THE LAWYER'S MYTH: REVIVING IDEALS IN THE LEGAL PROFESSION by Walter Bennett. Chicago: The University of Chicago Press, 2001. 251 pp. Cloth $28.00. ISBN: 0-226-04255-3.
Reviewed by Stephen Daniels, American Bar Foundation, Chicago, IL.
Walter Bennett's book deals with issues of importance within the legal profession-the profession's sense of itself and its place in the American polity, the level of satisfaction (or dissatisfaction) individual lawyers have with their work, and the nature of legal education. Bennett is among a long list of commentators within the profession who see crises in each of these areas. A former trial lawyer, state trial judge, and law teacher (all in North Carolina), his perspective in discussing these matters is that of an insider speaking to his fellow lawyers. Nonetheless, these are also important issues for those in political science who study and teach about the
legal system, and for those whose students aspire to a career in the law.
More specifically, Bennett is concerned with the moral or spiritual life of the individual lawyer and with the lack of concern within the profession for the lawyer's moral life. Lawyers, he argues, have fallen from a grace they possessed at an earlier time in our history. The root causes of this fall from grace are to be found in lawyers' greed and ego, which have resulted in the individual lawyer's loss of moral grounding and the loss of a moral vision for his/her professional activities. As a consequence of this fall, lawyers no longer hold the honored and influential place as leaders in the American polity they once did. This is his main thesis.
At first glance, Bennett's book is a fascinating argument about lawyers and the profession written in an engaging style and written with real passion. On reflection, however, it is a flawed, even disturbing work. Bennett's thesis is not one whose veracity he sets to demonstrate. Instead, it is just assumed to be accurate-a given. His discussion, although based on a set of extensive empirical claims about the past and the present, is not a report on an empirical study nor does it draw from or engage the substantial empirical literature in the social sciences about lawyers and the legal profession. This is unfortunate because there are a number of recent works that seem quite relevant for Bennett's discussion and whose findings would call into question much of what he takes as given (e.g., Van Hoy 1977, Seron
1996, Sarat and Felstiner 1995, Galanter and Palay 1991, Landon 1990). Curiously, Bennett does not discuss another recent work that shares his general concerns about the culture of the legal profession and also shares his interest in what might be called "narrative theory"-Michael Kelly's LIVES OF LAWYERS (1994)-and that does integrate the findings of empirical research into the analysis.
What are we to make of this lack of engagement with the literature? Rather than assume that Bennett has managed to miss almost everything, perhaps his lack of engagement is intentional. In addition to his
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substantive arguments about the legal profession, his book can also be seen as an argument for an alternative way of looking at the world, of identifying problems, and of devising solutions. The approach he takes is different from the norm in social science or in the legal academy. It is not, for example, the kind of legal scholarship criticized recently by Epstein and King (2002), and it goes well beyond our usual squabbles (quantitative versus qualitative, etc.) over how best to study legal phenomena. In asking us to accept his arguments about the profession's problems and his proposed solutions, Bennett is also asking us, in effect, to abandon the social scientist's approach and adopt the one he uses. Much of the passion in Bennett's writing is animated by his belief in this alternative perspective.
More important for Bennett than the literature or empirical analysis or reasoned analysis is the device that frames his entire discussion. It is one to which he was drawn as a result of attending retreats for lawyers conducted by a North Carolina psychologist and her lawyer husband. That device is the idea of myth in conjunction with Jungian psychology, and, in particular, the Arthurian myth of Parcival's quest for the Holy Grail. It must be said that this is not a study of myths in the legal profession, but a blueprint for systematically creating and disseminating myths in order to change ("restore") the profession. This changed profession can then help lead the American polity to a new ideal of social justice.
Bennett tells us that he is using this traditional myth as a metaphor, but its use goes far beyond the metaphorical. It provides an all- encompassing theoretical framework for him. He says:
"The consciousness we gain in our quest is a growing perception that we are not the center of the universe but merely a part of it, that there are cause and purposes much greater than ourselves . This must be more than intellectual understanding. It must be an emotional acceptance and a psychic (and, we hope, a spiritual) commitment. The mythological quest, then, becomes all-important. It teaches us the meaning of our lives if we attend its mysteries; it provides us the means of fulfilling that meaning by giving us a venue for service. It helps us understand the essential question and live out he answer to it" (p. 54).
In teaching meaning, this theoretical framework describes A past, A present, A process of change, and A prescription for the future. Factual accuracy in these descriptions, however, is not the issue, coming to consciousness or personal renewal is. The descriptions are simply a means to that end regardless of their veracity.
Rather than emphasizing factual accuracy or concurrence with the observable world, Bennett talks of a different set of standards for assessment. What is important is not empirical analysis or the kind of reasoned analysis we would expect for a normative argument or even intellectual activity itself. He speaks, instead, of the importance of emotion and spirituality, narrative or story-telling, practice or experience, and especially myths.
The best way to get a sense of Bennett's approach is to turn to him directly for illustration. In talking about the loss of professional mythology for lawyers (an important issue for him) he says the following with regard to the myths of an
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earlier time in the profession's history:
"In a profession given to testing stories against factual proofs, one is tempted to ask whether any of these ideals and archetypes (and, indeed, the stories which underlay them) were factually correct . But, of course, that is not the point . Narratives are powerful insofar as the story they tell us has the power to engage our minds, spirit, and emotions and to open us to the possibility of growth in the form of deeper understanding, broader perception, and greater consciousness. Whether the stories are actually true or not may affect their ability to sway us in this way, but not necessarily. Factual truth or accuracy is only one of many factors that may contribute to the power of a narrative" (pp. 28-29).
In talking about the need for a renewed set of professional ideals, he says:
"it does not follow that simply because we are uncertain of what are professional ideals should be and cannot prove their worth by reasoned analysis that such ideals are practically worthless. The benefits of leading a life dedicated to ideals are not open to this type of proof. Ideals speak to us emotionally and not empirically" (p. 92).
Also, in talking about the development of new myths and new ideals, he says:
"The way to heal the legal profession as a profession is to take our understanding of what a profession is . and reconceive the meaning of this definition in the context of our developing world. The task sounds simple enough, but it is not simple at all, because it is not an intellectual exercise. It is not something we can accomplish by our traditional methods of scientific analysis, empirical reasoning, and linear thinking. It must be accomplished holistically through practice - through a consciously developed practice - which restores community and rediscovers and reconsecrates ideals in meaningful context" (p. 93).
Bennett's book is a call to action for fundamental change in the legal profession, one drawing on a particular way of seeing the past and the present. In addition to that call, it is also a blueprint of sorts for restoring or renewing a lost state of grace in the profession (including two appendices outlining model mentoring programs for new lawyers and for law students). It is first and foremost a call for personal moral or spiritual renewal by individual lawyers. Everything Bennett proposes is built upon what he calls the "lawyer-hero" and the lawyer-hero's "inner journey" or "moral journey" or "quest for moral vision" or "spiritual journey" or "road
to consciousness" or "journey to self-discovery." At the heart of the quest is story-telling and the use of narratives to consciously create new myths about "lawyer-heroes" that will guide the profession.
The individual lawyer's quest is so important in Bennett's eyes because he\she is the foundation of a renewed professional and moral community which, in turn, is what will allow the profession to again play its special role as moral leader and arbiter in the American polity. The legal profession, in Bennett's view, should be a kind of close-knit, moral priesthood that leads American to some new ideal of social justice.
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For the quest-the traditional Parcival myth--to work, there must be a golden age and a fall from grace. Bennett offers us a mythical past of "lawyer-heroes" like John W. Davis, Daniel Webster, and Abraham Lincoln, and a picture of legal practice as an idyllic small-town practice within a close-knit legal community. He offers us a fall caused by lawyers' greed and ego that has given us a present of professional malaise and crisis. Also, as a model for the future he again offers an idyllic small-town practice, one emerging from a handful of oral histories of small city litigators and judges in North Carolina done by his students.
The extant literature would show that Bennett's descriptions of the past, the present, and the causes of change in the legal profession are simplistic at best and his proposed vision for the profession's future to be illusory. For Bennett, this assessment is probably irrelevant--or perhaps in his view such an assessment is part of the problem. Empirical research, reasoned analysis, and critical intellectual activity are the enemies of myth because they question the veracity and uses of myth. They expose and erode myth. For a myth-based process to succeed such things must be banished, and this is what makes Bennett's discussion disturbing. It is fundamentally anti-intellectual, a romantic's challenge based on emotion and spirituality as the keys to understanding the world around us. It is also apolitical,
despite Bennett's occasional talk about issues of gender and race. There are no politics or political forces in his world because everything reduces itself to that personal quest for self-discovery or spirituality or higher consciousness. The problems of the legal profession, as well as the problems of the larger world around us, are caused by a fall from grace and can be solved only by the individual's restoration to a state of grace. This is, indeed, a different kind of legal scholarship.
Epstein, Lee and Gary King. 2002. "Empirical Research and the Goals of Legal Scholarship: The Rules of Inference." UNIVERSITY OF CHICAGO LAW REVIEW 69: 1-133.
Galanter, Marc and Thomas Palay. 1991. THE TOURNAMENT OF LAWYERS: THE GROWTH AND TRANSFORMATION OF THE BIG LAW FIRM. Chicago: The University of Chicago Press.
Kelly, Michael. 1994. LIVES OF LAWYERS: JOURNEYS IN THE ORGANIZATIONS OF PRACTICE. Ann Arbor: The University of Michigan Press.
Landon, Donald. 1990. COUNTRY LAWYERS: THE IMPACT OF CONTEXT ON PROFESSIONAL PRACTICE. New York: Praeger.
Nelson, Robert, Rayman Solomon and David Trubek, eds., 1992. LAWYERS' IDEALS/LAWYERS' PRACTICES: TRANSFORMATIONS IN THE AMERICAN LEGAL PROFESSION. Ithaca: Cornell University Press.
Sarat, Austin and William Felstiner. 1995. DIVORCE LAWYERS AND THEIR CLIENTS: POWER AND MEANING IN THE LEGAL PROCESS. New York: Oxford University Press.
Seron, Carroll. 1996. THE BUSINESS OF PRACTICING LAW: THE WORK LIVES OF SOLO AND SMALL-FIRM ATTORNEYS. Philadelphia: Temple University Press.
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Van Hoy, Jerry. 1997. FRANCHISE LAW FIRMS AND THE TRANSFORMATION OF PERSONAL LEGAL SERVICES. Westport, CT: Quorum Books.
Copyright 2002 by the author, Stephen Daniels.