미국법의 전문화 - 1870-1920년대 미국의 자본주의와 민주주의

Abstract

Professionalization of American lawyers from the 1870s to the 1920s has been viewed from two perspectives. The one is called Tory history which has plainly said that the professional reforms were made as American law and the competence of lawyers has gradually made progress. The other is called Whig history which has argued that the reforms constructed a monopoly market of legal service, motivated by economic interests of some groups of lawyers.

Against these traditional theories, I argue that the professionalization of law in that period should be understood as a crucial part of the construction of "a capitalist state" in the United States. With its professionalism, American elite groups succeeded in making political democracy compatible with capitalist economy, both with their inherent instabilities. The process of professionalization took three stages and themes in turn. At first, from the 1870s, the elite lawyers claimed their "public leadership" defining social and political conditions as a crisis. Second, they adopted "scientific jurisprudence". Finally, in the twentieth century, they were engaged in profession constituted, first as a counter-state, next as a non-political. legal state power, and finally as a pool containing the entire American democracy and state power.

In the United States, law has been much more than a profession in its conventional sense ever since its Independence. However, from the late nineteenth century, the profession was institutionalized with a conscious commitment to stabilize political democracy and political capitalism.