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Yzes Dezalay and Bryant Garth have been producing theoretically and methodologically innovative work on lawyers for nearly three decades. Their latest collaboration, Law as Reproduction and Revolution, extends their commitment to understanding the global and comparative dynamics of modern legal professions with greater ambition than any of their now classic works.

Here Dezalay and Garth (D&G) seek nothing less than to produce a global framework for understanding the modern production of elite lawyers. They build a theoretical framework for understanding how legal professions reproduce themselves in times of social change, in large part by developing critical histories of the legal professions in several European countries and the United States. They then illustrate how this framework helps explain 20th century changes in the legal professions of India, Hong Kong, China, South Korea and Japan—especially as impacted by interpretations of modern US legal professionalism.

It is exactly this aspect of the book that is most admirable. D&G demonstrate that good comparative, more so transnational, legal history is immensely demanding because it does not simply require a critical understanding of multiple legal traditions. Transnational analysis also requires a critical theoretical position on their global interconnections. This is especially true when modern legal professions proactively promote idealized versions of their histories and social function not only to domestic audiences but also increasingly to foreign interlocutors.

What makes Law and Reproduction and Revolution’s ambition so broadly engaging is that D&G carry out this project while also wading directly into current debates about social inequality and meritocracy. Arguments regarding the sources of social inequality routinely intertwine with arguments about the legitimacy of inequality itself. Proponents of meritocracy normatively sort various sources of inequality as good or bad, and then argue that while social systems properly oriented toward individual “merit” do generate inequality they do so in a socially productive manner. Concurrently, meritocracy, in contrast to some feudal or nepotistic norm, has often been used by minoritized groups to critique and gain access to institutions perceived as captured by entrenched, self-interested groups. Yet, systems of prestige and power are ever adaptive; newly ascendant notions of individual merit quickly become social produced and tied to older social patterns of inequality. A classic exemplar here is the history of standardized testing for university admissions.

D&G thus orient the book around explaining why many “revolutions” in modern legal professions have followed exactly this same pattern of radical challenges to the status quo that ultimately fail to subvert the inequalities that motivated them. Here D&G oppose “meritocracy” with “family capital” to show how norms of meritocracy are used by minoritized groups to challenge an entrenched legal profession—in many countries structurally dominated by familial capital. Legal elites respond to these new norms, and associated challenges to status quo legal practice, by adopting new meritocratic rhetoric while continuing to reproduce patterns of inequality in which family capital becomes highly correlated with new indicia of individual/legal merit. A rather consistent global exemplar here is access to elite Euro-American graduate and post-graduate legal degrees.

Theoretically, D&G use their two early chapters to articulate their most refined engagement with Pierre Bourdieu’s legal sociology, while integrating a critical reading of Harold Berman’s classic studies of legal revolutions in Europe. D&G emphasize Bourdieu’s argument regarding the particular role of lawyers in mediating between society and state power, and how lawyers ground their professional legitimacy by integrating different forms of social capital—notably both intellectual and financial capital. This gives many legal professions their particular quality of simultaneously making claim to inherited traditions while emphasizing individual merit. Understanding how this dynamic operates in practice requires understanding the socialization of lawyers as much as, if not more so, than it does their theories of law. Here D&G make pointed use of Bourdieu’s classic observation that brilliant legal upstarts in France would more often than not marry into legal aristocracies.

More theoretically novel for D&G is their use of Harold Berman and his study of “legal revolutions” to help readers understand how legal professions are able to maintain their social position even when ascribing to new theories of law or new forms of legal practice. D&G draw on Berman to describe this process as “rupture and recomposition.” (P. 25.) Integrating Berman’s insights adds a deeper historical dimension to their earlier work, and provides a clearer basis for showing how marginal legal ideas and actors are integrated into legal professions to help preserver their authority during larger political and social realignments.

D&G thus synthesize Bourdieu and Berman to identify the social patterns which allow legal oligarchies to persist even when outside challengers intend to upend an ancient regime. Here they engage English and European legal history to map out how varied modern models of legal professionalism were developed, and later informed and reconfigured by periods of empire and their imposition on colonized peoples.

The authors spend the next two chapters delving most deeply into the formation of the 20th-century US legal profession. They claim that aspects of the US profession became a global symbolic repertoire for modern attacks on established legal professions in other countries. Moreover, the ascent of the “Harvard Model” of legal education and the modern bar replayed exactly this pattern of meritocratic intervention into an entrenched regime, on terms which later frame arguments for inclusion by minoritized groups.

The history D&G present is decidedly critical. They reject the ideal of the modern US lawyer as achieving the pro-democratic or pro-equality effects on which lawyer self-regulation is premised. The role of the legal profession in the creation of early 20th century US empire is described as “enhancing corporate power abroad and legitimating corporate expansion and empire as according to the rule of law.” (P. 70.) Moreover, as they move through the Cold War, they extend their theoretical frame to encompass how the corporate bar used notions of social service and contribution to create a space where “moral entrepreneurs, the elite law schools, the liberal establishment, and corporate lawyers were in the process of coming together.” (P. 85.) It is this particular confluence of moral and legal merit that became so symbolically attractive elsewhere, but also helped obscure the incestuous patterns of familial advantage and wealth that continued to shape elite legal careers in the US.

It is impossible to do justice to the subsequent chapters of the book, each of which applies the author’s theoretical frame to one country—here again 20th-century India, Hong Kong, China, South Korea and Japan. True to their methodological ambition, in each chapter the authors focus on a point the country’s history when it encountered the symbolic force of the US legal profession and US-inspired symbols of legal meritocracy given US lawyer’s centrality in the post-World War II economic order. Common to each history is a particular class of social actors who saw reforming their domestic legal profession as a means to upset the ancient regime in which it functioned.

In each chapter, D&G use varying levels of historiographical engagement alongside their now-signature use of elite interviews. In doing so, as they routinely admit, scholars with focused expertise in the particular country will find details large and small to challenge. In their chapter on China, difficulties arise as Chinese legal history has advanced so quickly in recent decades to upend long-held misrepresentations. In their chapter on Hong Kong, where interviews play a more decisive empirical role, the views of respondents require a great deal of background knowledge to critically evaluate. And, as the last few years attest to, trends and developments of the past few decades can be upended quite quickly in each of the countries examined.

Yet, D&G make clear throughout Law as Reproduction and Revolution that they understand these limits. What they are trying to achieve in the book is both more ambitious and humble. That they give particular answers to any specific question is less important than establishing that there is a set of common questions facing legal professions, and that answers to these questions are transnationally intertwined.

Herein, the global patterns that Law as Reproduction and Revolution seeks to establish many would take as provocations. In all of the case studies, intentional external efforts to induce change in legal professions fail—even those carried out in countries which later turn to US models in their domestic debates. At the same time, local reformers who drew on US examples almost routinely end up with reforms that don’t lead to anything like US law schools or US legal practice in substance. Even nominally equality-inducing dynamics, such as practicing public impact litigation as a source of legal prestige, end up having the same non-revolutionary impact as D&G claim they have had in the US.

More critically, reforms which advance legal meritocracy to subvert ancient regimes are rarely the levers for combating inequality that their proponents hoped for. The victories of seemingly revolutionary legal ideas or forms recurrently fail to dislodge familial capital as a dominating variable in success as an elite lawyer. At best, these reforms create narrow pathways for accessing the cosmopolitan capital of elite global corporate practice—capital which ends up structurally dependent again on family capital.

Though not so bluntly stated, the book is especially provocative for those who study legal education, in that it illustrates how the particulars of what happens in law schools are far less important for the impact of legal practice on any given society than how the market for legal services is constructed. In particular, in any system that maintains a predominately private market for legal services, the statistical supermajority of lawyers will invariably gravitate to reproduce, rather than challenge, social inequality. Moreover, the transnational elements impacting most legal professions have led to changes that are largely restricted to a handful of elite schools, whose graduates form a globalized legal elite that often has more in common with elites in other countries than their local bars. Notably, the words “democracy” and “democratic” appear quite infrequently throughout the book.

In the end, Law as Reproduction and Revolution does demonstrate that any attempt to separate social theory and historiography, an often explicit methodological conceit of many historians, simply means leaving many implicit assumptions about human behavior and social organization unexamined. In practice, critical historical knowledge and social theorization are mutually essential. At the same time, D&G have laid out yet another aggressive statement that studying lawyers in sociological context is necessary for understanding not just national, but also the ever-growing transnational spaces of lawyering that intermix legal traditions. In the transnational context, these mutualities can be bewildering because of their complexity. But only by engaging with such complexity can more eternal questions, such as those that revolve around meritocracy, be addressed with clarity.

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Cite as: Jedidiah Kroncke, (Familial) Meritocracy and (Non-)Revolutionary Change: Reproducing Inequality in Modern Legal Professions, JOTWELL (June 8, 2022) (reviewing Yves Dezalay & Bryant Garth, Law as Reproduction and Revolution: An Interconnected History (2021)),