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A Profession In Defence of Capital?*

Published online by Cambridge University Press:  18 July 2014

W. Wesley Pue
W. Wesley Pue
Affiliation:
Faculty of Law, University of Manitoba
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Type
Review Essays/Notes critiques
Information
Canadian Journal of Law and Society / La Revue Canadienne Droit et Société , Volume 7 , Issue 2 , Fall/automne 1992 , pp. 267 - 284
Copyright
Copyright © Canadian Law and Society Association 1992

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References

1. The influence of United States developments on the Canadian legal professions in what is also arguably their key formative period has—like so much of our history—never been systematically studied. One area in which a powerful influence from south of the 49th can be discerned is with respect to professional “ethics.” See Pue, W. W., “Becoming ‘Ethical’: Lawyers' Professional Ethics in Early Twentieth Century Canada” in Gibson, D. & Pue, W. W., eds., Glimpses of Canadian Legal History (Winnipeg: Legal Research Institute, University of Manitoba, 1991) at 237–77Google Scholar.

2. For an overview of some of the most influential scholarship in this genre see Pue, W. W., “Trajectories of Professionalism: Legal Professionalism after Abel” in Esau, A., ed., Manitoba Law Annual, 1989–1990 (Winnipeg: Legal Research Institute, 1991) at 57–92Google Scholar (reprinted from (1990) 19 Man. L.J. 384).

3. Halliday, T. C., Beyond Monopoly: Lawyers, State Crises, and Professional Empowerment (Chicago: University of Chicago Press, 1987) at 17Google Scholar.

4. Foster uses “American” here and throughout the book in reference only to the United States of America. The larger American context—which would include Canada, Denedeh, Cuba and Nicaragua amongst others—is never addressed.

5. Foster draws on the understandings of law as material practice developed by Fraser, A., “The Legal Theory We Need Now” (1978) 40/41Google ScholarSocialist Review and Klare, K., “Law-Making as Praxis” (1979) 40 Telos 123CrossRefGoogle Scholar.

6. These individuals are quoted or discussed in c. 4, “Legal Conservatives' Hobbesian Response to the Legitimation Crisis of American Capitalism” at 79–104.

7. Cross-Atlantic comparison is called for in this regard. In a major study of English professionalism, Perkin appears to come to a conclusion diametrically opposed to that of Foster: that “professionalism” is an ideology which constrains market forces and the prerogatives of property and wealth. Thus, in Perkin, H., The Rise of Professional Society: England since 1880 (London: Routledge, 1989) at 123CrossRefGoogle Scholar: “Between 1880 and 1914 the professional ideal took a further step, from ad hoc criticism of capitalist society to a series of organised assaults on the concept of absolute property. Most professional men were not opposed to private property as such … What they were opposed to was functionless, irresponsible property, not justified by some kind of service to society. This belief in what we shall call contingent as opposed to absolute property, that is, in property rights contingent upon the performance of some justifying service, was held by thinking members of the professional class right across the whole political gamut, from the most extreme laissez-faire individualists to the most extreme collectivists.”

8. These individuals are identified as legal progressives in c. 5, “Legal Progressives' Lockean Response to the Legitimation Crisis of American Capitalism” at 113–35.

9. Geertz, C., Interpretation of Cultures (New York: Basic Books, 1973) at 220Google Scholar as cited in Foster at 4.

10. On the British Marxist tradition of writing history “from the bottom up” see Kaye, H., The British Marxist Historians (Oxford: Polity, 1984)Google Scholar.

11. Contrast: “The location of the Gramscian concept of hegemony within the more classical categories of consensus as legal-political, as ideology (in the sense of subjection or class-inculcation) or as legitimation, results in a breaking up of the unity of the Gramscian problematic of consensus and a loss of its specific relevance. In fact, hegemony is reducible neither to ideology, nor to the approach of different modes of socialization. It is primarily a political principle and a form of strategic leadership, that is, a guide to political action, enabling the reformulation of the question of socialist transformation in the West.” Buci-Glucksmann, C., “Hegemony and Consent: A Political Strategy” in Sassoon, A. Showstack, ed., Approaches to Gramsci (London: Writers & Readers Publishing Cooperative, 1982) at 117–18Google Scholar.

12. Williams, R., Problems in Materialism and Culture (London: Verso, 1980) at 37Google Scholar, as cited in Foster at 13.

13. Laclau, E. & Mouffe, C., Hegemony and Socialist Strategy: Towards a Radical Democratic Politics (London: Verso, 1985) at 136Google Scholar.

14. Williams, Problems in Materialism and Culture: Selected Essays, supra, note 13 at 38.

15. Laclau & Mouffe do not, apparently, share this interpretation of Gramsci: “War of position supposes the division of the social space into two camps and presents the hegemonic articulation as a logic of mobility of the frontier separating them.” In any event, even this version of hegemonic contest—as opposed to imposition of hegemony—is one which they believe to be too reductionist: “…the existence of two camps may in some cases be an effect of the hegemonic articulation but not its a priori condition … This is the point where the Gramscian view becomes unacceptable… [T]he proliferation of these political spaces, and the complexity and difficulty of their articulation, are a central characteristic of the advanced capitalist social formations.” Hegemony & Socialist Strategy: Towards a Radical Democratic Politics, supra, note 13 at 136. It should be noted however that adopting a relational or historical/cultural approach to “class” renders the formulation of Thompson and Williams much less deterministic or reductionist than might at first seem.

16. Sayer, D., The Violence of Abstraction: The Analytic Foundations of Historical Materialism (Oxford: Blackwell, 1987) at 95Google Scholar.

17. Notably in “Patrician Society, Plebian Culture” (1974) 7 Journal of Social History 382CrossRefGoogle Scholar and “Eighteenth-century English Society: Class struggle without class?” (1978) 3 Social History 133CrossRefGoogle Scholar.

18. Genovese, E. D.Roll, Jordan, Roll: the World the Slaves Made (New York: Vintage Books, 1976)Google Scholar.

19. Kaye, H. J., The British Marxist Historians (Oxford: Polity Press, 1984) at 197Google Scholar.

20. Buci-Glucksmann, C., Gramsci and the State (trans. Fernbach, D.) (London: Lawrence and Wishart, 1980) at 57Google Scholar.

21. Hay, D., “Property, Authority, and the Criminal Law” in Hay, et al. ,eds, Albion's Fatal Tree: Crime and Society in Eighteenth-Century England (London: Allen Lane, 1976) at 17–63Google Scholar.

22. Buci-Glucksmann, supra, note 20 at 59.

23. Ibid. at 58.

24. Ibid. at 58.

25. Laclau & Mouffe, Hegemony & Socialist Strategy: Towards a Radical Democratic Politics, supra, note 13: “… we have moved away from two key aspects of Gramsci's thought: (a) his insistence that hegemonic subjects are necessarily constituted on the plane of the fundamental classes; and (b) his postulate that, with the exception of interregna constituted by organic crises, every social formation structures itself around a single hegemonic centre … [T]hese are the two last elements of essentialism remaining in Gramscian thought …” (pp. 137–38) “Hegemony is, quite simply, a political type of relation, a form, if one so wishes, of politics; but not a determinable location within a topography of the social. In any given social formation, there can be a variety of hegemonic nodal points.” (p. 139)

26. Harrington, C. B. & Yngvesson, B., “Interpretive Sociolegal Research” (1990) 15 Law & Social Inquiry 135 at 142CrossRefGoogle Scholar. Also at 142: “… law is found, invented, and made in a variety of locations (mediation sessions, clerks' hearings, welfare hearings, social movements, lawyers' offices, classrooms), through a variety of practices which are themselves ideological. Key symbols such as ‘neutrality,’ ‘community,’ ‘family trouble,’ ‘neighborhood disturbance,’ or ‘lovers' quarrel’ are produced in these practices rather than simply imposed by legal authorities or ‘brought into contact with one another’ through the agency of legal officials.”

27. “Table 2: Media of Subjection by their Effect of Ideological Domination” at 14 (adapted from Therborn, G., The Ideology of Power and the Power of Ideology (London: Verso, 1980) at 94Google Scholar.

28. Thompson, E. P., “The Peculiarities of the English” in The Poverty of Theory and Other Essays (London: Merlin, 1979) at 80Google Scholar.

29. For an elegant critique of reductionism developed in another context see Blomley, N. K. & Clark, G., “Law, Theory, and Geography” (1990) 11 Urban Geography 433CrossRefGoogle Scholar.

30. Cf. Paul, A. M., Conservative Crisis and the Rule of Law (New York: Harper & Row, 1969) at 4–5Google Scholar: “Two main streams of legal conservative thought could be distinguished: a laissez-faire conservatism, drawing heavily on the antipaternalism of Herbert Spencer and dedicated to the utmost freedom for economic initiative and the utmost restriction upon legislative interference; and a more traditional conservatism, which, while assigning the protection of private property to a high status in the hierarchy of values, was especially concerned with the problems of maintaining an ordered society in a world where the forces of popular democracy might become unmanageable.” As cited in Foster, 20, n. 33. For what purposes, it might be asked, does it make sense to denote both of these radically different views “conservative”?

31. Foster repeatedly characterizes Jacksonian democracy as being concerned only with “marginal” change. For example: “Jacksonian democracy was not concerned with social revolution. Its major emphasis, vis-a-vis the legal profession, was lowering barriers to entry so that more people could have the opportunity to participate in the practice of the law… Defining change in this marginal way foreclosed a thoroughgoing reconstruction in American society” (p. 35). “Rather than questioning the liberal-capitalist assumptions underlying American social reality, legal reformers, from the time of Andrew Jackson up to the present day, have taken them for granted, calling instead for a “better” vision of the status quo.… However marginal, antebellum reforms threatened the preeminent position of those lawyers at the top of the professional ladder” (pp. 35-36).

32. Here Foster quotes Wilson, W. in Report of the 33rd Annual Meeting of the American Bar Association (1910) at 420Google Scholar.

33. Such interpretations are brilliantly spoofed by Rock, P. in “The Sociology of Deviancy and Conceptions of Moral Order” (1974) 14 British Journal of Criminology 144CrossRefGoogle Scholar.

34. A useful though brief account of economism and its perils is found in Collins, H., Marxism and Law (Oxford: Clarendon Press, 1982) at 23ffGoogle Scholar. That Foster does tread near the edge of economism is overwhelmingly apparent in passages such as the following: “Since 1920, the legal profession's size and influence have grown commensurately with the material and ideological requirements of capitalism. … we will be governed by lawyers so long as we remain attached to the reign of capital mediated through the rule of law.” “Lawyers are powerful in this society because the private power that comes from owning and/or managing capital is facilitated and legitimized by means of legalized rules and rights” (p. 145).

35. Even major changes in “liberalism” are glossed over in Foster's account. Buci-Glucksmann identifies one such transformation which is suggestive of important themes in the development of professional culture in the U.S.A.: “The end of the nineteenth century and the beginning of the twentieth gave birth in fact to a ‘new liberalism’, one that openly proclaimed that there could be no question of trusting the masses, and that they should rather be guided by a political élite. The development of the workers' movement, the danger that it posed to the parliamentary hegemony of the bourgeoisie … led to a gradual disappearance of the more ‘democratic’ aspects of bourgeois liberalism, and the development of a ‘moderate’ liberalism, in fact a conservative liberalism quite ready in case of danger to accept a ‘strong state.’” Buci-Glucksmann, supra, note 20 at 49–50. Buci-Glucksmann attributes the phrase “new liberalism” to Kùhnl, R., Formen bürgerlicher Herrschafdt: Liberalismus, Faschismus (Reinbek, 1972)Google Scholar.

36. Foster's description of the case method is, perhaps, insufficiently sensitive to the reform politics which were sometimes embedded within it. Jerold Auerbach argues, for example, that “the case method, at the very least, encourages student skepticism toward judicial reasoning … In comparison with their practising brethren, the generation of teachers nurtured on the case method who came of age after the turn of the century was bent toward reform… Especially in the Progressive era, a time of reform ferment when Americans first tried to grapple with the problems that accompanied industrialization and urbanization, law teachers were distinguished by their sensitivity to the sociolegal implications of these problems.” Auerbach, J. S., Unequal Justice: Lawyers and Social Change in Modern America (New York: Oxford University Press, 1976) at 78Google Scholar.

37. Buci-Glucksmann, supra, note 20 at 56. Buci-Glucksmann continues: “Its ‘attraction’ for the allied (and even enemy) classes is not passive but active.” Not only does it not depend on simple mechanisms of administrative coercion, of constraint, but it is not even exhausted in the ‘mechanisms of ideological imposition, ideological subjection’ (Althusser), or in legitimation by symbolic violence (Bourdieu).”

38. Foster seems less aware that liberal democracy in the U.S.A. may be significantly different from liberal democracy in Europe, Canada, or Denedeh.

39. David Laycock's exemplary study of technocracy in Western Canadian populism of the early twentieth century provides a useful example of the virtues of work which is more attuned to the omnipresent contradictions of political and social vision: Laycock, D., Populism and Democratic Thought in the Canadian Prairies, 1910–1945 (Toronto: University of Toronto Press, 1990)Google Scholar.

40. Buci-Glucksmann, supra, note 33 at 57.

41. Sugarman, D., “‘A Hatred of Disorder’: Legal Science, Liberalism, and Imperialism’ in Fitzpatrick, P., ed., Dangerous Supplements (London: Pluto, 1991) at 34–67Google Scholar.

42. Ibid.

43. “The classical jurists sought to persuade us that… a programme of legal science in England was viable and desirable. We can see the process of naming and claiming, of attributing to law certain features associated with reason and science. It was neither new nor was it peculiar to law. It exemplified a wider movement to extend scientific rigour to the moral sciences. The increasing prestige of the natural sciences only accentuated the transmission of metaphors such as ‘geometry’ and ‘mathematics,’ and thereby similar criteria of relevance and significance, as indeed it did between the natural and human sciences and general culture.” Ibid. at 39.

44. Wiebe, R. H., The Search for Order, 1877-1920 (New York: Hill and Wang, 1967)Google Scholar; Bledstein, B. J., The Culture of Professionalism: The Middle Class and the Development of Higher Education in America (New York: W. W. Norton, 1978)Google Scholar.

45. Sugarman, supra, note 41 at 37.

46. U.S.A. parochialism has distorted much of the leading work in the study of the legal profession. For a brief discussion see Pue, W. W., “‘Trajectories of Professionalism?’: Legal Professionalism After Abel”, “Problem 1: The Peculiarities of the Yanks”, in Esau, A., ed., Manitoba Law Annual, 1989–1990 (Winnipeg: Legal Research Institute, University of Manitoba, 1990), 57–92, at 67–76Google Scholar.