Thursday, February 08, 2007

Another Reason It Might Be Pragmatism

I wrote earlier about my skepticism regarding Mr. Steve Smith's thesis that law professionals practice law in a certain way because they're carrying around relics of theistic system of legal metaphysics. Last night I saw one of the trailers USA is currently running for Psyche, the one where what's-his-face is citing "unfair surprisery", which got me thinking about lay law practice. Could the complicated practice of law be a result of legal professionals artificially raising the bar for legal practice.

Think about it: if the practice of a particular profession is complicated it tends to reduce the number of people who go into that profession. Those who are able to master the minutia of the profession are generally more successful relative to their less masterful peers. This is certainly true in my field, IT, where your paycheck is generally proportional to you depth and breadth of experience. What if the practice of law no longer involved the mastery of precedent and legal minutia? What effect would that have?

Well, it would almost certainly open the field to more practitioners. If a case could be won through rhetoric, logic, and reference to general principles it would all-of-a-sudden be possible for a much larger set of individuals to argue successfully in court. Presumably this would reduce the demand for lawyers, perhaps most especially among the well-educated (and affluent), which would reduce the fees that lawyers could command.

It makes sense; the reason that legal professionals make bankety-bank is because the practice of law is complicated. But who controls the form that practice takes? Those same legal professionals. This represents a conflict of interest, but what makes this conflict especially pernicious is that the legal profession is largely unconstrained by external realities. Unlike an architect or a doctor, whose professions are moored to reality by to objects of their practice (buildings and people, respectively), the objects of the legal profession are other legal creations such as statues, precedents, etc.

The above has a lot of explanatory power, more so even than I originally thought when I started this post. I'm really surprised that Mr. Smith didn't even broach the issue. Again, this doesn't necessarily indicate that legal folk are unethical; they could all be doing this unconsciously or from a desire to maintain "professionalism" within the discipline. Still, it seems more plausible than theories about ontological baggage.


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