Profession: Lawyer Ruthless Criticism

Translated from Die Jobs der Elite: Eine marxistische Berufsberatung (München: GegenStandpunkt-Verlag, 1987)


That someone in our well-behaved society would make a business from violence is believed to be something only criminals are capable of; in democracies with somewhat laxer customs, at best also private crime fighters. In this context, bourgeois society would be completely incapable of functioning if professionally managed violence were to occur merely as the profession of a handful of thugs.

An entire army of educated men and women of honor provides for the omnipresence of violence — namely, public violence — in all social circumstances.

Even the most private. As soon as families want to sort themselves out, a legal adviser to the “intimate partner” he may look after, explains the coercive measures which the state protection of marriage and family gives him against the other and the other against him, and sets the appropriate procedure in motion. Of course, arguing, annoying each other, “living apart,” and beating each other up can be done by married couples all by themselves; and for the dependency on each other in which they have got themselves into, as well as for the life of claims and demands into which their love degenerates all too easily and quickly, the public authority is sufficient, with its corresponding regulations and the general awareness that a person has to be guided by the law even in his love life and not by his feelings and assessments of the situation — the other person does, anyway. Only the lawyer, however, makes available to the offended legal subject the appropriate repertoire of levers that the rule of law lends its power to; levers for extracting lasting advantages from the past at the expense of the ex-partner and exercising a little revenge at the same time. He plays the guide through all the claims against each other that are authorized by law and that only spring up when the interest in one another other has fizzled out. He gets the dispute going by interpreting the legal position of the spouse as the higher, more effective form of the spouse’s interests, and conversely by depriving any disagreement of the opportunity for a judicial “clarification.” In this way, he performs the services of an agitator for the morally outraged spouse and ensures that the infinitely superior coercive power of the state judicial apparatus takes the place of private hatred in accordance with its marriage protection regulations, hatred that private individuals can otherwise at best do to each other.

When it’s not about love, but about business, the lawyers are there right from the start, as soon as a business partner can afford their advice. They work on the terms and conditions and wording of contracts with the sole aim of committing the well advised party to the contract to as little as possible and the counterparty to as much as possible. For that, they must know and take under consideration the business interest of their client — in rent or delivery of goods, loan service or work performance … — under the sole aspect of not being at all sympathetic to that of the other contracting party — from the other side just as little; there is no content which entails and thus guarantees the conformity of the asserted interests; even in coming to an agreement, they remain opposed to one another, i.e., the benefit of one implies the disadvantage of the other — and vice versa; contractual unity only comes about on the basis of mutual dependency with persistent differences; with the contract, the partners thus submit themselves to a compulsion that each simultaneously seeks to exploit for himself against the other. This contradictory circus, which lawyers serve, is not a special case, but the normal form of all business relationships customary in a bourgeois society. They all involve hostility to the interests that have come to an agreement, and can therefore not at all reliably stick to their agreement without a superior force. The bourgeois authority has not failed to take this into account. With the active assistance of the legal profession, it has created a law of contract that has long since included every situation and provides a means of defense for every trick and feint. To keep tabs on it requires a one-track professional; the lawyer as such offers his services to the wheeler-dealers.

Of course, this service really gets its day in the sun when a dispute actually arises — which is rarely the case without the lawyer having given the good advice to let it come to that. His commitment increases with the amount in dispute, because the remuneration of legal counsel is determined by it. This arrangement is first of all fair: if the lawyer slogs through life as agent and beneficiary of the conflicts of interests of other people, then the size of the disputed interests is also the appropriate measure of his income. Secondly, this has the practical side effect of keeping the state judiciary from having to deal with the financially negligible but plentiful disputes of “ordinary people,” who are terribly dear to its heart, but who hardly ever pay a lawyer. In a society of self-opinionated people, there is hardly any damage to the bodywork of a car without two lawyers earning money from it, but the insurance company of the losing lawsuit-happy litigant also pays. As for the other side of the business, the big, lucrative civil-law disputes, the German profession must enviously admit that the Anglo-Saxon legal system offers more liberties than the German one to use contract law as a weapon all the way to the destruction of a business partner and for the noble purpose of massive enrichment, i.e., also to get stinking rich as a lawyer. The German legal representative must comfort himself more with the morally uplifting awareness that in his service to violent private interests, he is not merely the lawyer of his client, but at the same time the assiduous lackey of the overriding law-and-order point of view according to which he seeks to assert his client’s interests: he is the servant of state jurisprudence, which distributes the blessings of its coercive power in accordance with laws that are not at all private.

The lawyers would only have half as much to do and earn if they did not especially assist their solvent clientele against the state and its legal claims. Taken as an intellectual achievement, the lawyer plays here with the logical difference between the generality of the laws in which the state asserts claims against the citizen and the particularity of the individual case, whose subsumability under the general rule is denied by the lawyer. In practice he deals with the contradiction of every businessman regarding his obligations to the state and his obedience to its laws as an expense for which he wants to see a specially beneficial return for himself, while the state considers its services to be fundamental and not something paid for as a matter of principle, and is not interested in transacting business even with its most well-off subjects as far as their legal duties are concerned. This contradiction opens up a wide range of ways out, compromises, and exceptions that sometimes strain the spirit, sometimes the letter of the law; sometimes confirming the rule by disobeying it — a paradise for legal experts. Even in the case of large-scale corruption, lawyers who know how to produce the necessary appearance of legality are called in as negotiators and intermediaries. The law is the lawyer's dogma, profession, and business basis; but partiality for certain material public interests would be the ruin of his business.

The same is true in the sphere which, though it does not establish the social advantage of the profession, does — of all things — establish its fame: criminal justice. As a defender, the lawyer must question both the incriminating facts and their subsumption under sections of criminal law and come up with counter-constructions. His image fluctuates accordingly between that of a partisan of criminals and that of the savior of persecuted innocence. While he enjoys the latter, he protests against accusations of the first kind with reference to his indispensability as an officer of the administration of justice: as an advocate of justice without regard for the person. This ethos, whose credibility a whole apparatus for the voluntary self-regulation of the profession, the bar association, speaks up for, can be written off as hypocrisy without looking at it; objectively, however, there is more to this purpose than lawyers themselves know and think. The whole criminal justice business from beginning to end is about nothing other than the law proving its undamaged sovereignty: its sovereign validity, no matter how often it is broken. If it were there to prevent the forbidden crimes, it could have declared total bankruptcy long ago. But it is a prohibition, and as such it firmly expects criminality to happen all the time: it is defining a social practice as crime. It follows that the validity of the law depends on the credibility of its threat of punishment. Everything depends on the fact that the law, as the “actual” force of order against the criminal, is proved right. To this end, it proves itself with a sovereign act of force against delinquents as unquestionably superior, sovereign, unconditionally binding Will. But also included in this act, with which by punishment the law gets what belongs to it, is the appearance that nothing but what is right really happens to the offender. This appearance exists in the person of the defense counsel, who in an emergency is appointed by the court itself. And this corporeality, properly dressed, is what’s important — whether the defense benefits the accused, whether the lawyer knows what’s going on at all, is quite irrelevant for this success.

In any case, the lawyer has a professional overall view as an inalienable characteristic in the form of a constantly updated collection of laws and judicial decisions (case law), as well as a memory that allows him to open them in the appropriate place for each new case. The intellectual effort required for this has to do with scientific knowledge inasmuch as it is the opposite of it. An act or intention is compared with general provisions that are not of a theoretical nature, i.e., not derived from the analysis of the purposes pursued, but rather express the state's interest in what has happened, the intervention of state power in the intentions and acts of its subjects. The result of such comparisons are always, logically speaking, alienations of the facts by the peculiar “light” of legal regulations. The fact that the humanities and social sciences today proceed in a similar way — with self-created principles of purpose instead of legal texts as bodies of theoretical enlightenment — is not the fault or merit of jurisprudence, but ensures its honorable reception in the realm of theorizing. No academician finds anything wrong with the practice of leafing through law and subsuming cases under state exercises of authority being called “legal science.”

The study of law conveys, besides the knowledge of the thick red notebooks and their tables of contents, the habit of training all thinking about the course of the world and its big and small affairs on the legal art of subsumption and of considering it an honorable way of thinking. Afterwards, the state then liked to see to strength of conviction through a bit of poorly paid national service, without which the career cannot get going.

What a lawyer then does with his good memory, his even better morals, and his bad thinking habits — in money and career, with or without his own law firm — is essentially a question of character and connections. It depends on how many affluent and lucrative clients he convinces of their legal affairs being in the best of hands with just him. Demonstrating self-confidence; bragging about not being shaken by anything and knowing every trick in the book; credibly displaying a cunning that would have guaranteed a successful career as a confidence trickster if applying it law-abidingly had not seemed more rewarding: that is definitely what a good lawyer needs as a minimum human endowment. That cannot be learned in lectures; rather in student fraternal societies, preferably the “right” ones — and really then in practice. If one is successful, the quality cannot fail to appear. And the other way round — that is the occupational risk.