.⁸

What informs this account of professional loyalty as loyalty to clients or patients? For most of those who defend it, such loyalties are grounded in a recognition of the dignity of clients/patients – in a recognition that clients and patients are fundamentally autonomous beings. They are beings with a capacity to frame for themselves the choices they make, the paths they tread, and the goals they pursue, a capacity that they share with others, and which gives them an equality of standing with others as well as certain prerogatives with respect to decisions that concern themselves. On this view, lawyers’ and doctors’ loyalty to clients/patients requires them to serve the interests of their clients and patients as their clients and patients see those interests: they are to maintain confidentiality as they do whatever they professionally can, at whatever cost they incur, for those whose agents they are.

Up until now I have done no more than articulate a common and almost unchallenged understanding of professional loyalty – one involving loyalty to client or patient. But it does not stand completely alone. There is a second, often unspoken and different account of professional loyalties – one that sees such loyalties as holding between the members of a particular profession. Lawyers and doctors must be loyal to each other. They constitute a filial Bund or community whose members can be expected to support and, if necessary, favor each other professionally. Professional courtesies may be part of that; as may be the reluctance that doctors and lawyers show in testifying against each other.

Nowhere is this horizontal understanding of professional loyalty more clearly illustrated than in policing.⁹ The culture of policing is deeply permeated by horizontal loyalties – the determined loyalty of operational officers to each other, a loyalty in which, as Egon Bittner puts it, "the governing consideration" is that "as long as ‘one of us’ is in peril, right or wrong, he deserves help."¹⁰ This is the loyalty that often makes for police heroism and that drives the code of silence.

Informing such loyalty to fellows is a sense of interdependent community, one that promotes a solidarity necessary and sometimes sufficient to shield its members against external threat and misunderstanding. In the case of police, the bonds are said to be forged and required by a complex, uncertain, and dangerous task. Working as they do on the edges of, and on occasion beyond the bounds of, civil society, police are exposed to grave threats to their psychological and physical well-being. It is essential that they be able to rely implicitly on those with whom they work in order to accomplish their unpredictable yet socially valuable tasks. Since often there will be no time for making subtle discriminations or for arguing the toss about whether a particular way of doing something is best, or even legitimate, a broad latitude and the unhesitating support and loyalty of others may be necessary for accomplishing the noble ends of police work – even, that is, when what is pragmatically justified are deviant means.

I believe that if we account for professional loyalties in either of the two foregoing ways – as loyalty to clients or loyalty to fellows – then it is not difficult to see how Fletcher is able to marginalize them. For these objects of loyalty do not seem to have the self-defining importance that Fletcher ascribes to other loyalties. Moreover, although all loyalties, as attributes of the historical self, are partisan, these loyalties seem to be partisan in ways that will often be disruptive of larger social values.¹¹

What I would like to propose is an alternative account of professional loyalties, one that can be located within a professional ethic and at the same time also within a larger account of loyalty as a central human virtue. My alternative is very simple, which is not to say that it is unproblematic. Nevertheless I believe that it coheres nicely with current attempts to construct ethical standards appropriate to the professions. I want to argue that the object of professional loyalty is to be located first and foremost in the defining ideals and technical aspirations of the profession in question. And I want to claim that other loyalties, such as those to clients and fellow professionals, are at best derivative, constrained by loyalty to the ideals and aspirations that give the profession its raison d’être.

The story has been told, and has now been told quite often, of events that took place the day before the space shuttle Challenger disaster. On that day, Robert Lund, who was Vice-President for Engineering at Morton Thiokol, the firm that manufactured the O-ring seals that were located in the joints of the solid rocket boosters, had presided over a meeting of engineers at which they had unanimously recommended that the shuttle not be launched. In their professional judgment, the temperature at the launch site would be well below that of the known safety range for the seals and, because of known low temperature corrosion, there was a risk that they would leak and that an explosion would occur. As an engineer, and one of a group of concurring engineers, Lund felt that his loyalties should lie with the standards of his profession. But the refusal to approve the launch was strongly resisted. The Space Center felt that there was some urgency about the launch. There had been significant delays in the space program; there were grumbles from Congress about the program’s funding; and the President wished to mention the launch in his State of the Union message the following evening. So the Space Center put pressure on Lund’s boss, Jerald Mason, a Senior Vice-President for Morton Thiokol, to get Lund to change his mind. At first Lund resisted, but then Mason is said to have told Lund: "Take off your engineering hat and put on your management hat." Lund did, and the rest is known and well-publicized history.

I would characterize what happened in this case as a forsaking of professional loyalties for organizational loyalties, or, less charitably, as caving in to pressure. In this case the primary focus of loyalty – at least as it initially represented itself – appeared to be neither the client nor fellow professionals but certain professional standards. They were, however, shared rather than individual standards, and married technical knowledge and expertise with larger social values and purposes – such as safety, health, and welfare – values and purposes to which engineers are expected to devote themselves. It is some such conception of professional loyalty that I wish to defend.

Now that I have laid my cards on the table, I want to sketch in some of the larger gaps in my play. I need to say something about professions, professional ethics and the place of loyalty in the professions. Professions tend to be privileged occupations. They serve broad and important social ends – such as health, well-being, public safety, education, and justice. Serving those ends in the manner in which the professions are expected to do generally requires extra-ordinary knowledge and skill, and members of the professions normally undergo a significant educational preparation. Very often there is a considerable public investment in providing the infrastructure for professional education and training. Members of the professions generally have some kind of exclusivity with regard to the services they offer, and as well they probably exercise significant control over the monitoring of their provision of those services. In many cases they are well remunerated for the services they provide.

But for the various privileges of professional life, there are certain social expectations. It is expected that professionals will offer a consistently high level of service, that their motivation in providing their services will be the good provided to others and not merely economic gain for themselves, that they will evolve and maintain high technical standards, and that appropriate ethical standards will be observed in their provisions of service. Central to the professions is a professional ethic. This ethic is necessitated by several factors, including the social importance of the service provided, the public trust that must be placed in those who provide such services, the privilege of exclusive provision, and the social investment that is made in professional education.

Professional ethics are structured by the ends, purposes, or ideals that drive the profession and the technical and delivery standards that need to be observed if the public trust vested in that profession is to be sustained. They are not simply ethics-in-general. As Lon Fuller puts it, any draft of a code of professional ethics "must contain a sense of mission, some feeling for the peculiar role of the profession it seeks to regulate. A code that takes the whole of right and wrong for its province breaks down inevitably into a mush of platitudes."¹² Even though a professional ethic must find its ultimate justification in the broader arena of common morality, its own provisions will be governed by the narrower concerns of a particular role and service.

To understand the place of loyalty within a professional ethic, we need to say something about loyalty as a virtue, and the obligations that it entails. Let us accept for the moment the view that loyalty is an executive virtue or "virtue of the will,"¹³ like conscientiousness and industriousness, and that it, like them, stands "at a point at which there is some temptation to be resisted or deficiency of motivation to be made good."¹⁴ To understand what that point is, for loyalty, I suggest that we look first at those more general contexts in which loyalty is found and fostered – those familial, institutional, and national relationships that Fletcher considers to be core contexts for loyalty. I do so, not because I accept Fletcher’s distinction between core and marginal, or even accept without question what he includes in the core, but because the loyalties he has in view valuably illustrate both the importance and limitations of loyalty.

To understand the value of loyalty in human life, we need to acknowledge our interdependence – the connectedness of our lives and the activities that characterize us as humans. Human survival and development is characterized by lengthy dependence and structured learning. The characteristic marks of human personality – such as speech, rationality, and moral sensibility – are acquired to an acceptable level only in the context of a reasonably rich and predictable social environment. The same can be said of the characteristic activities of human beings – work and play, scholarship and worship, creativity and criticism. Our human identity is socially constructed and socially structured.

Our individual identities – what Fletcher refers to as our historical selves – are even more narrowly constructed. Individually, we do not grow up to be generic persons, but as members of particular families, as speakers of particular languages, as citizens of particular states, as inheritors of a particular culture and traditions, as friends with particular people, as occupants of particular social roles, and so on. All these particular relations, traditions, and roles may and generally do become "ours" not only in the sense that we have them, but in the more deep-seated and constitutive sense that we conceive of ourselves in terms of them. They are not simply general facts about us, as is the fact of our being members of the species homo sapiens, or even specific facts about us, as our having large feet or shortsightedness may be. Rather, they are things that can be represented as partially constitutive of our particular individuality – as features with which and by which we identify ourselves.

It is in the realm of these constitutive relations, commitments, environments, traditions and values that many of our most central loyalties are located.¹⁵ And the role that our loyalties play in these contexts is as bulwarks against the ravages of self-interest and private vision – the temptations to pursue personal and private advantage or an individual agenda at the cost of these constitutive relations, commitments, and so on. Loyalty preserves us in our central commitments to others, to our causes, or to our principles, despite the personal inconvenience or even the risk that this may involve.

I now want to make two suggestions: first, that professional roles frequently rise to the level of being constitutive elements in a person’s identity; and second, that professional loyalty is to be construed first and foremost as a commitment to the defining norms and accepted standards of the profession in the face of temptations to forsake them for reasons of personal advantage or private vision.

There is generally more to becoming a professional than taking on a particular job. Becoming a professional has various dimensions. It involves membership in a community of fellow professionals and socialization into a set of values and practices – ways of looking at and doing things – that become significant for one’s identity. And within these processes of membership and socialization one generally acquires loyalty to the norms that are constitutive of the profession. Such loyalties are far more significant than those which Fletcher seeks to marginalize.¹⁶ By focusing as he does on what are in effect derivative or secondary loyalties, he makes professional loyalties appear more problematic and insubstantial than they actually are.

Although Fletcher does not himself espouse the tradition of loyalty to clients in the extreme form represented by Lord Brougham, he nevertheless does accept that a lawyer’s professional loyalties are to clients, and his own point of departure is Charles Fried, who, with Brougham, adopts a "pure advocacy model" of legal representation, in which the lawyer’s will is subordinated to client interests.

But not only does this provide a one-sided account of a lawyer’s loyalties to clients, it also mischaracterizes the primary focus of a lawyer’s professional loyalties. On the one hand, it tends to ignore or minimize the very significant constraints that are imposed on the lawyer as a servant of the court. A lawyer’s loyalty to his or her client cannot be seen as countenancing illegality on the part of the lawyer. It does not allow the lawyer to suborn the perjury of the client or witnesses, or to destroy incriminating documents, or to threaten prosecution witnesses. Nor does it require that the lawyer represent the client on matters unrelated to those initially agreed to. As Fletcher quite properly recognizes, a lawyer’s loyalty to clients, though significant, is limited.

On the other hand, and more importantly, proponents of the pure advocacy model (and Fletcher) fail to appreciate the significance of lawyering as a profession, and the significance of the constraints on loyalty to clients as elements of a larger conception of the lawyer as a professional. A professionalized conception of lawyering views the legal system and its representatives as creatures of a public trust, designed to ensure or at least contribute to fairness and order in human affairs. The various factors that make up the system – rules of procedure, diversity of roles, qualifications for representation, and so on – are to be understood and judged as contributions to that larger design. To the extent that they fail to sustain an ordered fairness, to that extent they are subject to criticism and review. The lawyer is also a servant of the public.

I would, therefore, want to argue that Lord Brougham’s remark that the "advocate. . . knows . . . but one person in the world, [his] client and none other" shows a fundamental misunderstanding of the profession of law. His view of client loyalty, one that "does not regard the alarm, the suffering, the torment, or the destruction which [the advocate] may bring on any other" makes "hired guns" of lawyers; it does not elevate the profession as much as diminish it and bring it into disrepute.¹⁷

I am not denying that there is a proper place for loyalty to clients within a larger conception of the lawyer’s role. But it is a loyalty to clients that finds its primary justification and boundaries in loyalty to the wider norms and purposes of the legal system. It is to these that one owes one’s primary loyalty as a professional, and other loyalties need to be subsumed under or moderated by that larger loyalty.

David Luban has done much to illuminate this connectedness of the lawyer’s role with the legal system in his detailing of what he calls a fourfold root of sufficient reasoning. This justificatory strategy is designed to show, by means of a progressive series of questions, how the various practices of the profession – including the practice of client loyalty – need to be accounted for, justified, and, if necessary, limited. (Luban, 129-33) Particular acts of advocacy need to be justified by appeal to larger role obligations, such as the duty of zeal. In turn the duty of zeal has to be supported by appeal to the role that demands it. The advocate’s role needs to be defended by its place in an adversarial system. And the adversarial system itself has to be justified by direct argument – that is, by reference to the larger social values that the adversarial system is intended to secure. This strategy does not rule out zealous advocacy, but the "zeal" cannot be construed and displayed as though there is a justificatory vacuum. Nor, if justified, should it be thought to be unconstrained. The O.J. Simpson trial, whatever the merits of the final outcome, was an expensive example of what happens when participants in the system focus on tactical advantage rather than on the securing of just outcomes.¹⁸

The point I am making here is that a professional ethic of legal representation needs to appeal ultimately to the profession’s overarching norms, and that it is to these shared norms that the lawyer owes his or her primary loyalty. Loyalty to clients is subordinate to that more fundamental loyalty. Lawyers owe a loyalty to their clients, in part to advance the aims of fair and rational decision making, but also because they may be tempted to serve more self-regarding interests. If we look at professional loyalties in this way, then I think we can also see how such loyalties may represent something that is partially constitutive of the identity of the professional whose loyalties they are.

How strong is the claim that professional loyalties have on us? Everyone who writes generally about loyalties acknowledges that they may be very demanding. Loyalty and some form of self-sacrifice are closely associated. Some writers – with reason – have suggested that the self-sacrificing demands of loyalty may well include the sacrifice of integrity. It is for this reason that the jingoistic proclamation of "my country right or wrong" is often taken as illustrative and, indeed, as a reductio of the demands of loyalty. My own view, however, is that "my country right or wrong" says as little about the demands of loyalty as "let justice be done though the heavens fall" says about the demands of justice.¹⁹

Professional loyalties may sometimes have to compete with other loyalties and, as with other conflicts of loyalty, their claims will sometimes be stronger and sometimes be weaker. The claims of professional loyalty have no special priority or inferiority.

Nevertheless, we should recognize that appeals to professional loyalty will be only as strong as the values and technical expertise that give shape to the profession. Although we may believe – perhaps too readily – that the traditional service professions have little to fear on this account, the movement towards professionalization that has occurred in many occupations should give us some pause. We should not assume that what has achieved, or is gaining in, prestige is worthy of its pretensions.

As a graphic illustration of this, more powerful because of its remoteness, we might consider the case of Charles-Henri Sanson, who was the executioner of Paris from 1778 to 1795.²⁰ Sanson’s tenure covered not only the Revolution but also the period known as the Terror. A noteworthy feature of his career was the fact that despite the turnabouts of that turbulent period – turnabouts which had Sanson executing those for whom he had previously carried out executions – Sanson himself survived the upheavals virtually unscathed. A major factor in this seems to have been his complete and utter professionalism – his belief that the task of an executioner was a publicly responsible one that needed to be approached with dedication and a commitment to serving the cause of public order as efficiently as possible. The record shows that Sanson took as much professional care and pride in his work as executioner as any surgeon might.

Moreover, Sanson viewed what he did in the larger context of social good. He saw himself as a servant of law and order, a dike against the pressures of mob and other forces of social disruption. In every aspect of his work, Sanson was concerned to ensure that the due processes of the prevailing law were carried out in a manner compatible with the maintenance of political security and stability and the avowed purposes of public execution.

Yet it does not take too much to ask whether the larger purposes he served were worth serving or, if so, were well served through the services rendered by his profession. Even if Sanson’s role was sustained by an appeal to law and order, it doesn’t follow that that appeal was appropriately and best served by activities of his kind. We need to ask whether the larger purposes of law and order justified execution and, if so, whether it was justified in the particular cases in which it was prescribed, or at least under the administration that would be making such determinations. These were not questions to which Sanson addressed himself. Yet they were questions he should not have ignored. Even for a professional, concerned not to corrupt the implementation of social policy with idiosyncratic determinations, there must be a way of asking such questions and, even if not answering them, showing that they give one pause.

Arthur Applbaum, on whose account of Sanson I have relied, uses the example of Sanson to call into question the pure advocacy view of lawyering, the view that one must be loyal to clients no matter what. But I think it may also be used more radically to call into question the rationale for what presents itself as a profession, and claims practitioner-loyalty to its norms. I suspect, however, that professional loyalties are hardly more vulnerable or secure than the core loyalties identified by Fletcher. Although it is unlikely that our flourishing will be possible if we eschew all friendships, familial, group and national loyalties, there is surely space for reviewing and maybe even abandoning some of them.

If, as I believe, loyalty is to be seen as a virtue with a weight of its own, it is only because its objects are believed to embody something of worth – relations, associations, institutions, traditions, and forms of service deemed to be of value. To the extent that we find out otherwise, to that extent the foundations of our loyalty are shaken and our obligation to remain loyal can be called into question. Loyalties may be lost or forfeited because their objects are no longer able to embody the values that invested them with value.²¹

I want to conclude by commenting briefly on just one of the various objections that may be raised against my account. The objection deserves more treatment than I can give it here, because it arises more generally from a discussion of loyalty.

The objection concerns the possible objects of loyalty – and particularly whether the constitutive aims of a profession, its norms, the social values it serves, and standards of competence it upholds, might count as proper objects of loyalty. I have assumed that loyalty may have a great many different kinds of objects – principles, causes, ideas, ideals, religions, ideologies, nations, governments, parties, leaders, families, friends, regions, racial groups – indeed, as Milton Konvitz puts it, "anyone or anything to which one’s heart can become attached or devoted."²² I have assumed, therefore, that loyalty may have as its object something as seemingly abstract or impersonal as the constitutive aims or standards of a profession. But this has been strongly challenged by some who have written on the topic, and there is, moreover, something in our intuitive understanding that gives substance to this challenge. The contention is that loyalty can properly have only personal objects – whether they be individual persons or personal collectives such as one’s family or national group.

John Ladd, for example, claims that "in our common language, as well as historically, loyalty is taken to refer to a relationship between persons," either individually or collectively. (Ladd, 97) And Marcia Baron agrees: "Loyalty [is] to certain people or to a group of people, not loyalty to an ideal or cause. . . . When we speak of causes (or ideals) we are more apt to say that people are committed to them or devoted to them than that they are loyal to them."²³ If Ladd and Baron are right, then any talk of professional loyalties will, contrary to what I have been claiming, be most plausibly seen primarily as loyalties to clients or patients and not to defining norms or other such abstractions.

There is something intuitively plausible about the view that loyalties are to persons. Not only are most of our core loyalties – loyalties to members of our families, to our friends, and even our religious and our national loyalties – also loyalties to people, individually and collectively, but when push comes to shove they also seem to be our strongest loyalties. As police managers know all too well, those who press for police to place their loyalty to ideals or even to the organization above their loyalty to partners or fellow officers often seem to be engaged in fruitless admonition.

Let me try to defend my stated position. But to do so I want to concede what I think is correct about the complaint. I have no doubt that relationships provide the original context for the expression of loyalty (as they provide the appropriate context for morality generally²⁴). Personal associations – with family, friends, and cultural group – constitute the milieu for our development and flourishing as the particular humans we are, and loyalty to these will naturally develop as a commitment to the personal and communal sources of our identity and well-being. But implicit in this loyalty, there will be the presumption that the objects of these associations embody values that are themselves contributory to those associations.

But sometimes the others with whom we are joined fail or cease to realize the values that would make association with them the valuable or valued thing it should be, and we are forced to reconsider our loyalty. Our nation may show itself to be discriminatory or improperly aggressive toward others; a parent may abuse a child or a husband a wife; a friend may violate unspoken but expected norms. When these things occur, we realize that although our loyalties are particular, the particulars who are the objects of our loyalty are appropriate objects of that loyalty only under certain descriptions. It was the abject failure of the personal objects of their loyalty to embody the qualities of character – the values – that would sustain that loyalty that led medieval writers to distinguish between loyalty to an office and loyalty to the king. The distinction was intended to undercut the charge of subversion – the allegation that anyone who challenged the king would ipso facto rip apart the fabric of society. On a more contemporary note, Donald Schultz’s dedication of his anthology on policing "to those Police Officers Whose first Loyalties Are to Principles, not Men" captures the same point.²⁵

And so, though I think that professional loyalties might have been been initially construed as loyalties to patients, clients and others, the failure of the reality to match whatever expectations may have been embodied in the object of the loyalty has led, here as elsewhere, to a conception of loyalty which approximates Royce’s conception of "chosen causes," in which individuals are united with others "by some social tie."²⁶ For the defining norms and standards of a profession – the primary objects of professional loyalties – are neither the constructs of an individual consciousness nor Platonic universals, but the shared, values, aspirations and expectations of a community of dedicated service providers.

Whether or not particular occupations make it into the category or achieve the status of professions, the development of a professional ethic – an ethic of professionalism – is increasingly important in societies that are becoming more complex and depersonalized, where trust is easily betrayed and important interests are at stake in our dealings with service providers. In that context, it becomes a significant task to foster in those in whom our trust is vested a commitment – a loyalty – to the best that what they profess can offer, and that they – like the medieval discontents who saw in an unquestioning loyalty to the sovereign a dangerous challenge not only to their integrity but also to the peaceable order to which kingship was supposedly devoted – will give their first loyalty to the communally sustained ideals of their profession, and see whatever other work-based loyalties they come to have as expressions of that primary loyalty.

1. George Fletcher, Loyalty: An Essay on the Morality of Relationships (New York: Oxford University Press, 1993), 21.

2. Ibid., 23. Intensity may not be the best term to use, for it conveys the somewhat misleading idea of emotional commitment or devotion. The confusion is understandable because, at least in the American legal tradition, the loyalty of lawyers to their clients has usually been expected to involve "zealous advocacy" of their clients’ interests. Moreover, loyalties often are accompanied by intense devotion to their objects. A better term is resoluteness, that is, advocacy that will not be turned aside by any competing interests (especially self-serving ones) that the lawyer may have. Fletcher recognizes the point, but tends to conflate the two ideas.

3. Geoffrey C. Hazard, Jr., "Triangular Lawyer Relationships: An Exploratory Analysis," Georgetown Journal of Legal Ethics, 1 (1987), 21.

4. Charles W. Wolfram, Modern Legal Ethics (St. Paul, MN: West Publishing, 1986), 146.

5. Paul Ramsey, The Patient as Person: Explorations in Medical Ethics (New Haven: Yale University Press, 1970), 2-5.

6. J. Nightingale, ed., Trial of Queen Caroline (London: J. Robins & Co., 1820-21), Vol 2, 8. It is interesting to reflect on Lord Brougham’s last sentence – on his willingness to bring the country down out of loyalty to his client – and to link that with Stephen Decatur’s famous toast at Norfolk: "My country, may she be always in the right; nevertheless, my country right or wrong." Critics of loyalty have often complained about what they see as a destructive absolutism about loyalties. Commentators on the akedah – the binding of Isaac – have often wrestled with the same problem.

7. See David Luban, Lawyers and Justice: An Ethical Study (Princeton, NJ: Princeton University Press, 1988), 55.

8. This ragbag is illustrative of the need felt to provide some consent-basis for medical interventions.

9. I leave aside the problematic issue of whether policing should be counted a profession; at least it often aspires to be.

10. Egon Bittner, The Function of the Police in Modern Society: A Review of Background Factors, Current Practices and Possible Role Models (Washington, DC: National Institute of Mental Health, 1970), 63.

11. I think that this may also be true of Fletcher’s core loyalties, albeit not if they are moderated by other loyalties and values.

12. Lon L. Fuller, "The Philosophy of Codes of Ethics," in Bernard Baumrin & Benjamin Freedman, eds., Moral Responsibility and the Professions (New York: Haven Press, 1984), 83.

13. Robert C. Roberts distinguishes "virtues of the will" from "substantive and motivational virtues," allowing that the former, but not the latter, may be essentially corrective. See Robert C. Roberts, "Will Power and the Virtues," Philosophical Review, 93 (April, 1984), 227-47.

14. Philippa Foot, "Virtues and Vices," in Virtues and Vices (Berkeley, CA: University of California Press), 1978, Sect. II.

15. To that extent, I think Fletcher is right about the connection between loyalty and the "historical self." Other writers – e.g. John Ladd – have tried to make something of a conceptual point of this. Ladd writes that it is "conceptually impossible to be loyal to people in general (to humanity) or to a general principle, such as justice or democracy" ("Loyalty," in Paul Edwards [ed.], The Encyclopedia of Philosophy [New York: Macmillan & The Free Press, 1967], Vol. V, 97).What is correct about this is that any talk of our loyalty to them will make sense only under a description that makes them ours. I may be loyal to humankind because I consider humankind to be my kind, a collectivity to whose aspirations I am bound or to which I have committed myself. It will, for example, make good sense to speak of my loyalty to humanity if I refuse to surrender it to an alien power. In Mary Wollstonecraft Shelley’s nineteenth century novel, Frankenstein, there is a scene in which Dr Frankenstein refuses his creature’s demand for a female companion:

I created a rational creature and was bound towards him, to assure, as far as was in my power, his happiness and well being. This was my duty; but there was another still paramount to that. My duty towards the beings of my own species had greater claims to my attention because they included a greater proportion of happiness or misery....I refused, and I did right in refusing, to create a companion for the first creature. (Pyramid Books, 1957, 187)

Although cast somewhat clumsily in consequentialist terms, what is really at issue here is a kind of species loyalty.

16. Fletcher’s distinction between the loyalties that derive from contract, from voluntary commitments, and those that derive from an historical self, tends to break down here. Although we voluntarily commit ourselves to some profession, there are generally various rites of passage associated with the achievement of professional status. Had Fletcher focused more on friendships and loyalty in marital relations than on familial and national loyalties, then the contrast would not have seemed so great. And, of course, we ought not to forget that even "naturally acquired" loyalties, such as loyalties to family and country, may – and probably ought to – become the object of our later reflection and reaffirmation or even transformation/rejection.

At this point I also take partial issue with R.E. Allen, who argues that a firm distinction should be drawn between loyalty and faithfulness or fidelity. Where the objects of loyalty have been chosen, Allen wishes to use the language of fidelity – reserving the language of loyalty for "keeping faith with that to which one has prior obligations" ("When Loyalty No Harm Meant," Review of Metaphysics, 43, 2 [December, 1989], 289, 288). I do not want to deny that a distinction between loyalty and fidelity can be drawn, but I do not think that this is the place to draw it.

17. Even in his own day, Lord Brougham was not without his critics. Remarked the Lord Chief Justice, Sir Alexander Cockburn: "My noble and learned friend Lord Brougham said that an advocate should be fearless in carrying out the interests of his client; but I couple that with this qualification and this restriction – that the arms which he yields are to be the arms of the warrior and not of the assassin. It is his duty to strive to accomplish the interests of his client per fas, not per nefas; it is his duty to the utmost of his power, to seek to reconcile the interests he is bound to maintain, and the duty it is incumbent upon him to discharge, with the eternal and immutable interests of truth and justice" (quoted in G.V. La Forest, "Integrity in the Practice of Law," Law Society of Upper Canada Gazette, II (1987), 42).

18. See, for example, Jeffrey Toobin, The Run of His Life: The People v. O.J. Simpson (NY: Random House, 1996); Lawrence Schiller & James Willwerth, American Tragedy: The Uncensored Story of the Simpson Defense (NY: Random House, 1996). Of course, it might be argued that such tactical struggles are just the way in which we maximize the likelihood of just outcomes. But I remain doubtful. The system is constantly manifesting inadequacies that need attention. And in response to some of those manifest inadequacies, changes are made. Tinkering with social practices is an ongoing affair.

19. Lest I be misunderstood, let me also say that "my country right or wrong" says as much about the demands of loyalty as "let justice be done, though the heavens fall" says about the demands of justice. The latter is intended to indicate that the demands of justice are weightier than the demands of expediency or utility (albeit, I would argue, not absolutely). The former phrase is intended to indicate that loyalty demands commitment and self-sacrifice (albeit, I would argue, not absolutely). The person who says "my country right or wrong" expresses a continuing commitment to country even if it is failing to realize the values that properly sustain loyalty. Provided that one has reason to think that the failings are correctable and one is also committed to assisting that correction, one may maintain one’s loyalty. Carl Schurz got it right when he wrote: "My country, right or wrong: when right to be kept right, when wrong to be put right" (address to Anti-Imperialistic Conference, Chicago, October 17, 1899).

20. My discussion draws heavily on Arthur Isak Applbaum, "Professional Detachment: The Executioner of Paris," Harvard Law Review, 109, 2 (December, 1995), 458-86.

21. This is one of the main themes of Albert O. Hirschman’s classic, Exit, Voice and Loyalty: Response to Decline in Firms, Organizations and States (Cambridge, MA: Harvard University Press, 1970).

22. Milton Konvitz, "Loyalty," in Philip P. Wiener (ed.), Encyclopedia of the History of Ideas (New York: Scribner, 1973), Vol. III, p. 108.

23. Marcia Baron, The Moral Status of Loyalty (Dubuque, IO: Kendall/Hunt, 1984), 6.

24. See Michael Stocker’s seminal paper, "The Schizophrenia of Modern Ethical Theories," Journal of Philosophy, 73, 14 (August 12, 1976), 453-66.

25. Epigraph to Donald O. Schultz (ed.), Critical Issues in Criminal Justice (Springfield, IL: C C Thomas, 1975).