English Lawyers between Market and State: The Politics of Professionalism

Vol. 14 No. 6 (June 2004), pp.435-439

ENGLISH LAWYERS BETWEEN MARKET AND STATE: THE POLITICS OF PROFESSIONALISM, by Richard L. Abel. New York: Oxford University Press, 2003. 752pp. Hardback $135.00 / £95.00 ISBN: 0198260334. Paper $55.00 / £30.00. ISBN: 0198260342.

Reviewed by Patrick Schmidt, Department of Political Science, Southern Methodist University, Email: pdschmid@mail.smu.edu .

Readers may reach for clichéd terms to describe this tome, this magnum opus. Certainly length factors strongly in choosing to use such language, but so too the content deserves a few linguistic fireworks, for Richard Abel’s most recent project has turned contemporary history like a craftsman to provide us with a punctilious chronicle of a transformative period in English legal politics. Those who take up this book will be rewarded (if occasionally burdened) with what might be regarded as the best account of how one country’s legal profession—understood as a collectivity but the creature of individual and sub-group action—attempts to maintain its traditional position of strength in the face of external assaults and internal discord.

For those who are familiar with Abel’s earlier work on lawyers in England (1988) and the United States (1989), the themes driving ENGLISH LAWYERS BETWEEN MARKET AND STATE will be familiar ground. Abel’s understanding of a legal profession is oriented around a broadly economic frame, in which the elements of professionalism (such as self-regulation and access controls for bar membership) serve the bar’s interest in maintaining a stable market for legal services, free of severe disruption or challenge to its financial vitality and social status. In the past two decades scholars have given the study of lawyers competing, interdisciplinary frames, including linguistic and interpretivist turns. Though some might be quick to point out that Abel’s approach remains necessarily partial, for his part ENGLISH LAWYERS has brought together levels of analysis that surely will please a wide array of scholars. His approach is critical, unrelenting, and blessed in this project with some of the best source data anyone might hope for in academic life.

A basic prior familiarity with theories of professions perhaps would serve readers well, since the book opens without a natural bookend for where it is headed in the concluding chapter’s synthesis of that topic. The starting point in Chapter 1 is an account of English politics in the 1980s and 1990s that, following on the heels of a Dramatis Personae worthy of a Russian novel, sets the stage with the state’s assault on the profession. After 1979, when the Royal Commission on Legal Services deferentially approved the state of the profession, both Conservative and Labour governments restructured the field. Why? With extremely fine précis of the governing ideologies of Thatcher, Major, and Blair, Abel explores the personalities and ideologies that are the book’s trigger. The mechanics and specific political [*436] struggle of the Conservative legal services “revolution” gets detailed treatment in Chapter 2. There is a political mystery to tell here, because Abel thinks it paradoxical that the Conservatives would overthrow tradition and attack its natural constituents in the legal profession, just as it seems improbable that a Labour government would embrace the Tories’ market reforms when moving into Downing Street in 1997. These are engaging enigmas, though even here it is apparent that the “between market and state” portion of the book’s title is itself a puzzle. Political and market forces were not the rock and the hard place squeezing the legal profession; rather, the state would press the profession with market forces. Further, as the book unfolds, the state and market grow considerably more complex, to the point that these labels serve as simplifying (and hence, distorting) summary variables for a wide variety of long-term trends and social forces that created a climate of change.

Whatever the causes, Abel concerns himself primarily with reactions and consequences. The book neatly organizes the elements of professional ideologies into individual chapters. Chapter 3, for instance, examines the efforts of the profession to regulate entry into the profession, concluding that these are doomed to fail. Chapter 4 takes up the related question of the profession’s social and demographic characteristics, since the status of the bar reflects its exclusivity in composition as well as number. The tables and figures that might have sharpened the text are unfortunately absent, but beneath plenty of data he argues that the English profession has not satisfactorily resolved how it would square its meritocratic roots (which were conveniently exclusionary as a way of reinforcing its collective status) in an order that affords legitimacy to institutions that are representative.

If readers in countries with unified legal professions have failed to appreciate the significance of the split between barristers and solicitors, Chapter 5 will settle the questions. Anticompetitive practices that have preserved the market and high pay for barristers faced attack from within the bar as solicitors sought easier access to courts, while barristers fought back by seeking to allow clients direct access (rather than through solicitors). Hidden practices such as the selection of QCs (Queen’s Counsel) and judges were also under pressure. Barristers loom large in cartoon images, topped with wigs and the gracious mannerisms (“my learned friend”) of the upper crust, so with this generous target Abel’s critical narrative seems to break into a pattern. Chapter 6 follows that mold with a complementary study of the challenges to solicitors, focusing particularly on the area of conveyancing, with lighter (too light?) treatment of the rise of multinational legal practice, multidisciplinary partnerships, specialization, and other key trends.

Chapter 7 and 8 of ENGLISH LAWYERS form another natural pair, with the pinnacle of Abel’s scathing autopsy focused on the transformation of legal aid in England and Wales. Like many other points in the book, the United States provides an important point of comparison—for the reader as well as for all parties in England, who used the American legal system as the poster-child of a legal system-gone-wrong. [*437] Readers familiar with the American system of public defenders and pro bono legal services will recognize the problem of building political support for high government expenditures and aggressive defense for the accused. English lawyers historically benefited from a very generous system of compensation, which gave significant proportions of lawyers an incentive to take on such work. The losers of American-style reforms (e.g., conditional fees, salaried lawyers) were the clients. “Each reform…replaced an incentive for lawyers to do too much work at the expense of government with one to do too little at the expense of clients” (p.350). Abel’s disappointment in the Labour government is particularly acute and palpable, because Thatcher and Major would be expected to cut government spending on legal aid. “But by substituting conditional fees for legal aid and salaried lawyers and lay advisers for private practitioners and capping the legal aid budget,” Abel writes, “‘New Labour’ confirmed that its real novelty was antipathy to the welfare state” (p.353). Readers may wish to pause here, as elsewhere, to raise some normative ambiguities. Abel recognizes the impotence of the profession’s arguments in defense of the status quo, but his critique of professionalism has by now sensitized us to question any position lawyers would support. Shouldn’t we deconstruct a carte blanche legal aid system in light of the bar’s self interests? Are we beyond finding any natural protagonists and antagonists here, with all sides tainted?

The rock and hard place role of market and state is most apparent in Chapter 9, concerning lawyer discipline. The “clients” are a key force, pushing lawyers like never before to justify themselves, show respect, and be attentive to client needs. If the profession could not provide such a high level of service, the state might step in. By the end of the 1990s, the professional illusion had barely a shred of magic, and the asserted autonomy of lawyers had substantially declined. At the same time, some of the issues facing the legal profession are entirely internal. Though Chapter 10, concerning the internal politics of the profession’s governance, is the drama’s comic relief—with candidates calling their opponents, variously, a “complete pillock,” “a piece of dog turd,” and “the most dangerous feminist in England”—its lessons about politics (collective action, power, and the challenges of democracy) ring simultaneously universal and less insightful.

To say that these chapters constitute mere “contemporary history” would be too light. The book has the feel of an authoritative history of a past era, with distance that belies the fact that Abel is reporting events of the current administration (though there has been sufficient time for some of the characters, like Keith Vaz, to produce enough material for other critical inquiries). Chapter 11’s synthesis of the preceding chapters makes clear how professions are challenged in their attempt to sustain their legitimacy, status, and economic returns. It also gives Abel room to speculate on the future vitality of professionalism’s hallmark elements. Professionalism, he argues, faces continuing erosion, as old rationalizations collapse. Abel does not mince words: “Like all ideologies, the legal profession’s is fictitious and incoherent” (p.497). There is no scope for [*438] lawyers to escape the demands of the market and state, since the claims the profession seeks to make “are internally contradictory and factitious. Just as lawyers broke their promise to elevate client interests above their own, so very few champion the oppressed against injustice” (p.498). The reader must turn the last page with a certain amount of despair. Where to go from here? Clearly there are problems with state regulation, if the politics of legal aid reform are any indication. A post-Enron world does not leap to embrace market forces as the source of attorney responsibility and good practices, either. Unfortunately yet powerfully, with just a few hints and clues the reader might try to piece together, Abel leaves us hanging between market and state as the trapeze wire of professionalism comes unraveled.

Any frustrations in such an ending should be forgiven in light of the scholarship that Abel has given to us. Even in a highly condensed format, the footnotes, bibliography, and index run a brain-numbing 214 pages; they contain numerous thoughtful discussions that are very worthy of attention. Further, Abel disarms his argumentative onslaught with wry humor, dripping irony, and discretion in piling narrative on top of the characters’ proclamations. Readers will want to look closely at his frequent parentheticals, where he points out the implications, contradictions, or shallowness in the statements of the characters. Here he not only found space to poke at his characters, as in this example: “A Law Society President…warned that ‘the rule of money would overcome the rule of law’ (whatever that meant)” (p.236), but to add suggestive hints at his critical themes, as in the opening sentence to Chapter 8: “In opposition, Labour had equivocated on legal aid (like many other issues)” (p.293). But the power and weight of the indictment would seem to allow the right to rub some salt in the wound, and it provides a form of relief that keeps the reader going, especially for non-English readers who may feel that they have to learn far more detail about the politics of the English bar than is necessary to reach Abel’s lessons.

Indeed, although at times while reading I felt my conclusion to this review would be the half-hearted praise of “this is a valuable book; but you don’t need to read all of it to get the gist of it,” it became increasingly difficult for me to identify exactly what portion a reader should leave out. Abel structures the book cleanly so as to allow readers an “out”—the conclusion section of each chapter neatly summarizes and repeats many of the dramatic moments of the bar’s struggles—but to do so would be to miss out on the themes that are perhaps more significant than the story of professionalism as an ideology. It isn’t just that “those wishing to understand lawyers should read what they say about themselves, no matter how pompous, tedious or self-adulatory the text may be” (Cain 1994, p.20). Their words certainly do that much, and our understanding of professional ideologies is definitely more mature because of Abel’s contributions. Even more deeply, this is a book about rhetoric in a political system, its logic and its power. The policy area of professional services regulation is a window to the politics between the state and its regulated constituents. In particular ways, the profession is an [*439] industry, a union, and a marketplace. The richness of ENGLISH LAWYERS lets us see individuals and institutions respond to one another, develop and lose credibility, succeed and fail in the marketplace of ideas, and parlay those positions into future successes and losses. We can watch lawyers hoist the profession and themselves with their own rhetorical petard, and we also witness the interaction of argumentation, ideology, and interests in modern politics.

REFERENCES:

Abel, Richard L. 1988. THE LEGAL PROFESSION IN ENGLAND AND WALES. Oxford: Basil Blackwell.

Abel, Richard. 1989. AMERICAN LAWYERS. New York: Oxford University Press.

Cain, Maureen. 1994. “The Symbol Traders.” In Maureen Cain and Christine B. Harrington (eds.) LAWYERS IN A POSTMODERN WORLD: TRANSLATION AND TRANSGRESSION. New York: New York University Press.

*****************************************************