1. 1
LEGAL THEORY
ON PROFESSIONALISMS
Richard A. Posner (1998). ‘Professionalisms,’ the J. Byron McCormick Lecture at the
University of Arizona College of Law, November 13, 1997, Arizona Law Review, Vol.
40, pp. 1-15.
INTRODUCTION
What is professionalism? Why does Judge Richard Posner of the U.S. Circuit Court
of Appeals, Seventh Circuit and the University of Chicago’s School of Law use this
term in the ‘plural’ in his J. Byron McCormick Lecture of 1997? This essay will
review the main points raised by Judge Posner on that occasion in the attempt to
explain why professionalism matters in the law. The uses of the term ‘professionalism’
that Judge Posner has in mind include the following: the term ‘professional’ is
related to the mediaeval guild but it also means genuine professionalism in the sense
that the quality of the work being done is better than before. Judge Posner points out
that he is not the first to study the history of the professions. This is something that
sociologists like to do; the sociology of the professions is interested in the law as a
profession, and a number of studies have been produced to delineate what
constitutes the legal profession. It is important to note at the outset that not all
occupations are professions. Sociologists, for instance, have come up with a list of
professions. What these professions have in common is a specialized form of
knowledge and that it is of ‘considerable public importance.’ Professions are usually

2. 2
regulated; there are a number of criteria that have to be fulfilled for entry into any
given profession. The basic assumption in any given profession is that a professional
should go beyond his own self-interest while serving the needs of clients. This
definition is useful in studying professions like law and medicine. What sociologists
do then is to set out the ‘family resemblance’ between the professions in order to
define what a profession really is. So whether a profession has a ‘socially valuable’
form of knowledge or not at its core, it must at least induce such a belief in those
who wish to either enter the profession or provide the services already available
within the profession to clients. In other words, professionals should be
knowledgeable of the limits of the profession to which they belong. Most
professionals try to cultivate a ‘professional mystique’ while dealing with clients
which Judge Posner feels is often not justified since it promises more than it can
deliver. Some of the attributes of the professional mystique include obscurity,
credentialism, charisma, resistance to sub-specialization, lack of hierarchy, altruistic
pretense, anti-competitiveness, and being anti-algorithmic in its orientation. Genuine
professionalism is about going beyond these limitations which mar the professions.
The basic question for Judge Posner then is whether the law can aspire to be such a
profession?
RATIONAL EMPLOYMENT PRACTICES
In order to become a genuine profession, the law must further rational employment
practices. In order to do this, lawyers will have to go beyond cultivating a mystique
to ‘deploying a body of genuine, specialized, socially valuable knowledge-based
skills.’ How exactly they go about doing this will determine whether the law will be
held in high regard as a profession. The ‘growing professionalism of the law’ in
recent years is related to taking seriously the attributes that Judge Posner lists above
in the attempt to take corrective action. Lawyers have tried to be less obscure in their
dealings by opening up to interdisciplinary studies on law, the legal profession, and
the legal system. External studies of the law have become as important as internal
approaches. This has reduced the levels of obscurity that constituted the discourse of
the law. Charisma is less of a requirement for the practice of law; and the model of

3. 3
the lawyer-statesman is in decline. Lawyers are more likely to be specialists and this
means that they are positioned as technical experts rather than as altruists. A great
deal of the routine work is being done by paralegals whose services are more
affordable than that of lawyers. There is not only a huge increase in the levels of
competition for clients, but the ‘impediments to competition’ are also being
dismantled within the legal profession. There is also a consequent increase in the
levels of hierarchy where each level does a different kind of work. This is the case for
both law firms and the federal judiciary. While earlier law firms had only partners
and associates, they now have paralegals, income partners, and equity partners as
well. While the judiciary had only district and Supreme Court judges in the past,
there are many more levels in the hierarchy now; these include magistrates, district,
and circuit judges along with Supreme Court Justices. These levels allow a greater
degree of specialization in the legal profession and the system than ever before. This
relationship between hierarchy and specialization not only increases the levels of
efficiency, but also the competence of the legal personnel involved in the legal
system. So the legal profession is less dependent on charisma and mystique to attract
and retain clients. The profession has also benefitted from a number of legal reforms,
increase in litigation, deregulation, and so on. There is also a decrease in the levels of
discrimination and nepotism and an increase in rational employment practices.
These are the reasons why Judge Posner believes that there is an increase in the
levels of genuine professionalism in the legal system.
INCREASE IN PROFESSIONALISM
The increase in professionalism is however not just specific to the law. It can also be
seen in the armed forces as a part of the corrective measures taken by the U.S.
government after the Vietnam War. The increase in levels of professionalism and
specialization are also related to the fact that the economy is more knowledge-based
than ever before. The increase in ‘good professionalism’ then is related to society’s
ability to deploy knowledge-based services in order to increase human welfare at an
exponential rate. This has led not only to an increase in the levels of professionalism
amongst professionals but to also the professionalization of all work. Judge Posner’s

4. 4
arguments here bear a lot of resemblance to Peter Drucker’s work on the knowledge-
based economy and the increasing importance of the knowledge worker. So basically
what is at stake here is to identify the social conditions under which an occupation
becomes a profession and the conditions in which the professional attitude is not
reducible to the professions but encompasses all forms of work. Sociologists of the
professions are mainly dependent on the insights of Émile Durkheim and Max
Weber in these areas of study. These theorists were mainly interested in describing
how the practices of work are subsumed under the model of bureaucratic rationality.
A good example of this is university and hospital administration in the United
States. These areas have gone beyond what a few scholars and doctors could
accomplish from an organizational point of view. They now encompass areas of
managerial expertise involving knowledge of the entire MBA curriculum. In other
words, professions are becoming business-like in their orientation; this is true for
non-profits as well. The implications of ‘this tide of professionalism’ for the legal and
medical professions have not been fully understood, but this is an area of sociology
that will become increasingly important to explain what the scope of these
professions really is and will become in the future. Judge Posner argues that even
greater levels of professionalism are required in the law but because of the political
dimensions of legal practice this has not been possible. The televising of trials on US
television channels he feels has not brought about an increase in the levels of public
consciousness on what the law is as a profession. This is the case for the telecast of
confirmation hearings to the federal judiciary as well. It is however not clear why that
should be the case. Federal judicial appointments require much higher levels of
judicial experience than ever before, but that has not necessarily improved the
quality of judicial opinions. That is because judicial opinions do not provide
adequate insights into how judges really think or how the courts function in a
democracy. This has led to an increase in ‘window dressing’ rather than the kind of
professionalism that Judge Posner is looking for. Judge Posner’s disillusionment
probably has to do with the fact that legal discourse is not able to secure its
foundations in theory. Judge Posner is not enthusiastic about affirmative action and

5. 5
political correctness either since these approaches to social justice have reduced the
levels of professionalism in the legal profession.
CONCLUSION
What then should be done? The solution, according to Judge Posner, is to ‘overcome
the law.’ What does this mean? It simply means that in order to manage our
expectations of the law, we must situate it as going through ‘a transitional phase.’
Judge Posner’s thesis is related to arguments that were first made by Justice Holmes
in his paper on the ‘path of the law.’ The main point that Justice Homes made was
that the law is the secular equivalent of revenge. In the years to come, it will become
a form of ‘social control’ but will not be ‘recognizable’ as law. Law in the
recognizable sense is connected to morality, tradition, and logic. Any extension of
the law is thought to be necessarily in the form of a ‘deduction, analogy, or
interpretation from existing doctrines.’ This model of the law is precisely what
Justice Holmes considered to be ‘epiphenomenal, dispensable, obscurantist, and
transitory.’ In this model, litigants are mainly preoccupied with predicting what the
judiciary will do in any given case by using the legal materials available. In this
model, the law is not really interested in mental states, but decides in terms of
‘damages and dangerousness.’
What is really required, Judge Posner argues, is a model that would be receptive to
cost-benefit analysis as the main form of adjudication. This means that torts will give
way to forms of social insurance and criminal law will try to prevent crime rather
than punish crime. In order to make these legal innovations possible, areas like
economics and the social sciences will have to be aligned with the law. It will also

6. 6
become necessary to incorporate artificial intelligence and allow a greater degree of
specialization in the judiciary. This is much more likely to make the law into a ‘goal
oriented policy science consecrated to the perfection of instrumental reasoning.’
And, even if it doesn’t, concludes Judge Posner, it will at least generate ‘a beneficent
national movement towards the professionalization of the professions.’
SHIVA KUMAR SRINIVASAN