Bourgeois Collectivism, Professional Power and the Boundaries of the State: The Private and Public Life of the Law Society, 1825-1914 (original) (raw)

1996, International Journal of the Legal Profession

“Bourgeois Collectivism, Professional Power and the Boundaries of the State: The Private and Public Life of the Law Society, 1825-1914" (1996) 3 International Journal of the Legal Profession pp. 81-135. ABSTRACT This essay considers anew the rise of the Law Society from its foundation in 1825 to World War I, and its larger political and cultural significance. The period from 1825 to 1914 was the seminal or classical period in the development of the Society. Many of the controversial and difficult issues that today concern both the profession and the public about the conduct of the Society and the solicitors’ profession at large came to the fore and were crystallised during this formative period. It was during this period that the Society established itself as the predominant voice of the solicitors’ profession, the arbiter of admission to the profession and proper conduct, the defender and extender of the profession's monopolies, and an influence of major significance on legislation and legal practice, despite recurrent bouts of public disquiet and discord within the Society and the profession, and on-going conflicts with other professions and the State concerning their respective jurisdictions. How and why did this happen; and what is its larger significance? In particular, the essay will address what has been called “one of the most important questions about the evolution of the legal profession up to the twentieth century”: namely, how was it that the regulation of solicitors came to vest considerable autonomy in the profession, an autonomy frequently envied by other professions? In examining the rise of the Society, the essay will focus on four of the most important factors: firstly, the way the Society was constructed from and inscribed within a complex of pre-existing traditions, forms, and vocabularies, including those relating to state regulation, self-governance and middle class systems of association; secondly, the swift and successful way in which the Society changed its orientation from a coffee-house type meeting place to an energetic, self-sustaining and proactive association; thirdly, its intimate links with elite City firms and the state; and, finally, its success as a pressure group, constituting and influencing legislation and practice. The web of interlocking contacts that enmeshed the executive of the Society, the elite City firms, the government, parliament, the judiciary and the local law societies is a subject which has hitherto been neglected by historians and sociologists. The Society’s role as a lobbyist and pressure group has already been subjected to scrutiny. This valuable work has nonetheless tended to be limited both with respect to subject-matter and periodisation. As regards subject-matter, it has largely concentrated on the Society's defence of its conveyancing monopoly and its efforts to thwart title registration. With respect to chronology, it is the period 1880 to 1925 which has received the lion's share of attention---which is not surprising given its pre-occupation with title registration. The vital importance of this subject-matter and period is beyond dispute. Nonetheless, there is a danger of portraying the Society's lobbying as more occasional, limited, and particularistic than was actually the case. This essay aims to supplement these accounts with a necessarily brief survey of some of the other areas which have received less attention. More generally, it illustrates what earlier accounts have tended to de-emphasise, namely, the Society's influence from its inception on the legislative process, helping to shape the terms of debate through its specialised knowledge, contacts and personnel, an influence which embraced professional and non-professional matters. From this perspective, the Society became an intrinsic partner in the formulation of state policy. As such the paper is part of a larger study of the political and cultural significance of the Society. It is hoped that this project will make an empirical contribution to current, largely theoretical controversies concerning the nature and politics of legal professionalism, the complex interplay between law and politics, the tensions between serving equally and concurrently the public interest and the interests of a profession, and the nature of government and democracy in England. The essay begins, not with 1825 and the foundation of the Society, but with the Society’s pre-history. This is essential if one is to understand the constellation of factors that helped to explain the rise and relative success of the Society, and the continuities and well as the discontinuities in professional form, culture and power over time. Indeed, it is no longer possible to treat the early modern period as a sort of primordial slime from which emerged modern, mature forms of professional associations, and which, therefore, merits scant attention. This is in part because the traditional stark and simplistic contrasts between the profession of the earlier period and that of the modern era have been largely repudiated in ways that have important consequences for how we characterise and periodise modernity. Recent research on the history of the English legal profession is virtually unanimous that: several of the key features of the modern legal profession can be found in its earliest history; the legal profession of the early modern period, especially between about 1500 and 1650, exhibited many of the traits that sociologists have associated with “professionalisation” (the existence of national, autonomous professional organisations; self-regulation; systems of discipline and education; custody of esoteric knowledge; monopolies of competence etc.); and the tendency within the sociological literature to assume that professionalisation was peculiarly associated with industrial capitalism or modernity is highly misleading. Thus Part One adopts a broader view of the context within which the Society was constructed than is normally the case. Part Two considers the period 1825 to 1845, the period from the establishment of the Society to its second royal charter. It demonstrates how the Society worked at building respectability: from the construction of a prestigious headquarters, the establishment of elite contacts and learned lectures, to attracting the right people, performing the right work, in the right manner. Although a patrician, London-dominated minority within the profession, the Society swiftly secured the mantle of the spokesperson of, and representative for, the profession as a whole, despite the outright hostility and suspicion of large sectors of the profession. Part Three considers the sources of the Society’s success during the period 1845-1914, with special reference to its interpenetration of the state and, in particular, its influence on the legislative process. While Part Three analyses and demonstrates the relative success of the Society and the consolidation of its power, Part Four complements this by stressing the limited hegemony of the Society. It also points up the ways in which the Society became a victim of its own success. It was also during the period 1845-1914 that the tensions between its diverse roles (defender of the profession, assistant to the state, protector of the public interest etc.,) came to the fore as the Society’s ability to safeguard both the interests of its membership and the consumers of the law was periodically questioned. In the concluding section we consider some of the larger findings and issues generated by this research to date, in particular: the continuities, discontinuities and the construction of “two hemispheres” within the profession; the political and cultural significance of the solicitors’ profession, relative to the bar; the nature of the special relationship between the legal profession and the state; the role of the Law Society in the construction and transmission of political discourse; and the elastic ideology of legal professionalism.