Introduction I. The Professions in Historical Context A. A Short History of the Professions in America B. The Professions and Professionalism: A Historiography II. Julius Henry Cohen and the Professionalism Melting Pot III. Beyond the Multiculturalism-Assimilation Divide Conclusion: Relevance of Professionalism as a Route to Participation in a Post-Multicultural State INTRODUCTION
This Article revives and defends a largely discredited history of professionalism. It argues that the rhetoric of the professions at the turn of the twentieth century provided immigrants, minorities, women, and outsiders of all sorts with an imagined route to citizenship. This rhetoric combined with the partially open doors of the profession helped people to move from the periphery to the center. It helped newcomers, who were viewed as at best irrelevant and at worst a burden on America, to transcend their role as outsiders and see themselves as architects of a new and just social order. It also provided a way for women and minorities to translate their experience on the periphery into a new vision for the American polity. Professionalism, in other words, served an important function. It provided a growingly diverse and intensely divided country with an arena in which to negotiate these differences and translate them into a common language.
For years, historians and sociologists have reminded us of just how harmful professionalism can be. They have ably and powerfully documented the abuses committed in the name of the professional ideal. But relatively few in recent years have uncovered or even recognized professionalism's more beneficial side. (1) This Article seeks to correct that distortion. In doing so, it begins what will hopefully be an ongoing effort to use history to identify aspects of profession and the rhetoric that accompanies it that are worth preserving.
Professionalism is such an elastic concept that it can and has served many different purposes over the years. Some of those purposes have been pernicious--the rhetoric of the professions has, for example, been used to justify the exclusion of newcomers of all sorts, particularly ethnic and racial minorities and women. (2) It has been used to create hierarchies within the profession and reinforce unjustified monopolies. (3) But other purposes have been more benign. Professionalism, for instance, has also served as a repository for a certain version of the American Dream. (4) It has stood for the ability of individuals on the outskirts to make their way, in one generation at most, to the inner circles of American society. (5) The imagined role of professions was itself useful to those who fought to achieve status through professional advancement. Not only did it provide motivation, it also supplied meaning for their pursuit.
So, this Article argues, professionalism did not simply serve as a way to consolidate the power of a new middle class elite. It did not grow, as the sociologist Andrew Abbott has suggested, solely from a monopolistic impulse--a way to lay claim to a jurisdiction and protect against the intrusion of other professions and occupations. (6) It was not, as Jerold Auerbach has suggested, purely a product of the elitism, greed, and xenophobia of a particular social and economic class. (7) Nor was it only a cultural process by which an emerging middle class defined itself and consolidated its power. (8) Of course, exclusion and elitism were a big part of the story, but they were not the only part. The blend of elitism and egalitarianism in the rhetoric of the professions allowed for a greater emphasis on the latter. As such, immigrants, women, and other ethnic minorities could use the rhetoric of professionalism for their own purposes.
After unearthing this more benign history of professionalism, this Article argues that this turn-of-the-twentieth-century version of professionalism is still relevant and desirable today. The professions still serve as a receptacle for a version of the American Dream. The rhetoric of the professions can still offer a mechanism for those who have lived, for whatever reason, at the edges of society to imagine their way in. It can still provide a way for outsiders to translate their individual experiences into a common language that can change and benefit the country as a whole.
Professionalism, like theories that enjoyed popularity at the end of the last century, was general--a system of thought, in which ethnic and religious difference did not matter. (9) What mattered instead was a combination of intellect and moral fiber. (10) Professionalism posited a system of merit in a world in which merit alone could not buy success. (11) Overt prejudice and networks of Anglo-Saxon white male power ensured that access to the professions only got you so far. (12) But professionalism--the idea of the unique role of professions in the polity--imagined away this reality. It envisioned a world in which the professions--open to all who possessed the intellect and moral worth--provided a theoretical key to membership not just in those wood-paneled legal clubs but also in the nation as a whole. Law, in theory, required its practitioners to both create and support the flesh and bones of the American system. By practicing the law and preserving its integrity, attorneys proved not only their allegiance to the American system but also their centrality to it. How better to earn acceptance than to catapult from the periphery to the center? The mechanism was not exactly a professional degree. It was a degree coupled with rhetoric about what that degree meant.
As we face a massive change in the nature of the legal profession in the years to come, exploring the history of professionalism is, perhaps, more important than ever. As we experience rapid and intense shifts in the economics of the profession, our understanding of the professions and their proper role in society will certainly change. It is, this Article argues, important to retain some version of the professional ideal because it has been and can be useful. But we must also remain thoughtful and critical about it at the same time. We ought to work to preserve the useful purposes of professionalism while shedding the antiquated and destructive ones. It is worth building on and developing the profession in light of its (good) ideals and revisiting and discarding the relics of its more destructive purposes. By exploring the role that professionalism has played, we are better equipped to preserve and perpetuate the good things about it, while discarding its outdated or destructive elements.
For decades, scholars have observed that the legal profession has become increasingly segmented. (13) There are services for the rich and those for the poor. There are lawyers for fancy corporate clients and lawyers for individuals. There are bespoke services and commodified ones. (14) Recently, this observation has come in vogue. Some journalists and legal theorists have criticized law schools, in part, for failing to recognize this divide. (15) Critics, such as Brian Tamanaha, suggest that law schools ought to track the market and cater their education to the likely careers of their graduates. (16) Personal injury lawyers, they say, do not need fancy theory. They don't need classes in jurisprudence or even professors who dabble in that esoteric world. (17) This Article serves as a reminder that the idea and rhetoric of a unified profession (while never really accurate) has been useful. (18) It has provided a way for those on the outside of our society to imagine a way in. Segmentation poses a threat to that. In envisioning both the nature of the profession and education, we should bear this in mind.
Part I of this Article provides some background on the history of the professions and recounts how historians and sociologists have analyzed the role of the professions and the rhetoric of professionalism in American history. Part II explores the life and work of Julius Henry Cohen, a prominent Jewish lawyer who wrote about the profession in the early decades of the twentieth century. Cohen's musings on the profession as well as his life and work as a lawyer illustrate the historical point that minorities have used the rhetoric of the professions to imagine their own ascent to leadership.
Cohen helped develop a discourse of professionalism to transcend the crippling particularity of his circumstances and define a route to citizenship in somewhat hostile territory. In his book, The Law: Business or Profession?, Julius Henry Cohen used and developed this rhetoric of inclusion to create a brand of professionalism that not only accepted him but in some way needed him. (19) Cohen, a Jew and an immigrant living in turn-of-the-century New York, used professionalism to carve out a position for himself (and other outsiders) in America. (20) He used professionalism strategically to blanch out difference and imagine a national identity for himself in a world that still discriminated against him because of his religion. (21) Once he achieved a certain status in the profession, Cohen did not abandon his experience as an outsider. (22) He associated poor ethical conduct within the profession not with ethnic identity but with a lack of education or merit. (23) By doing so, he used the rhetoric of the professions to proclaim the potential for human transformation. He used professionalism to argue and fight for the removal of permanent barriers to admission and success. In the same breath, he drew on the rhetoric of the professions to replace fixed barriers to success with contingent categories that individuals of whatever creed could transcend with hard work, dedication, and a strong moral sense. (24)
The Article concludes that Cohen was not simply an antiquated product of a hegemonic vision of America as a melting pot, in which difference gradually disappeared and made way for the Anglo-Saxon ideal. The idea of a...