Vol. 17 No. 2 (February, 2007) pp.75-80
REVOLUTION AND THE MAKING OF THE CONTEMPORARY LEGAL PROFESSION: ENGLAND, FRANCE, AND THE UNITED STATES, by Michael Burrage. Oxford and New York: Oxford University Press, 2006. 704pp. Hardcover. $150.00 / £84.95. ISBN: 0199282986.
Reviewed by James C. Foster, Political Science, Oregon State University-Cascades. Email: james.foster [at] osucascades.edu
Michael Burrage’s magisterial tome is a culmination resulting from a convergence of several important developments in one branch of legal sociology. Over the past two decades, students of the legal profession have sought to employ historical analysis, to bring politics back in, and to pursue both endeavors in a comparative vein. Burrage, who currently is a Research Fellow in Industrial Relations at the London School of Economics and Political Science, himself has been involved in advancing all three of these concerns. For instance, in 1990, Burrage and colleague Rolf Thorstendahl, edited two collections of essays that sought to rethink the study of professions along historical lines (Burrage and Thorstendahl 1990; Thorstendahl and Burrage 1990). Nine years later he contributed an essay to a Review Section Symposium of LAW & SOCIAL INQUIRY addressing Lawyers and Politics (Burrage 1999; cf. Halliday 1999 and Scheingold 1999.) The present work represents something of a scholarly “quantum leap” in which Burrage builds on these developments, pursuing all three lines of inquiry to offer Weberian “intelligible explanations” (p.593) of the distinguishing characteristics of the legal profession in England, France, and the United States. As such, REVOLUTION AND THE MAKING OF THE CONTEMPORARY LEGAL PROFESSION is a welcome addition to the Oxford University Press Socio-Legal Studies series.
Burrage’s book is about what he characterizes as “A Fateful Encounter” (Chap.1, emphasis added). The fateful encounter he plumbs at length is between revolution and lawyers’ professional formation. Burrage’s use of the singular noun – “encounter” – in his key first chapter is somewhat misleading. To begin with, underlying a fateful encounter between revolution and lawyers’ professional formation is another, more fundamental, clash between social ideals and social realities. Burrage begins his analysis of attacks on lawyers in association by reviewing various manifestations of the well known antipathy toward lawyers. Unsurprisingly, it appears that a central goal animating revolution in the West, as Burrage understands the phenomenon, is to be rid of lawyers. “[L]aw without lawyers,” he writes, “has been one of the more enduring and resilient ideals of western civilization, recurring in the works of authors of varied temperaments and philosophies, separated by vast distances of time and culture, and living under diverse social and political systems” (p.5). Given Burrage’s Shakespearean view of the revolutionary ideal to “kill all the lawyers,” one might say that his essential story is one of [*76] paradise lost, or how revolution shaped lawyering without eradicating the profession.
But Burrage’s “encounter” has further dimensions. Not only is he describing revolutionary “ideals that were frustrated or abandoned, and dreams that failed” (p.7), he also is telling the story of three distinct revolutionary encounters. Although revolutions in England, France, and the United States, respectively, may have failed to eliminate lawyers, still “there is reason to believe that the way in which these legal professions resisted or recovered from these revolutionary attacks, and later adjusted to, or were forced to adjust to, the institutionalized settlements of revolutionary ideals can help us to understand their peculiarities in the modern world” (p.7).
Having just pointed out that Burrage’s analysis is more multi-dimensional than the title of his first chapter suggests, it may now seem ironic to note that his entire argument rests upon a single factor – revolution. Single-factor analyses are risky business. One of the most (in)famous examples of such analysis, with which LPBR readers are no doubt familiar, is Louis Hartz’s THE LIBERAL TRADITION IN AMERICA. Like Hartz, Burrage sets out to write an “ambitious book . . . impressive in its learning and in the mastery of . . . analysis . . . a book of great scholarship, historical grasp, and theoretical sophistication” (p.vi). Initial assessments of Hartz’s approach ranged from “freewheeling and controversial” (Mowry 1955) to “perverse historical method” (Koch 1955; cf. Ellis 1996; Smith 1997; Kloppenberg 2001). In what amounts to one of the more radical understatements in American political thought, Hartz acknowledges blithely on the very first page of Chapter 1 of his “magnum opus” (p.vi): “I know that I am using broad terms broadly here” (Hartz 1955).
Burrage is not quite so bold. I say “not quite” because, while acknowledging that “[r]evolutions and professions, the two phenomena at the centre of the investigation are . . . both also the center of academic battle zones” (p.7), Burrage resolutely refuses to intervene in the “intellectual game” (p.8). “There are arguments enough in the pages that follow,” he parries, “and no point therefore in picking a fight . . . on one’s way to the ring” (p.8). Fair enough. Whether Burrage is too clever by half or astute rests upon the persuasiveness of his historical analysis. More, below, on his performance in “the ring.” Here it needs to be said that, red flags to the contrary notwithstanding raised by Burrage’s seemingly cavalier attitude, he does specify baseline definitions of “revolution” and “profession,” both of which derive from, and are designed to serve, the comparative focus of his particular investigation.
Burrage treats revolutions “as they usually appeared to the legal professions themselves” (p.8) on the ground, so to speak. Hence, despite “profound differences” (p.7) between the English (1688), American (1776), and French (1789) revolutions, he argues that, as far as lawyers were concerned, “in three respects that matter . . . they are similar, even identical” (p. 7): [*77]
To begin with, they all involved armed revolt against the agents, institutions and legitimacy of the existing state, which led to its collapse and transfer of its authority to new state institutions, which claimed legitimacy on new grounds. Second, they all provoked attacks on the law, the courts and the legal profession which were all without parallel, in scale, fury and content, in either the previous, or the subsequent histories of three societies. Third, these attacks prompted attempts to reform the law, the courts and the legal profession, which were also more comprehensive and radical than those at any time in their history (p.8).
Burrage defines professions just as pragmatically. His initial, “bare-bones” (p.9) definition is:
Whenever full-time legal practitioners have come to recognize that they have certain common interests based on the work they perform, or on the knowledge and skills they share, have taken collective action to defend these interests, and in so doing have received some recognition or privileges from the state that set them apart from other occupations, they will be taken to be a profession (p.9).
The analytical problem Burrage poses is this: “What Have [lawyers] Actually Done, or Tried to Do?” (p.22). Prior to addressing this question, he elaborates on his defining characteristics of the legal profession. “In the end, we are left with four things that lawyers, once they have recognized their common interests and begun to act collectively, have consistently tried to do . . . 1. To Control Admission and Training . . . 2. To Define and Defend a Jurisdiction . . . 3. To Regulate Each Other’s Behavior . . . [and] 4. To Defend and Enhance Their Corporate Status” (pp.22-41).
Once he has staked out this definitional territory, Burrage proceeds to walk the reader through over five-hundred pages covering several millennia of, first, French, then American and English history, culminating in each society’s revolutionary spasm and the lingering consequences for the three legal associations. If Burrage’s definitions are parsimonious, his historical analysis is exhaustive. His analysis also is engaging, wide-ranging, and lucid. Even if one were, in the end, to conclude that Burrage had not made his case regarding revolution and the legal profession, there is no gainsaying that he has produced a meticulous piece of scholarship. The word erudite comes to mind.
To what does Burrage’s erudition amount – with particular reference to the nexus between three revolutions and three legal professions? Contemplating that question, I raise a few provisional queries ultimately related to one another. First, does Burrage’s singular focus on revolution marginalize other factors that figure in shaping lawyers’ associations in America, England, and France? In a generally glowing review of Lucien Karpik’s LES AVOCATS: ENTRE L’ETAT, LE PUBLIC, ET LE MARCHE XIIIe-Xxe (THE ADVOCATES: BETWEEN THE STATE, THE PUBLIC, AND THE MARKET FROM THE THIRTEENTH TO TWENTIETH CENTURIES), Burrage faults the author for failing to analyze the effects of the French [*78] Revolution on the French legal profession. Burrage writes:
In a sense, of course, [Karpik] cannot overlook the Revolution, since the arguments advocates deployed as spokesmen of the French people in the nineteenth century, and the passion they brought to the defense of their clients, were informed and inspired by the Revolution, as of course, were most of their clients’ offenses. Advocates could not therefore be anything but a postrevolutionary profession. However, the lack of explicit reference back to those events leaves a number of matters unexplored, and alternative hypotheses unstated.(Burrage 1999).
Similarly, one wonders whether, when seeking to explain the contemporary characteristics of American, English, and French legal professions, respectively, Burrage can “overlook” decisive circumstances and events preceding and following revolutionary convulsions? What other matters are unexplored, what alternative hypotheses unstated?
Second, what about a more nuanced notion of “politics”? Burrage acknowledges that “political events and decisions are of primary importance” (p.592) in explaining differences among these three legal professions; only to add immediately “in particular, the greatest political event in their histories, their revolutions” (p.592). It may, perhaps, be a matter of semantics, but are other defining political events and decisions precluded by Burrage’s use of words like “only” (p.592) and phrases like “revolutions . . . as the starting point . . .” (p.593)? As Stuart Scheingold observed in a different (albeit not unrelated) context:
[T]he conception of liberalism deployed by Halliday and Karpik is problematic . . . because it is confined to what they refer to as “political” liberalism – thus excluding the connections among legal professions, property, and capitalism. The underlying linkages between economic and political liberalism are . . . complex[.] . . . Indeed, it may well be those complexities that led Halliday and Karpik to anchor their theory solely in political liberalism. But this strategy ends up backfiring. The political and the economic are inextricably linked in the trajectory of liberalism; so, too, do they seem to be linked in the development of legal professions (Scheingold 1999).
Burrage chides Marx for corrupting his “brilliantly apt metaphor” (p.595) that revolutions were the “locomotives of history” to a general contention that it was the owners of locomotives that were the dynamic force (p.595). Does Burrage’s view of revolution amount to the same sort of simplification?
Third, what about culture? By culture, following the late, lamented Clifford Geertz and Ann Swidler, I mean the symbolic “templates,” “blueprints,” road maps that shape human action (Geertz 1973; cf. Swidler 1986). “Culture influences action through the shape and organization of [prefabricated links constructed of habits, moods, sensibilities, views of the world . . . into] a toolkit or repertoire . . . from which actors select differing pieces” (Swidler 1986). How can variations among the American, English, and French legal profession be explained without reference to the unique “tool kits” that guide collective action? Does revolution [*79] “trump” culture? Indeed, can differences wrought by revolution be thought of intelligibly in isolation from culture?
My questions reflect my ambivalence. Is REVOLUTION AND THE MAKING OF THE CONTEMPORARY LEGAL PROFESSION a brilliant example of Ockham’s razor, or a dazzlingly but reductionist effort? I have my doubts. I leave it to LPBR readers to arrive at their own conclusions.
Burrage, Michael, and Rolf Thorstendahl (eds). 1990. PROFESSIONS IN THEORY AND HISTORY: RETHINKING THE STUDY OF THE PROFESSIONS. London, England: Sage.
Burrage, Michael. 1999. “Review: Lawyers and Politics Escaping the Dead Hand of Rational Choice: Karpik’s Historical Sociology of French Advocates.” 24 LAW & SOCIAL INQUIRY 1083.
Ellis, Richard J. 1996. AMERICAN POLITICAL CULTURES. New York, NY: Oxford University Press.
Geertz, Clifford. 1973. THE INTERPRETATION OF CULTURES: SELECTED ESSAYS. New York, NY: Basis Books.
Halliday, Terence C., and Lucien Karpik (eds). 1997. LAWYERS AND THE RISE OF WESTERN POLITICAL LIBERALISM: EUROPE AND NORTH AMERICA FROM THE EIGHTEENTH TO TWENTIETH CENTURIES. New York, NY: Oxford University Press.
Halliday, Terence C. 1999. “Lawyers and Politics The Politics of Lawyers: An Emerging Agenda.” 24 LAW & SOCIAL INQUIRY 1005.
Hartz, Louis. 1955. THE LIBERAL TRADITION IN AMERICA: AN INTERPRETATION OF AMERICAN POLITICAL THOUGHT SINCE THE REVOLUTION. New York, NY: Harcourt Brace.
Kloppenberg, James T. 2001. “In Retrospect: Louis Hartz’s THE LIBERAL TRADITION IN AMERICA.” 29 REVIEWS IN AMERICAN HISTORY 460.
Koch, Adrienne. 1955. “Review: THE LIBERAL TRADITION IN AMERICA: AN INTERPRETATION OF AMERICAN POLITICAL THOUGHT SINCE THE REVOLUTION.” 42 MISSISSIPPI VALLEY HISTORICAL REVIEW 550.
Mowry, George E. 1955. “Review: THE LIBERAL TRADITION IN AMERICA: AN INTERPRETATION OF AMERICAN POLITICAL THOUGHT SINCE THE REVOLUTION.” 61 AMERICAN HISTORICAL REVIEW 140.
Scheingold, Stuart A. 1999. “Review: Lawyers and Politics Taking Weber Seriously: Lawyers, Politics, and the Liberal State.” 24 LAW & SOCIAL INQUIRY 1061. [*80]
Smith, Rogers M. 1997. CIVIC IDEALS: CONFLICTING VISIONS OF CITIZENSHIP IN U.S. HISTORY. New haven, CT: Yale University Press.
Swidler, Ann. 1986. “Culture in Action: Symbols and Strategies.” 51 AMERICAN SOCIOLOGICAL REVIEW 273.
Thorstendahl, Rolf and Michael Burrage, eds. 1990. THE FORMATION OF PROFESSIONS: KNOWLEGE, STATE AND STRATEGY. London, England: Sage.
© Copyright 2007 by the author, James C. Foster.
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Revolution and the Making of the Contemporary Legal Profession: England, France, and the United States