Kenneth Anderson—The Therapeutic as Rights Talk

Kenneth Anderson
"A New Class of Lawyers: The Therapeutic as Rights Talk"
(1996)

[1072] ..."social trustee professionalism"... Professional life was guided not only by technical expertise, but additionally it "promised to be guided by an appreciation of the important social ends it served. ...
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... a marriage of technical expertise and social purpose... Morally, it was based on authority and not merely on efficiency...

Over the last thirty years, Brint notes, this idea of the professions "has become increasingly disconnected from functions perceived to be central to the public welfare and more exclusively connected to the idea of 'expert knowledge'". ...

... From a sociological perspective, expertise is now a resource sold to bidders in the market for skilled labor. ...

The shift in attitudes of the professional classes, or at least those holding market-ready knowledge, has resulted in what Brint calls a "separation of community orientation and expert authority." It goes far, he believes and I agree, towards explaining the increasing gap between the (ever-remoter but evermore powerful) expert and the (increasingly resentful) mass of others, who are themselves in the grip, rather than control, of the market.

Both Brint and Kronman emphasize the instrumentalist, transactional, mobile ethos of the contemporary professional, and both stress that these characteristics are consistent with creatures who do not believe themselves to have any grip on "ends," such as the public welfare espoused by the older social trustee professionalism, except as temporarily and contingently defined by bidders in the market for expert services. Brint goes even further, based upon his empirical research into the attitudes of professionals, and notes that today:

even people in the original fee-for-service professions rarely point to the social importance of their work as justification for social distinction. Instead, they justify differences between themselves and other people by discussing the kinds of skills involved in their work . . . 'I see no reason to think that our

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work is more important to society than the work of an electrician or an auto mechanic,' said one life scientist, expressing the views of many. There is an appealing note of democratic egalitarianism in this statement, but in the background there is, more importantly, the triumph of expertise as a basis of distinction that requires no moral vaulting.

Well, that is a darn good point, and it darn well ought to apply to artists too, who tend, IMHO, to find ourselves wildly both under- and over-valued in relation to electricians and auto mechanics, depending on who is doing the (mis-)valuing.

One might therefore think...that the moral condition of the contemporary professional is essentially relativist, a refusal to take stands on the ends of social policy. Expertise, as Brint puts it in his well-wrought phrase, is its own vaulting; it needs no other, and indeed is capable of recognizing no other—except the bidding of the market.

If there is to be any legitimate basis for own-vaulting, it would be found, I think, in the particular manners and processes of acquiring the expertise, less so (perhaps paradoxically) in how it is dispensed. Surely these formal processes of education and training have changed as drastically as, and concurrently with, those other, broader social processes which have delivered the separation of community orientation and expert authority and are ever further stratifying the matter of being in the grip, rather than control, of the market.

Perhaps this makes it very difficult (and meaningless too) to sort out the effects of one from the other; I cannot help but think regardless that becoming a musican and becoming a doctor actually were more similar processes in times past than they are now, even though the rhetoric of the contemporary Cultural Entrepreneur by which this comparison has been colloquialized is of quite recent vintage.

Brint notes this simulataneous relativistic refusal to take stands on the moral ends of social policy coupled with the contemporary professional's assertion that expertise is its own authority and source of legitimacy in observing that on social issues

many professionals now have views that are better described as libertarian than liberal. Professionals very frequently want government to stay out of issues involving moral choices, and they even tend to take a stance in favor of community self-determination when it comes to the purposes of education and other socializing institutions. This tells more than is immediately apparent about the character of contemporary professionalism. Very little could be as distant from the spirit of the old professionalism—with its emphasis on community stewardship and cultural authority—as this shift toward libertarian views on issues related to cultural choice and social relations. It is the political hallmark of a new "expert" stratum with strong interests in marketable knowledge and weaker concerns about the relationship between community and authority.

Yet Brint's does not seem to me to be the only interpretation of this data.

I sure hope not
,

because

equating a

libertarian

belief
in

community self-determination

with

a
contemptible

weakness

of

concerns about the relationship between community and authority

this

seems

rather

jaundiced

.

From my own experience, I would suggest...that the apprently modest instrumentalist claim that professionals
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do not privilege ends masks, for many lawyers and perhaps a wider range of professionals, not a deficit of ends, but instead an excess of them. Many professionals, especially lawyers, in my experience, in fact have such a deep attachment to ends that any discussion of them with those who might disagree is quite literally pointless.

I think he is on to something very important here.

The silence of expert elites about ends can wrongly appear to betoken indifference or a modesty about an attachment to ends. Whereas, I would suggest it may actually stem from a belief that there is no point and no moral need to convince anyone, especially those who might disagree with you, of the virtue of one's ends. The diffidence may be strategic. It is better to be silent as to ends in any form of discourse that would require you to acknowledge other views as equal in stature to your own; it is better to present your own as the fait accompli...
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... In my own experience, the professional world is filled not with people who have no fixed beliefs, but with people who have so very, very many—but are unwilling to admit to them as such because that would require arguing their merits without the crutch of reporting them as expert opinion. If there is anything to this observation, then contemporary professionalism consists of considerably more than the auction of skilled services in a market. Such strong attachments to social ends lead to a hierarchical and anti-
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democratic division between the experts and everyone who lacks the credentials and language to challenge the pronouncements of the experts.

Well, color me simplistic, but if the very idea of expertise is so much permitted to exist, then there cannot be any real basis on which non-experts might challenge experts in their own practices. It seems to me the real question is how a community produces its experts and how their mandate is bestowed. And at that point the reclamation of expertise from the relativist refusal to take stands on the ends of social policy would seem not merely to suggest but to require a localist (which is NOT the same thing as a libertarian!) orientation.

It is not implausible to characterize this division as a class divide between professionals and the rest of society. But this observation brings us to consideration of a theory that can account for it in class terms, the so-called theory of the New Class.

Tell me more.

[1090] When lawyering becomes the means to infuse therapeutic ends into the public and private by privileged access to the dividing line between them, then notwithstanding all its talk of rights, it becomes a profoundly illiberal profession. In one of my own very few conversations with Lasch, in 1991, I put this to him. He responded that he saw lawyers as an essentially New Class conduit for the authoritarianism of the regime of public therapy. This Essay has, therefore, sought to set out at least the form of argument...for what that might mean, in order to ask what happens to lawyers and the law when the dominant paradigm of social control becomes therapeutic but its language remains the language of rights.

Beyond that, Lasch said, the issue really was the transformation of rights talk from a liberal discourse...into a therapeutic discourse. Yet, he went on, the specification of that transformation was something that needed to be examined from within the law
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and the legal profession; it was a task, he thought, peculiarly appropriate to lawyers and peculiarly difficult for intellectual historians like himself.

So perhaps Kronman ought to look further afield than he does for an answer to the unhappiness of lawyers; perhaps he ought to take a frankly class, and not just market, view of lawyers, and consider their place in a specifically therapeutic society. If he were to do so, he might well conclude that today's lawyers are, if anything, over-professionalized, and unhappy in part because they sense, as others sense, the brittleness of professional identity and its inability alone to sustain the human spirit... Brint too, having demolished one version of the New Class thesis, perhaps ought to consider the continued relevance of another, that of the New Class in service to monopoly capital maintaining its grip upon a culture of several narcissisms.

As for Lasch, the issue of the New Class and its lawyers is authoritarianism. In an age when the therapeutic has appropriated rights talk, and with it lawyers, turning it and them into agents of New Class authoritarianism and social control, the real question that needs to be answered is why there exists the continued "hegemony within the public culture of an essentially indeterminate and at the same time absolutist discourse of rights." The answer Lasch gave by the end of his life was that it predominates because, far from being merely a language of individual liberty or even unbridled individual license...it is today a language of state authority, a language of therapeutic paternalism; those who actually dream of being "liberals," in Morris' sense, will not reclaim rights talk any time soon. ...

Lawyers are deeply complicit in this colonization of the language of rights by the culture of therapy. They participate because it serves the agenda of a class that, unfamiliar with democracy except as an impediment to its social engineering, is incapable of any form of discourse that is not directed from the top to the bottom. Expertise, particularly in the social sciences, is a language of hierarchy and social control, and lawyers today, as a professional formation within the New Class, deploy the language of rights to the end of making the therapeutic coercive in the public sphere.

It is not a glorious profession because it is not a glorious class, and lawyers are right to be unhappy.

[emailed to self, 9 December, 2021]