Introduction I. The Cultural Form of Economics and American Society Today II. The Hope of the Cultural Form of Law for America Today III. The Role for the Lawyer in America Today Conclusion INTRODUCTION
Julius Henry Cohen was a man concerned with the social good. He understood law to have a place in our thinking about that subject. He also understood the professional practice associated with it to be an activity different in kind from the practice of commerce. Given these dispositions, Cohen was quite naturally concerned about the growing influence of commercialism on the practice of law in his time, namely early twentieth century industrial America. Accordingly, Cohen expressed his reservations in his 1916 publication The Law: Business or Profession?, (1) the purpose of which was to challenge the commercialization of the practice of law and, correspondingly, to defend a vision of lawyering as a profession. (2)
For me, Cohen's work remains relevant principally because I share his starting points in my thinking about law and its professional practice today. I, too, am concerned with the social good. Additionally, I understand law to speak to that subject and consider the practice of law to be a pursuit that is qualitatively distinct from the practice of commerce. And, in this light, the present increasing sway of commercialism over the practice of law likewise disturbs me. Unlike Cohen, however, my apprehension about the rising impact of commercialism on lawyering does not lead me to address the business/profession dichotomy--at least not directly. Rather, my worry about commercialism's mounting influence on the practice of law points me in a different direction. Specifically, it leads me to attend to a broad social issue: commercialism's growing impact on society as a whole and how we might think about law and the role for lawyers in light of this state of affairs. For me, this matter is the context within which to explore the proper relationship between commercialism and the practice of law because it is, in my opinion, a more pressing social concern than the subject of the practice of law's character as a profession and its beneficial role; as such, in a democracy. Accordingly, in this Essay, I depart from Cohen's principal focus and take up this broad social issue.
Importantly, in doing so, I proceed from a distinct perspective on the essential character of commercialism and law. Specifically, I understand each to be a cultural practice of a set of ideas and, as such, to be a way of knowing, or being in, the world, at least in the United States. To speak in a slightly more technical vocabulary, I understand each to be, for Americans, a "cultural form" of enterprise--a cultural activity that affords an entry point into that which surrounds the individual, a means in and through which he or she organizes and comprehends experience--and to be aptly categorized alongside other cultural forms that Americans engage, for example religion, science, and art. (3) Necessarily, this disposition toward the essential character of commercialism and law informs my approach to the question presented. For me, the subject to be addressed is the growing influence of the cultural form of commercialism on society as a whole--or, more precisely, the growing influence of the cultural form of economics, (4) commercialism being the practice of a set of economic ideas (5)--and how we might think about the cultural form of law and the role for its most representative figures in light of this state of affairs. The discourse that follows reflects this orientation toward the subject matter (which is, to be precise, a philosophical-anthropological one). (6)
In summary form, the discourse makes three points. It explains that (a) illustrative of the social concern that motivates this Essay, the cultural form of economics occupies a significant place in the American political order, one that has a pronounced, negative effect on society; (7) (b) the cultural form of law offers the hope of an alternative mode of being in and through which to engage political life, one that provides for a more healthy social condition and, correspondingly, a space in and through which to resist the cultural form of economics and its negative social effects; and (c) the role for the lawyer in America today is to help realize the promise of the cultural form of law and, correspondingly, push against the manifestation of the cultural form of economics and its detrimental social consequences. As this summary description indicates, the broad message of the discourse is that cause for concern exists--the American embrace of the cultural form of economics has put the political order in a bad place and, thus, the social situation is a troubled one--and the cultural form of law and the legal profession represent a locus within which to assist society in moving in the direction of change.
Quite naturally, this broad message speaks to my purpose in presenting the discourse. In a small way, I hope to help increase awareness in American society of the problems resident in its politics and to identify one space within which Americans can begin to address them. Ernst Cassirer argued that philosophy must ultimately relate itself to the world and, correspondingly, that it had an ethical task--loosely speaking, to guide humanity and make man aware of the social problems of his time. (8) Karl Marx offered a variation on this thesis when he famously stated that the point of philosophy is to change the world. (9) I present my observations in the spirit of these thoughts.
Before proceeding with the discussion, a few brief comments are necessary to ensure the clarity of my remarks--to make plain what I am and am not saying. First, my concern with, and reflection on, the rise of the cultural form of economics in American society is an apprehension over, and consideration of, the increased dominance of a market psychology in the extant political order of America. That is, the impetus for the discourse, and the object of inquiry, is a growing social disposition and associated pattern of behavior in the United States. It is not instrumental institutions, namely markets, per se. Markets themselves, and specifically the questions of whether they have a place in the political order and, if so, the extent to which they do, are not subjects that I take up. Nothing in this Essay is intended to suggest otherwise.
Second, my focus on the growing influence of the cultural form of economics in America today ultimately reflects the identification of one important factor contributing to a negative social condition. Arguably, it is the most significant factor, particularly at the broad level at which I direct my attention. It is not, however, the only one. Other elements of social life negatively impact contemporary America's politics. For example, while advancements in technology have greatly improved social life in many respects, they also have their deleterious effects. Nothing that follows should be read as a denial of the existence of such other forces.
Third, the discussion that follows reflects a consideration of the present social circumstance and the opportunity associated with the cultural practice of law. It does not speak to how we might think about the other cultural practices that Americans take up--whether those that speak to the political sphere of experience or otherwise-and the role for their most representative figures with respect to this same phenomenon. In this way, the discourse is narrowly drawn and engages one slice--the slice about which it makes sense for me to speak--of an ultimately broad question. Necessarily, that broad question is left aside. (10)
THE CULTURAL FORM OF ECONOMICS AND AMERICAN SOCIETY TODAY
The starting point of the discourse is the influence that the cultural form of economics has on contemporary American society--the place that the cultural form of economics occupies in American political space. And that discussion begins with an explication of the cultural form itself. The first step in comprehending the present relationship of the economic way of life to the American political order is understanding what the economic manner of living looks like and, in light of the motivating concerns of this Essay, what the central pathologies associated with the form of being are. Only if we have a picture of what it means to experience the world "economically," one that reveals the way of life's main unhealthy features, can we grasp the hold that the cultural form of economics has on America today. At its core, the cultural form of economics is organized around four ideas. Taken together, these ideas provide the requisite insights.
The first idea reflects the metaphysical orientation of the cultural form of economics and is, accordingly, the true starting point of the economic way of life. That idea is the sovereignty of the market. For the economic way of being, the market reigns. It possesses a transcendental character and, correspondingly, stands as a sort of lord over the world. (11) The market has existential primacy and is that which ultimately orders things. In the economic way of life, the "invisible hand" of the market governs, providing direction and stability to human behavior.
In exercising its sovereignty, the market rules in a particular manner. Specifically, the market is a "pricing mechanism" that establishes a value--a "market value"--for the objects of individual interest. Market governance occurs in and through this pricing mechanism, coordinating the satisfaction of interests. (12) The sovereign character of the market, coupled with this specific character of its governance, points to the second idea that lies at the heart of the cultural form of economics, one that stands as a corollary to the market's existential preeminence. For the economic mode of being, the sovereign market's orientation toward the satisfaction of interests means that interests...