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The Lawyer as Rationalist

In Arts & Letters, Conservatism, History, Law, Philosophy on April 17, 2013 at 8:45 am

Allen Mendenhall

The rationalist lawyer does not disparage an ideal on the grounds that it does not work or cannot be tried.  “He has no sense of the cumulation of experience,” Michael Oakeshott bemoaned of the rationalist, “only of the readiness of experience when it has been converted into a formula: the past is significant to him only as an encumbrance.”[1]  The lawyer is a rationalist insofar as he is interested in a past that supplies him with the precedents and procedures that steer his practice and win his battles; such a past is an encumbrance because it never exists in the pure form that the lawyer seeks and needs.  Therefore, the lawyer must push against the past, reinvent it, stretch it, mold it into a usable form; the past, for him, is a religion of malleability: to be faithful to it is to rewrite or reinterpret it.

The lawyer, being a rationalist, minces words and retards conventions to achieve the goals that benefit him and his client, paying little regard to whether his chosen grammar and syntax will impair the harmony of the community.  He is trained, not educated; progressive, not conservative.  His aim is to innovate in the service of short-lived victories.  To be a good lawyer is not necessarily or even usually to be a moral or thoughtful person; it is to zealously represent the client by aligning the law with the facts of the case as they have been filtered through the minds and mouths of the parties.  It is to prevail by fusing abstract rules with secondhand information.  The lawyer, accordingly, is intelligent—highly so—but not honorable or ethical.  He is, in short, a repository into which filtered discourse flows, and through which discourse is enunciated into the machine of the system for further processing.

“[H]aving cut himself off from the traditional knowledge of his society, and denied the value of education more extensive than a training in a technique of analysis,” Oakeshott persists of the rationalist—or, for my purposes, the lawyer—“is apt to attribute to mankind a necessary inexperience in all the critical moments of life.”[2]  Hence the trouble with the lawyer: his ambition is rarely tempered by his inadequacies, his analytic mind seeks out models for the mastery of human behavior, his poise in the face of adversity betrays his naiveté, his reliance on his own intents and purposes for action (rather than on those of his ancestors or immediate community) reveals a grave shortsightedness that can lead only to subtle and progressive harm.

Do not misunderstand me: what I call “the lawyer” is an archetype, not a group of named individuals.  The common legal practitioner is not an Iago bent on weaving webs of wickedness with motives only sinister.  But the lawyer archetype, like all archetypes, contains truth.  It is because Atticus Finch is so unlike the typical lawyer that he stands out in our memory and is said to have redeemed the law.  Lawyer jokes did not arise in a vacuum; and the rules of ethics and professional responsibility did not come about because the public considered lawyers to be noble and upright.  So, when I refer to “the lawyer,” I do not mean any one man or woman, nor each and every lawyer, but I do mean to signal (1) the symbol of the lawyer that is based on real patterns of behavior, which are passed from one generation of lawyers to the next; (2) a personality type that can and has been observed in lawyers in different times and places; and (3) a model that lawyers have emulated and perpetuated to their own detriment.


[1] Michael Oakeshott, Rationalism in Politics and Other Essays (Indianapolis: Liberty Fund, 1991), p. 6.

[2] Id. at 7.

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