Brian Tamanaha

Law As A Means To An End

A speaker at the 1850 Indiana Constitutional Convention remarked that 'the legal procedure was "a cunningly devised machine to make money and deceive the people,"' apparently a common view at the time. In a 1873 graduation address, Justice Ryan disputed the circulating view that law is 'a business.' In 'The Lawyer To-day,' published in 1904, a prominent lawyer remarked, 'how often we hear that the profession is commercialized.' A 1912 article by a lawyer in the Yale Law Journal, entitled 'The Passing of the Legal Profession,' lamented that 'The practice of law has become commercialized. It has been transformed from a profession to a business, and a hustling business at that.' Practicing law was no longer about the administration of justice, he wrote, but about doing the bidding of clients as a means to earn money. In a speech in 1914, 'The Opportunity in Law,' Louis Brandeis charged lawyers with 'allowing themselves to become adjuncts of great corporations and have neglected the obligation to use their powers for the protection of the people. An entry on the 'Modern Legal Profession' in a leading encyclopedia published in the 1930s concluded: 'The historic view was that a lawyer was an officer of the court and therefore an integral part of the scheme of justice. But the conception of the lawyer now obtaining is that he is the paid servant of his client, justified in using any technical lever that the law supplies in order to forward the latter's interest.'

Complaints by the public, or expressions of concern by lawyers, that the practice of law has become an unscrupulous business are apparently a constant of U.S. history. Friedman showed how, in all periods, American lawyers have hustled for business, scrambling to pick up and hold on to whatever fee-paying tasks they can find. Not everyone considered it lamentable to view law as a business. Oliver Wendell Holmes' famous 'The Path of the Law,' a graduation address, explicitly characterized the legal profession as a business in which lawyers are paid for advising people of the legal consequences of their prospective actions. Holmes urged a 'business-like understanding of the matter'; and proudly proclaimed that 'Law is the business to which my life is devoted.'

When the practice of law is taken as business, three additional senses of legal instrumentalism are uncovered. First, from the standpoint of a lawyer, the practice of law is a job like any other, a means to their own financial gain. Second, lawyers see their role as serving instrumentally as an advocate for their clients. Third, lawyers marshal, identify, interpret, and argue about legal rules in an instrumental manner to achieve their clients' and their own objectives.

Each of these senses of instrumentalism shows up in complaints about lawyers. Lawyers were easy targets for the charge of hypocrisy because the profession doggedly denied the evident business components of practice, and because lawyers collectively wielded public power, claiming to be public servants, while working to further their own and their clients' private interests. Lawyers ply a trade unique in possessing a public and a private side. A legal system occupies a special position in society as the coercive regime of governing rules; lawyers occupy a special position in the legal system by monopolizing the provision of legal services (lawyers) and by monopolizing the position of final decision-maker (judges). Lawyers use this monopoly to earn their livelihood and advance the agendas of those who pay them. Lawyers and judges keep reciting the public side of law in support of their activities but their conduct suggests to critics that lawyers take advantage of the public power to enhance their private gains.

A justification derived from the adversary structure of the system is offered by lawyers and judges to smooth over these two faces of law. The connection between the two is explicit in Justice Ryan's 1873 address, which, in a kind of alchemy, weaves the instrumentalism of the lawyers to produce non-instrumental law:

It is the business of a lawyer to consider well the merits of a controversy, before he takes a retainer to litigate it. But once he is retained, hesitation should give place to zeal, In forensic controversies, one of the parties is generally wrong; both may be. But that does not imply that the lawyer's retainer does wrong to the administration of justice. In doubtful cases, it is within neither the duty nor the power of a practicing lawyer to decide. That is for the court. It is only judgment, after litigation, which can settle right. In the selfish controversies of life, a practicing lawyer should generally accept all knowledge as uncertain, all aspects of truth as hypothetical, all opinion as doubtful, until tested by the ordeal of litigation. Even proximate justice is only to be secured, in the forensic contests of interest and feeling, by thorough presentation of both sides; by zealous advocacy of each as if it were the sure right. The counsel on both sides, within due professional limits, alike serve the cause of truth, alike contribute to the justice of the case. To this end, it is the duty of every retained lawyer to put his faith in his client's cause. The lawyer should believe in his retainer when he takes it; once taken, he should never mistrust nor betray it. The fidelity of our profession is a great moral lesson.