WILLIAM ROSE

LEGAL INDETERMINACY AND/AS PROFESSIONAL EXPERTISE

ABSTRACT. One of my concerns here has to do with what I perceive as the possibleelision of the normative possibilities of law – and, therefore, the possibility of a moredemocratically meaningful understanding of justice in the space provided by law. It is anattempt to think seriously about the claim that “law provides a terrain of contestation onwhich the powerless can hold the powerful to account by insisting that [the] legitimatingrhetoric [of liberal legalism] be turned into action.”

Realism, says David Luban, is “the dominant school of jurisprudence intwentieth-century America. This view so pervades the culture of lawyersthat one law school dean described it as the ‘ordinary religion of the law-school classroom’. It is not a gross exaggeration to say that some versionof realism is believed by every practicing lawyer.”1 What might it mean,however, for a lawyer to believe in “some version of realism?” Or, rather,for whom might it have meaning – beyond the lawyer – that he/she adheresto certain fundamental tenets of a professional(ized) faith? Moreover, whatmight be the connection between such an ideological/epistemological posi-tion and the claims (explicit or implicit) of professional expertise – thepeculiar commodity lawyers seek to market to clients? Or, perhaps, not a‘commodity’ as such.

A ‘professional’, says Samuel Weber, is “a specialist who has under-gone a lengthy period of training in a recognized institution (i.e., profes-sional school), which certifies him as being competent in a specializedarea; such competence derives from his mastery of a particular discipline,an esoteric body of useful knowledge involving systematic theory andresting on general principles. Finally, the professional has, traditionallybeen understood to ‘render a service’ rather than provide an ordinarycommodity – and it is a service that he/she alone can provide.” Accordingto Weber, “[i]t is this latter aspect of professionalism which lends its practi-tioners their peculiar authority and status: they are regarded as possessinga monopoly of competence in their particular field.”2

1 David Luban, Lawyers and Justice: An Ethical Study (Princeton, NJ: PrincetonUniversity Press, 1988), 19.

2 Samuel Weber, “The Limits of Professionalism”, in Institution and Interpretation(Minneapolis: University of Minnesota Press, 1987), 25.

International Journal for the Semiotics of LawRevue Internationale de Semiotique Juridique 16: 425–434, 2003.© 2003 Kluwer Academic Publishers. Printed in the Netherlands.

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Weber emphasizes the fact that such services are ‘rendered’ and notmerely ‘sold’; a move whereby the professional “sought to place his activi-ties outside of the pale of ordinary commodity relationships.” Accordingly,“[t]his was, and has remained, a decisive feature of the professional who,while offering his services for pay, nonetheless claims for them a valueirreducible to that determined by the market.”3 My question is whether‘realism’ complicates this in any important way.

At the risk of gross oversimplification, one might say that legal realism,as an approach to understanding the nature of legal reasoning, had, as itsoriginal intent, the desire to render more visible the twin themes of uncer-tainty and complexity in American law. Such exposure simultaneouslyraised the specter of a politicized (or potentially ‘politicizable’) judicialsystem. In this form, realism lived its theoretical life – and continuesto do so – critical of, and in reaction to, formalism and objectivism inlegal thought. Glossing Roberto Unger’s manifesto for a new generation ofrealist thinkers, Roberta Kevelson has helpfully characterized the formeras depending “on the ability of the judiciary to use the rules of law asaxiomatic truths and to deduce decision regarding the case in hand fromthese ‘timeless’ rules. Objectivism, similarly idealistic, stands for faith inthe authority of the legal materials, in the guiding principles of theory andin the system of statutes; it is accepted that these are manifestations of anundoubtable authority.”4

One target of this contemporary radical critique of law – of liberallegality – is the very ideal of the rule of law. Perhaps, in part at least,the argument may be understood as a more sophisticated restatement ofthe familiar refrain: all law is politics. The position is grounded in thecritical recognition of an allegedly fatal blow to the rule of law ideal: the“indeterminacy thesis,” which can be understood in contrast to the notionof rational determinacy, a claim that the authoritative legal materials andtheir reasoned elaboration by judges yield pre-existing, discoverable, rightanswers to legal questions.

While betraying a continued allegiance to the ‘judge-centeredness’of traditional common law legal theory, contemporary critical legaltheorists nonetheless maintain that judicial decision-making is not ration-ally determinate, and that there is no distinct mode of legal reasoning thatis separable from political ideology. Some have argued that the inherentindeterminacy of language in general, and legal rules in particular, justifydoubts about the determinacy of any legal system and the exercise of

3 Ibid., at 28.4 Roberta Kevelson, Peirce, Paradox, Praxis: The Image, the Conflict, and the Law

(Berlin and New York: Mouton de Gruyter, 1990), 135.

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power legitimated through reference to such a system. To the extent thatliberalism rests on a foundation of determinate rules and their application,it thus becomes necessary for liberalism to rebut this form of rule-skepticism in order to (re)claim legitimacy. For example, Joseph Singerhas suggested that “[d]eterminacy is necessary to the ideology of therule of law, for both theorists and judges. It is the only way judges canappear to apply the law rather than make it.”5 The claim that law is notan autonomous sphere of activity, separate from the realm of politics,problematizes the traditional understanding of the judge as a neutral arbiterof legal disputes, objectively identifying and applying the law to a givenfactual situation. Rather, the rule of law, from this perspective, seems littlemore than an ideological cover for the arbitrary and unconstrained exerciseof political power.

The focus of this critical – or ‘realist’ – analysis is, as usual, on thejudiciary. But what of lawyers? Such claims, ultimately at least, wouldseem to risk undermining the legitimacy of the practicing bar, whoseauthority and power ostensibly rest on its monopoly over professionally‘determinable’ legal doctrine and procedural rules. As Tocqueville under-stood, and contemporary sociologists of the professions have maintained,the legal profession’s authority clearly seems to derive from an assertedmastery of a politically neutral and objective body of knowledge. Inhis classic work, Democracy in America, Tocqueville famously observed“[s]tudy and specialized knowledge of the law give a man a rank apartin society and make of lawyers a somewhat privileged intellectual class.The exercise of their profession daily reminds them of this superiority;they are the masters of a necessary and not widely understood science.”6

And Magali Larson has pointed out that the professions characteristicallyjustify their special status by claiming “cognitive exclusiveness”: a uniqueaccess to some area of knowledge that is deemed crucial to the well-beingof society.7 The exact nature of this “cognitive exclusiveness” is anothermatter, however. One might assume that it consists of technical proceduraland doctrinal knowledge. Yet, whether the referent need be determinate (orprofessionally determinable) legal rules; or whether it is some other set oftexts emerges, then, as a question.

5 Joseph Singer, “The Player and the Cards: Nihilism and Legal Theory.” Yale LawJournal 94 (1984), 1–70, at 12.

6 Alexis de Tocqueville, Democracy in America, trans. Henry Reeve; rev. FrancisBowen; ed. Phillips Bradley (New York: Vintage Books, 1990), 264.

7 Magali Sarfatti Larson, The Rise of Professionalism: A Sociological Analysis(Berkeley: University of California Press, 1977), 15.

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After extended contact with legal practitioners – some of them at least –one might come away with an overwhelming sense of skepticism regardingthe existence and/or possibility of a rule governed system of law. Indeed,in his ethnography of the legal consciousness of the “welfare poor,” AustinSarat observes that “[f]ew of the recipients think that the decisions madeby lawyers . . . or other legal officials are neutral, disinterested, impartialor rule governed. Law is talked about as a thoroughly politicized patronagesystem which attends to who you are and whom you know. . . .”8 From theinside the legal system’s flaws are, undoubtedly, more glaringly apparent.A government of laws and not of persons seems, for the most part, less anideal, and more a naïve wish. Judicial decisions often are revealed to bethe product of personal bias or political ideology, rather than the neutral,objective application of the law to the facts. First-year law students soonenough learn that legal doctrine can be manipulated to support virtuallyany position in a given dispute. Uncertainty, or doctrinal indeterminacy,seems unalterably the state of affairs. Legal rules do not determine legaloutcomes in court; rather, individual interests and behavior do. The lawfinds its worth principally as an instrument to be deployed by various legalprofessionals in order to achieve their own desired ends. This, we are told,is the lesson of legal realism.

Some time ago Martin Shapiro urged us to expand our field of inquiry– when thinking about law – beyond the limiting frame of appellatejudicial opinions, and to focus instead on the language of lawyers. Heasked: “What if we began our study of law with the proposition thatlaw is not what judges say in the reports but what lawyers say – to oneanother and to clients – in their offices?”9 According to Shapiro, “suchan approach would give us a more accurate description of law as it is.”10

And, Sanford Levinson has identified the need to develop a “jurispru-dence of lawyering,” that would take account of the interaction between

8 Austin Sarat, “ ‘. . . The Law Is All Over’: Power, Resistance and the Legal Conscious-ness of the Welfare Poor”, Yale Journal of Law and the Humanities 2 (1990), 343–379, at356.

9 Martin Shapiro, “On the Regrettable Decline of Law French: Or Shapiro Jettet LeBrickbat”, Yale Law Journal 90 (1981), 1198–1203, at 1201.

10 Shapiro, supra n. 9. Certainly, such work is now being done. One can look to thestudies of that group of socio-legal scholars formerly associated with the Amherst Seminaron Legal Process and Ideology. Christine Harrington, Sally Merry, Austin Sarat andBarbara Yngvesson in particular have produced a valuable body of literature of the sortShapiro calls for. Yet, I would suggest as well that the extra-judicial writings of OliverWendell Holmes, Jr., from 1870 onward, could be characterized as an attempt to develop a“jurisprudence of lawyering.”

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theoretical and everyday discourses of law.11 For Levinson, the allega-tions of nihilism aimed at critical legal theorists overlook the purchasethat the indeterminacy thesis has with the practicing bar. According toLevinson, “the central source of so-called legal nihilism . . . is the behavior(and supporting ideology) of the practicing bar. For it is there – and notmerely in the abstract writings of legal academics – that one will discoverthe genuinely important emphasis on the inherent indeterminacies withinthe law and the concomitant ability to distinguish practically any caseor construe practically any statute in a way that will count at least as a‘good faith argument for the extension, modification or reversal of existinglaw.’ ”12

Similarly, David Wilkins has lamented the fact that the contours ofrealist legal discourse have “generally been confined to either the abstractrealm of legal theory or the often bitter debate over judicial interpre-tation. Curiously neglected has been any systematic investigation of theeffect of core realist insights on traditional understandings of the lawyer’srole.”13 For Wilkins, such neglect is “unfortunate.” His concern is with theethical considerations of the lawyer/client relationship, and “[b]y failingto explore the implications of the realist critique for prevailing assump-tions about the relationship among lawyers, clients, and the legal system,the traditional model of legal ethics masks the extent to which lawyersinevitably exercise discretionary power over the substantive content oflegal rules.”14 Wilkins seeks, then, to examine what the indeterminacythesis implies for legal ethics. On his reading, however, the ‘real worldof legal practice’ is not radically indeterminate. Lawyers are, in fact,constrained says Wilkins, by both practical and professional considerations– the concrete considerations of litigation and the constituent norms of aprofessional legal culture. Yet, I find Wilkins’ claims ultimately uncon-vincing. In part, I think, this is owing to our differing characterizations of‘actually existing realism’. Reading the lawyer/client relationship, Wilkinsdirects his principal focus toward the perceptions of lawyers; my concernis with the perceptions of clients.15 Certainly they are mutually constitutive

11 Sanford Levinson, “What Do Lawyers Know (And What Do They Do WithTheir Knowledge)?”, Southern California Law Review 58 (1985), 441–458 and SanfordLevinson, “Frivolous Cases: Do Lawyers Really Know Anything At All?”, Osgoode HallLaw Journal 24 (1987), 353–378.

12 Levinson, supra n. 11, at 368.13 David Wilkins, “Legal Realism for Lawyers”, Harvard Law Review 104 (1990), 468–

524, at 468.14 Wilkins, supra n. 13, at 468.15 I readily concede that such a formulation would seem to render the concept of ‘client’

in unacceptably monolithic terms. Nonetheless, I believe that, given the dynamic I am

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of one another, but I want to analytically disentangle the two, if only for amoment.

Some hint of what I am after is offered in the work of Austin Saratand William Felstiner, in their study of divorce lawyers and their clients.Fulfilling Shapiro and Levinson’s desire for a jurisprudence of lawyering,Sarat and Felstiner find that many members of this sub-specialty withinthe profession often characterize the legal system, in their interactions withclients, as a highly indeterminate and radically subjective decision-makingprocess. Legal rules are said to play little part in a given decision. Rather,the idiosyncrasies of the judge are predominant. The only constrainingfactor in an otherwise ‘arbitrary’ process (from the client’s perspective)is the lawyer’s knowledge and understanding of the hidden transcripts ofthe law – how the system really works. Knowledge of the judge, his or herbiases and peculiarities, which clerk will help with late filings, etc., consti-tutes the “professional knower,”16 the experienced lawyer who can give amore or less competent ‘reading’ (predictions of future behavior) of thelegal landscape. The traditional notion of professional authority derivingfrom special access to an objective body of knowledge (i.e., the formallegal rules) takes on new meaning here. Sarat and Felstiner heard lawyersconsistently debunk their clients’ belief in the relevance of legal rules to theadjudication of claims within the legal system. Rather, what was relevantwas knowledge of people and places far more inaccessible to the averagelayman – the non-knower – than the rules themselves. What Sarat andFelstiner describe is realist legal consciousness at work. They listen tolawyers identify, to their clients, the indeterminacy of rules within the legalsystem in order to advance their own (i.e., the lawyer’s) claims to authoritybased on the contingencies of ‘local knowledge’. And, they testify to non-lawyer citizens experiencing a loss of control vis-à-vis the law and, thereby,becoming ever more dependent on the professional knower – the lawyerexpert. The real world of the law was not the one they (the client) sawwith their own eyes; it was something hidden from their view. Luban hascharacterized this situation as a type of “Copernican Revolution” in thelaw: we are taught to mistrust our everyday understanding of the world welive in, being told that “[t]he truth about legal structures must be radicallydifferent from the way they manifest themselves in practice.”17

trying to capture, certain features of the lawyer-client relationship may be abstractedbeyond its range of possible concrete manifestations.

16 William Conklin, Phenomenology and Modern Legal Discourse: The JuridicalProduction and Disclosure of Suffering (Aldershot: Ashgate Publishing Company, 1998).

17 David Luban, Legal Modernism (Ann Arbor, MI: University of Michigan Press,1994), 3.

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Legal texts, as signs of the law, disappear only to find new dwellingplaces. The judge is no longer the oracle of an external law, as in a classicalformalist representation, but the site upon which the law is traced. Thelawyer reads the law off of the body of the judge and the spaces sheinhabits. But, these new inscriptions lack permanence. They are inherentlyunstable and indeterminate. This is so, it seems, because the relevant text isproduced by the lawyer’s reading itself. Realism, as a form of professionalexpertise, discursively produces, and then it manages indeterminacy. Sucha reading asks us to reject the self-presentation of law as an objectivesystem of rules, neutrally applied by independent judges whose accessto the law is through a direct course of legal reasoning in which theyhave been specially trained. We are urged to be suspicious of, and seekto pierce, the false appearance that law creates; to look beneath the surfaceof the law in the belief that appearances too often deceive.18 This means aswell that we can no longer believe that the law can make any claims of itsown; rather, it is valued only as a means to some other end. Paradoxically,however, in this reading, the judicial voice takes on new force – the lawis simply, but powerfully, what the judge says it is. Powerful, because itseems uncontestable on legal terms – at least as the layperson might wantto articulate those terms.

One of my concerns here has to do with what I perceive as the possibleelision of the normative possibilities of law – and, therefore, the possibilityof a more democratically meaningful understanding of justice in the spaceprovided by law. It is an attempt to think seriously about the claim that“law provides a terrain of contestation on which the powerless can hold thepowerful to account by insisting that [the] legitimating rhetoric [of liberallegalism] be turned into action.”19 The focus of this realism in practice – atleast that limited to what I have gleaned from Sarat and Felstiner’s work20

– is not on the normative content of law, but the observable behavior oflegal officials, whose decisions are explained by a surface reading of thepolitical, economic, or psychological interests that really motivate them.Law becomes mere epiphenomena. As a consequence – yet simultaneously

18 Oliver Wendell Holmes, Jr., “The Path of the Law”, in The Collected Works of JusticeHolmes: Complete Public Writings and Selected Judicial Opinions of Oliver WendellHolmes, ed. Sheldon Novick (Chicago: University of Chicago Press, 1897/1995).

19 Austin Sarat, “Going to Court: Access, Autonomy and the Contradictions of LiberalLegality”, in The Politics of Law: A Progressive Critique, 3rd edn., ed. David Kairys (NewYork: Basic Books, 1998), 97–98.

20 Sarat and Felstiner may well take issue with my appropriation of their work. Inter-preting the results of their ethnography of lawyer-client conversations, they are insistentto emphasize the possibility (and reality) of resistance; that clients are not simply passivevictims of the lawyer’s domination.

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productive of this effect – legal experts stake their claim to professionalauthority on the ability to recognize the interests at play; to see things‘hidden’ from the rest of us. Ultimately, I guess, my concern is with theinevitable tendency to subsume our legal vocabulary to what the legalprofession says is law.

Certainly, realism in the legal academy has provided a powerful andcompelling critique of formalist approaches to legal reasoning. Yet as aform of legal knowledge, a new language of professional expertise, realismhas also provided the means by which to reclaim the authority of theprofession in the wake of its own apparent assault on dominant formsof reasoning under girding the profession. That is, realism seems to haveadvanced in the wake of its claim at having demystified the obfuscationsof formalism, while simultaneously eliding its own role in constituting anew legal space that is no more real and, ultimately, no more hospitable topopular access than that which went before.

This sort of tension is clearly visible in the work of Peter Gabel andPaul Harris. Working from a critical position that adopts many ‘realist’sensibilities, Gabel and Harris reject the liberal valorization of the ruleof law and urge us to realize that “the legal system is an important publicarena through which the state attempts – through manipulation of symbols,images, and ideas – to legitimize a social order that most people findalienating and inhumane.”21 Nonetheless, they insist that “the very publicand political character of the legal arena gives lawyers, acting together withclients and fellow legal workers, an important opportunity to reshape theway that people understand the existing legal order and their place withinit.”22

They identify both what is at stake and what are the possibilitiesfor critical legal thought and practice. Yet, they seem to ignore theirown complicity in the reproduction of domination through the very legalsystem they critique. For Gabel and Harris, politics is ubiquitous and itoverwhelms law. Its weakness here can be understood in the recognitionthat currently existing law is nothing more than an elaborate rhetoricalcover, masking the distribution of power among various interest groupsand individuals. Law is, then, nothing more than the product of thesesocial and political interests. Even so, according to Gabel and Harris, theradical/realist lawyer still has an important role to play in the advancementof a progressive politics within the traditional institutional apparatus of

21 Peter Gabel and Paul Harris, “Breaking Power and Building Images: Critical LegalTheory and the Practice of Law”, New York University Review of Law and Social Change11 (1982–1983), 369–411, at 370.

22 Gabel and Harris, supra n. 21, at 370.

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law. This role is, in part, to help clients understand law by piercing law’spretensions to formality and political neutrality.

I concede that there is much to agree with in Gabel and Harris’ analysis.Nonetheless, the question that nags at me – one about the image of law thatinforms this critique – seems, ultimately, to undermine their stated desirefor a ‘democratic’ reshaping of the legal order. Simply (and crudely) put:why do we need lawyers, radical or otherwise, to engage in critical political(or legal) analysis? Clearly, there is nothing unique that the lawyer, aslawyer, has to offer to those interested in making ‘progressive’ politicalclaims through law. Yet, the felt need for lawyers is very real. On a dailybasis people turn to the law for reasons other than those that might becharacterized as explicitly political – even though they may perceive thelegal process, and its official representatives, as having been tainted bypolitics and self-interest.

Such perceptions often issue in cynical characterizations of the legalsystem as something tantamount to a ‘game’. Indeed, this is what PatriciaEwick and Susan Silbey have found in their recent ethnography of popularlegal consciousness. They observe that

[t]here is one aspect of the law about which virtually all of our respondents agreed: oneof the most crucially consequential resources one can mobilize in a legal encounter isa lawyer. No matter how competent the individual, no matter how much experience orinformal knowledge citizens acquired, they generally acknowledge their amateur status inrelation to lawyers. Lawyers represent the professional players; their skill, experience, andstock of legal knowledge are seen as daunting when compared to the episodic and unevenlegal resources of ordinary people. Lawyers are seen as the go-betweens, the translators,initiated into the rules of the game.23

This perception may seem to be an inevitable one. Whether or not thisis the case, a more immediate problem is how we might challenge such asituation. Ewick and Silbey note that by “[r]ecognizing the central role oflawyers in shaping outcomes, people relied heavily on lawyers to definethe situation for them, assess its legal character, and pronounce whetherit was a case.”24 It is the power to “define the situation,” that must beresisted. By monopolizing the power to define the legal landscape, lawyers– intentionally or not – dramatically circumscribe the possibility of theclient expressing her own desires within the space of the law; they delimitthe legal imagination to a horizon associated only with professionallyrecognized concerns and possibilities.

The place I have been working my way toward, then, is a more self-consciously theoretical encounter with the problem of representation. This

23 Patricia Ewick and Susan Silbey, The Common Place of Law: Stories from EverydayLife (Chicago: University of Chicago Press, 1998) 152–153.

24 Ewick and Silbey, supra n. 23, at 155.

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is an issue that Derrick Bell has given eloquent voice to in his seminalessay, “Serving Two Masters.”25 There, Bell urged civil rights attorneysin the 1970s, in the heat of public school integration litigation, to listenand respect their client’s desires, even when such interests might seem tocut against more ‘legally’ appropriate decisions. And, Lucie White hasprovided us with a glimpse of ordinary citizens’ abilities to “undertakefor themselves, on their own ground,”26 the articulation of their needs anddesires within the legal process. What the work of both Bell and Whitesuggest is the need to think more deeply about the nature of representa-tion, and what currently passes for expertise. I have suggested that the twoconcepts are intertwined in important yet problematic ways.

One form of representation exists in the sense of functioning simply asan agent for the client’s expressed desires; the second form exists in termsof the lawyer’s discursive rendering both of the juridical field and – in somesense constituted by that rendering – of the juridical subject who comesbefore the law: the client. The more indeterminate the juridical field ismade to appear, then the greater value attached to the commodity of profes-sional knowledge. Further, the second form of representation poses thepossibility for the occlusion of client needs/desires, articulated in his/herown idiom, making the first form of representation inherently problematic.To conclude, but only as a way of beginning, I would urge the need fora certain transparency in representation, meaning that the lawyer should“defer if at all possible to [the client’s] selection of desires,” articulated inhis/her own idiom, speaking for the client “only by saying what [he/she]would say [if they too] were embodied as a lawyer.”27

Department of Political Science320 Robinson HallAlbion College611 E. Porter St.Albion, MI 49224USAE-mail: wrose@albion.edu

25 Derrick Bell, “Serving Two Masters: Integration Ideals and Client Interests in SchoolDesegregation Litigation”, Yale Law Journal 85 (1976), 470–516.

26 Lucie White, “Subordination, Rhetorical Survival Skills, and Sunday Shoes: Notes onthe Hearing of Mrs. G.”, Buffalo Law Review 38 (1990), 1–58, at 58.

27 Janet Halley, “Gay Rights and Identity Imitation: Issues in the Ethics of Represen-tation”, in The Politics of Law: A Progressive Critique, 3rd edn., ed. David Kairys (NewYork: Basic Books, 1998), 120.