THE DECLINE OF PROFESSIONALISM?1

DOIhttp://doi.org/10.1111/j.1468-2230.1986.tb01676.x
Published date01 January 1986
Date01 January 1986
THE
MODERN
LAW
REVIEW
Volume
49
January
1986
No.
1
THE
DECLINE OF PROFESSIONALISM?’
IT
takes considerable temerity for an American observer to address
a British audience on the subject of its own legal profession.
I
can
only hope that my inevitable errors and omissions may be offset
somewhat by the advantages
of
naivety: the
eye
of the stranger
may see features
so
obvious or
so
well-accepted that they are
virtually invisible to members
of
the profession and even to those
who study it first hand. In this article I want to trace the larger
contours
of
the rise and decline
of
the English legal profession in
the last century and a half. I do not use the word “decline”
pejoratively, to signify a lowering
of
ethical standards. Rather, I
view professionalism as a specific historical formation in which the
members
of
an occupation exercise a substantial degree of control
over the market for their services, usually through an occupational
association. I have chosen this concept
of
professionalism over
others that stress technical expertise, or standards
of
competence
and ethical behaviour, or altruism, because it seems to me to
illuminate a great deal
of
the history and contemporary experience
of
English lawyers. There can be little doubt that nineteenth-
century solicitors consciously and energetically sought market
control, and it is painfully clear that both branches
of
the profession
today are deeply upset about threats to their continued exercise of
such control. At the same time, English lawyers offer an
especially apt context for exploring fluctuations
in
this concept of
I
The Chorlcy Lccturc
1985.
Thc data on English lawycrs. which form thc basis for
this article,
will
bc prcscntcd in full in a book on that subjcct. to
bc
publishcd by Basil
Blackwcll
in
1987.
In ordcr to savc spacc and avoid distractions,
I
havc omittcd all
refcrcnccs hcrc.
I
havc uscd thc adjcctivc “English” throughout as a shorthand rcfcrcncc
to England and Wales; my commcnts do not apply to Northcrn lrcland or Scotland.
I
havc bcen hclpcd in this rcscarch by
so
many pcoplc and institutions that
I
cannot thank
thcm all individually. Thc Law Dcpdrtmcnt
of
thc London School of Economics kindly
offered
mc
hospitality during thc autumn
of
1982.
Thc U.C.L.A. Law School Dcan’s
Fund, thc U.C.L.A. Committcc on Intcrnational and Comparativc Studies, and thc Law
and Social Scicncc Program of thc National Scicncc Foundation all havc providcd
gcncroiis financial support. Aubrcy Diamond hclpfully arrangcd a seminar at thc Institute
of
Advanced Legal Studies, whcrc
I
prcscntcd somc
of
thcsc idcas. and thc participants
offcrcd invaluablc commcnts and criticism. Thc Chorlcy Lccturc providcd a stimulus and
opportunity to dcvclop them morc fully. Stuart Andcrson. Simon Robcrts. David
Sugarman and Michacl Zandcr havc rcad drafts and furnishcd invaluablc information.
And Gcoffrcy Bindman has pzticntly answcrcd cndlcss qucstions. My intcllcctual dcbt
to
thc writings
of
Eliot Frcidson and Magali Sarfatti Larson will bc obvious throughout.
1
2
THE
MODERN LAW REVIEW
[Vol.
49
professionalism (a cycle that is visible in other countries as well).
First, lawyers professionalised earlier in England than in other
common law countries and also may be deprofessionalising sooner.
Secondly, the divided English legal profession offers a natural
laboratory for observing the choice of tactics in the professional
project and their relative success or failure.
I
All occupations under capitalism are compelled to seek control
over their markets. The only alternative is to be controlled by the
market-a situation that is fraught with uncertainty at best and
may lead to economic extinction at worst. Of course, no occupation
controls its market totally, and none is wholly without influence;
control is a question of degree and constantly changes. The
foundation of market control is the regulation
of
supply. Occupations
that produce goods may pursue this goal by seeking to restrict raw
materials or technology. But occupations that produce services
constrain supply principally by regulating the production of
producers. Although advocates of control invariably portray their
object as improving the quality of services, we should not let this
claim blind us to the fact that any improvement necessarily also
limits entry. At one extreme of the spectrum of control, the
profession imposes a
numerus
clausus-illustrated by some
nineteenth-century Continental legal professions, notaries in certain
countries today, and elite advocates, such as Queen’s Counsel in
England and avocats of the
Conseil
d’Etat
and the
Cour
de
Cassation
in France. At the other extreme, entry to the occupational
category is governed by market forces: demand for professional
services on the one hand and the distribution of ability, energy,
and inclination on the other. Gardeners in
Los
Angeles are one
example; window cleaners in London might be another. Market
control is inextricably related to occupational status: it not only
symbolises status but also enhances it instrumentally, both by
restricting numbers (scarcity being an intrinsic measure of status as
well as a means of increasing income) and by controlling the
characteristics of entrants.
In order to trace the dramatic fluctuations in the kind and
degree of supply control that English lawyers have exercised during
the last century and a half, it is useful to choose as a baseline the
entry barriers prevailing in the first quarter of the nineteenth
century. Barristers and solicitors differed significantly in the extent
to which each branch emphasised ascribed or achieved qualitie-
the character of the whole person or narrow technical skills-and
in whether controls were formal or informal, visible or invisible.
The Bar entered the nineteenth century with stringent constraints
on the kind
of
person who might become a barrister, constraints
that had been in place for several hundred years. The Benchers of
the four Inns had complete discretion to admit or reject a student;
JAN.
19861
THE
DECLINE
OF
PROFESSIONALISM?
3
applicants had to state their “condition in life” and provide
references from two barristers. The Inns extended a preference to
university graduates, shortening the number
of
years they had to
keep terms from five to three and the number of dinners they had
to eat each term from six to three,
so
that the burden on non-
graduates was more than three times as onerous. Partly for this
reason, half
of
all barristers were university graduates at a time
when this privilege was enjoyed by only a tiny fraction
of
the
population, all
of
whom were upper-class members
of
the
Established Church. Once called, the fledgling barrister was
expected to serve a pupillage
of
one to two years with an
established barrister or other legal professional. Thereafter, the
fully-qualified barrister had to open his own chambers, for in the
early nineteenth century most practised alone.
Two things about this entry process are striking, though perhaps
not immediately apparent. First, it was extremely expensive. For
the majority who attended university, there was the cost
of
tuition
and three years
of
maintenance. The Bar student then had to pay a
fee
of
f30440
for admission to his Inn and deposit an additional
f100, which was refunded without interest only after call. During
his three to five years as a student, though forbidden to work at
most trades, he incurred annual expenses
of
f5410 for hall
dinners,
f648
for books, and about
f150
for maintenance. Call
fees
were f70480, to which must be added about
8
guineas for a
wig and gown. The premium for pupillage was
200
guineas, and
the pupil had to maintain himself for another two years. Once
established in his own chambers, the barrister could not expect to
earn enough from practice to support himself for several years, if
ever, though he might make ends meet by devilling, tutoring,
marking examination papers, law reporting, or editing.
A
contemporary estimate put the one-time costs at
f300
and the
yearly maintenance at
f250
for as long as
10
years from entering
university to reaching economic self-sufficiency. These financial
demands strongly reinforced the ascriptive criteria that informed
the decisions to admit the student to university and to the Inns, to
accept a pupil, and to brief a fledgling barrister.
The second noteworthy feature of this lengthy and arduous
process
of
qualifying is that it had relatively little to do with the
acquisition
of
technical skills. Those who attended university did
not study English law because it was not taught. The Inns had
abandoned any pretence of education several centuries earlier.
And though we know little about the content
of
pupillage, certainly
many barristers must have accepted pupils for the substantial
premiums the latter paid rather than out of dedication
to
teaching.
The Bar selected those who aspired to be “gentlemen” (whether or
not their fathers were landed gentry); the collegial life at university
and within the Inns may have reinforced such gentility; but neither
selection nor training ensured technical competence in law.

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