I have written several pieces in The Ethical Spectacle which deal with the issue of the engineer who solves homicidal problems in a moral vacuum, if not an active state of evil. In a piece about Auschwitz and human progress, I quoted a memo written by an engineer whose job was designing a more efficient way of gassing people in the back of a van:

[The memo] speaks of the inevitable "shifting" of the "cargo" towards the rear door, the necessity of draining "thick" and "thin" fluids, and so forth. Here we find a very typical work of civilization--the solution of a difficult problem in a moral vacuum, where the result, disguised beneath a technical or bureaucratic vocabulary, is the murder of human beings.

In a later essay on bomb thinking, I analyzed the mentality of the engineer who designed the Vietnam-era bomb which shot little steel arrows in all directions, and went on from there to discuss the physicists and politicians who design "tactical" and "strategic" nuclear solutions. In an issue devoted to a single long essay on technology and morality, I argued that we too easily equate technological and moral distinctions, eg, that killing 100,000 people with incendiary bombs from the air is more morally acceptable than rounding them up and shooting them in a pit. I based the prevalence of these false distinctions on the way we merge with our tools, and the new vocabularies we adopt when we do:

We merge with our tools. It is quite natural, because they are extensions of ourselves. Our language betrays it; how many nouns have we created merging man and tool: gunman, busman, trainman, wingman. While it is idle to blame the tool and leave the human out of it (the NRA does have a point here), the human you are holding responsible likely has merged with a tool. And we want to use what we have. Horses never have a desire to use hands. Humans, like other animals, experience the world by manipulating it with the tools they have available. Dogs manipulate by biting; gunmen shoot. The gun induces the brain to divide the world into people who may be shot, and people who may not be. Possession of nuclear weapons induces us to want to use them, even to create harbors in Alaska.

From this perspective, law is a technology and lawyers commit the same errors as engineers. Lawyers, as Justice Cardozo pointed out seven decades ago, are social engineers.

In another essay in this issue, I pointed out the similarities between law and software development. In both cases, we are building a structure to solve a problem. In the law, as in any other kind of engineering discipline, the power to solve problems is intoxicating and leads to a suspension of moral judgment. Instead, as with other technologists, lawyers too easily assume that anything that can be done should be done.

I subscribe to a list called Cyberia-L, where lawyers debate new developments in computer law. Now, as legal disciplines go, computer law is a pretty clean one; you are not dealing with issues like how to assist your client in dumping hazardous wastes, or busting unions. Nevertheless, computer law, like any other legal field, has moral implications, which the lawyers on the list, some of them quite famous and well-respected, typically ignore in their chatter.

For example, a frequently debated issue on the list is the circumstances under which a link from your Web page to someone else's might constitute a copyright infringement (or a contributory infringement, a related form of liability.)

A very typical and lawyerly answer to this question is: "If I wanted to try and hold someone liable for a link, I would argue that...."

Now, the question of whether you should try to impose legal liability for linking, or what the social consequences for the development of the Internet would be, never come up in this kind of answer. In fact, a link on a Web page can best be analogized to a footnote on a paper page. I am referring you somewhere, to look at something else; I am not publishing it, let alone endorsing its contents. But it is not part of the attorney's mental methodology to put the question in context when asked a legal question. Though the law permits many immoral things--law and morality are not, and of course should not be-- attorneys are only concerned, at least as a matter of first instance, with what the law does or does not permit.

Now, the people on Cyberia-L are mainly very good people, but it would be refreshing to see a few more answers along the lines of "it is destructive of the Internet to impose liability for links," rather than "here's how to do it if you want to do it." Come to think of it, I've seen more of a moral response to requests for information on Usenet lists devoted to explosives than it would be typical to see on Cyberia-L.

As there is with everything, there is a flip side to the argument that morality should form part of the methodology of legal analysis. In the Stalinist show trials, it was common for the defense attorney to savage his own client on moral grounds and call for his destruction. But that is not what we are talking about here. Certainly, as the canons of legal ethics dictate, we are responsible for the zealous representation of our clients. But no-one forces us to take them on, nor, once you represent someone, are you legally obligated to do everything they ask. As an attorney, I wouldn't represent someone who wanted to destroy or forge evidence, nor would I even answer questions about the chances of getting caught. There is no moral distinction between declining this sort of gambit and refusing to take a case that you believe will advance a harmful rule or break a good one.

As attorneys, we make excuses that we are simply contributing to a dialectical process and that the truth will out. Translated into plain English, this says, "I am free to advance a bad rule, because if it is truly bad, the judge will not accept it." In a perfect world this would be true; but we all know that judges are human; some are ignorant and others insufficiently attentive to the subject matter (especially if it is technological). The scheme of regulation of radio, which began with the little-remembered massacre of public radio stations in the 1920's was designed and implemented by attorneys; it is a mistake uncorrected after six decades.

As lawyers, by abdicating our own responsibility for moral decisions, we can make mistakes that will be costly to others and that may never be corrected. Our terrible reputation with the public is largely caused by the fact that we are social engineers acting in a moral vacuum. Most people respect a government official who resigns on principle, like the attorney general refusing to fire the Watergate special prosecutor. If more lawyers refused to do things on principle, looking at the larger social picture and calculating the consequences, this reputation would no longer be deserved.

In simpler words: lawyers should simply act like members of the larger community in which they live.