Anand, Rakesh K., Fordham Urban Law Journal
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
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. …