Law as Vocation and as Profession

The title of this week’s post is borrowed from the sociologist Max Weber’s 1919 lecture, Politick als Beruf, which is sometimes translated as “Politics as Vocation” and sometimes includes “Profession” as well (since Beruf, apparently, signifies both terms). (Here’s a free copy of the lecture, which is well worth reading, although it’s not the translation I’ll be citing from.) In that lecture, Weber distinguishes between politics as one’s vocation — from the Latin vocatio, a “being called” — and one’s profession, what one does to maintain life. One can live “for” politics, where a person “makes [politics] his life”; or one can live “from” politics, where politics is one’s source of income.

What does it mean for law to be a vocation or a profession? The easier answer is to think about law as a profession — law is a discipline, a set of rules that one learns and applies, and one sells those services of law in exchange for money. But law as a vocation must mean something more.

Of politics as vocation, Weber writes, the politician “either enjoys the naked possession of the power he exercises, or he nourishes his inward equilibrium and self-esteem with the consciousness of giving meaning to his life by serving a ‘cause.’” Power — that which politics deals with — becomes part of the self-identity of the vocational politician.

The vocational lawyer, by analogy, melds the law with their identity; law structures their understanding of themselves. The values of law — those of predictability, of stability, of fairness, of procedural regularity — inhere in the vocational lawyer’s worldview. And in the American system, where legal decision making is structured by past precedents, this breeds a kind of small-c conservatism. Tocqueville once remarked: “When you listen to an English or an American lawyer, you are surprised to see him cite the opinion of others so often and to hear him speak so little on his own, whereas the contrary happens among” French lawyers. The lawyer, especially the one who sees law as vocation, engages in a “sort of abnegation . . . of his own sense in order to rely on the sense of his fathers, the kind of servitude in which he is obliged to maintain his thought”; thus, the American lawyer’s mind is rendered “more timid” and tends to “contract more static penchants” than the French lawyer.

Tocqueville was worried about what I am calling vocational lawyers. Lawyers, he remarked, “love above all things . . . a life of order, and the greatest guarantee of order is authority.” Thus, even if lawyers “prize freedom, they generally place legality well above it; they fear tyranny less than arbitrariness, and provided that the legislator takes charge of taking away men’s independence, they are nearly content.” A focus on process — who decides, and how should they decide? — replaces substantive merits — what is the right decision?

Here, I want to return to Weber and, in particular, his analysis of who might justly find politics as their vocation. Weber thought few were fit for the role. At the heart of politics, recall, is the gaining and exercise of power — and particularly, state power. It is in this lecture that Weber provides his famous pithy definition of the modern political state — the community that “(successfully) claims the monopoly of legitimate force for itself.” If the state is defined in terms of a given means — that of physical force — and if politics is invariably centered on that state, then politics necessarily has to do with violence, for it requires using the power of an entity whose foundational idea is that of legitimate force.

The one for whom politics is vocation, then, is the one who can shoulder that awesome responsibility. Weber thought the good political leader needed three characteristics: “passion, responsibility, and sense of proportion.” Politics is energetic and frenetic; it is about the jockeying of different people and peoples, of diverse interests seeking to define and promote the commonweal. One must, therefore, be “devot[ed] to a ‘cause’ . . . , and to the god or demon who is lord over it,” to feel a kind of passion that leads one to engage in the messy business of politicking. That cause must be “the decisive guiding star” of the politician’s actions to be a good politician; the politician must feel responsible for seeing that cause to the end. And most importantly — what Weber called “the decisive psychological quality of the politician” — is the mental fortitude to politick with efficiency, to fit ends proportionally to their means: it is that “ability, with inward calmness and composure, to allow the realities to work on one, in other words: distance from things and people.”

The vocational politician requires, in other words, a dual mind, a contradiction at the heart of their being. “How,” Weber asks, “do we force burning passion and a cool sense of proportion to come together in the same soul?” For politics must be “genuine . . . , and not a frivolous intellectual game”; it must, therefore, be “born of passion and nourished by passion.” But the vocational politician must have “[t]he strength to subdue the soul” and thus to “becom[e] accustomed to distance.” The sins of the politician, Weber thought, were of two kinds: either a loss of objectivity or a loss of responsibility. To lose objectivity is to lose sight of one’s purpose and one’s reality. It is to become enamored by power for its own sake, to become obsessed with one’s image and a feeling of invulnerability rather than one’s cause and higher purpose. To lose objectivity is easy for the kinds of people who seek political power. After all, if you seek to be a politician, you likely have some kind of vanity, a fundamental self-assurance and confidence.

But to lose responsibility is far easier, because it requires merely that you delude yourself into forgetting “the tragedy with which all activity, especially political activity, is in reality intertwined.” Politics invariably involves coercion, and force, and violence; decisions and non-decisions alike can wreak havoc on people’s lives. The current pandemic has shown this all too well, I think. Failure to act can lead hundreds of thousands to die. But acting, too, has its consequences. We would be self-deceived to believe that lockdowns — especially blanket ones that include closing all schools and daycare services — have no impact on people’s lives and their wellbeing. Lives are lost, whether to disease, to hunger, to dislocation, to pre-existing health difficulties that are no longer treatable because hospitals are full of people sick with the coronavirus. And to both the person who lost their job due to the shutdown and the person who has lost a loved one due to insufficient pandemic response, the politician must respond: “I am responsible.”

The vocational politician must understand that any action has life-or-death consequences. They must take responsibility for those consequences regardless of whether they were well-intentioned, followed best practice, or were merely going by precedent. This is the most difficult test of politicians, why Weber thought so few of us could have politics as our calling. “Whoever intends to engage in politics at all . . . must be aware of these ethical paradoxes and of his responsibility for what can happen to him himself under pressure from them.” Politicians cannot be saints; they cannot concern themselves with moral purity or helping people to find divine salvation. The politician, instead, must be willing to accept the worst of outcomes; they must have “the trained ability to gaze relentlessly on the realities of life, and the ability to bear them and have the inward strength to be equal to them.”

The ethical issues that confront the politician are those that confront the lawyer. In one direction, we might note that many politicians are lawyers; some forty percent of the 2019–20 Congress had a law degree. In the other direction, lawyers fundamentally employ those same mechanisms that politicians do. They leverage the power of the state, that association that at its core legitimates the exercise of violence, in order to perform their work. Our legal system proceduralizes and bureaucratizes that exercise of force — a lawyer, alone, cannot wield the power of the state. But that is also true of the politician. The rise of the modern state, Weber noted, was based in the creation of a bureaucratic state, where employees themselves do not “possess[ ] the means of administration” but instead are “separated” from those means, much as the factory worker does not own the machinery she works with. In contrast to the feudalist system, where monarchs relied on barons to supply the soldiers and materiel for war, the modern state has an administrative capacity that is owned by no member of the government. The politician must direct the bureaucracy to act in certain ways, but the politician has no guarantee that the bureaucracy will respond. (Here, we’re back at our familiar principal-agent problem!) The politician who wants to achieve anything, then, must convince “a human ‘apparatus’” to act in a certain way. I’m reminded of the Richard Neustadt view of the President, whose powers, Neustadt argued, did not consist in giving orders but rather in persuading others to follow him: “A President depends upon the persons whom he would persuade; he has to reckon with his need or fear of them. They too will possess status, or authority, or both . . . . Their vantage points confront his own; their power tempers his.”

Weber thought the politician’s reliance on this “apparatus” meant that they could not keep morally pure; they needed to jolt their followers into action, whether by rallying their followers to act based on “hatred” and a “thirst for revenge” or based on “external” rewards such as “victory, booty, power, and office.” The point, though, is that even if the politician must rely on these conduits — even if the politician cannot exercise power without convincing others to act — the politician nevertheless bears the responsibility for achieving their cause (or for failing to do so). The fact that lawyers are merely players in the legal machinations of the state, similarly, does not wholly excuse their role in legitimating the exercise of the state’s violence.

Law does differ from politics, though, in the sense that the legal system has deterministic procedures — you win a case or you lose — whereas politicians have greater freedom to choose their own hills upon which to die. Nevertheless, the lawyer still does choose which cases to bring and how to conduct their arguments. The lawyer’s faith in the adversarial process, and legal system writ large, is just that — faith that can balance their individual responsibility. But it cannot distinguish that ethical imperative. There are times in which the lawyer might justly decide to defend an unpopular defendant — a White Nationalist protestor or a certainly guilty sex offender — out of a belief that the system’s integrity requires such a zealous defense for that person. That action, though, is a choice for which the lawyer must take responsibility. In the same way, the lawyer’s choice to bring frivolous lawsuits that degrade the people’s faith in their democracy is also a choice for which the lawyer must feel responsibility. Law, like politics, is not a realm for purity. The lawyer is ethically obligated, at times, to align themselves with bad people and bad actions. The lawyer who is a judge is ethically obligated, at times, to impose punishments — perhaps harsh — on convicted persons. The saint cannot be a lawyer, and a lawyer should not pretend to be a saint. But the lawyer, like the politician, must take responsibility for these actions that might be violent, or grotesque, or coercive.

The relationship between politics and law, in this analytic, also helps tease out what I think is a major flaw in Weber’s thought. I have suggested that neither law as a vocation nor as a profession is adequate, and that, instead, the lawyer ought to strive toward being like a vocational politician — a person who acts with passion for certain causes and who shoulders responsibility for the consequences of pursuing those causes. Weber thus believes the vocational politician is a kind of Great Man, one who can leverage the people around him — and this typology is certainly gendered — in order to get what he wants done. Like Atlas, his shoulders alone bear the grave responsibility for the violence of the state, and so he must have the mental fortitude not to be driven insane by the violence he orders to pursue his cause and therefore must take responsibility for.

But politics, we should be reminded, is an associational process. We have no politics if we have no humans in the plural. And we have each other to hold ourselves accountable, to ensure both that we stay true to our cause and that we adequately shoulder the responsibility for that pursuit. It takes a unique person indeed to be a solitary politician, one who could do all that Weber asks without support from others. I’m reminded of that scene toward the end of Harry Potter (spoilers, jump to the next paragraph, if there’s anyone who still hasn’t read Harry Potter), where Harry needs the ghosts of his parents and loved ones to help him make the ultimate sacrifice.

We need that kind of support in making the big decisions not because that support helps lift off the weight of responsibility, and not because that support can be a stand-in for the passion that Weber believes every politician must be driven by, but because that support helps maintain our essential humanity as it is torn by “becoming involved with the diabolical powers that lurk in all force.” Leah Litman, as always, put it best, when she addressed UC Irvine’s 2019 law school graduates:

“There will be professional pressures that will make it difficult for you to do justice, even when you want to. Legal reasoning can force you to lose sight of the real world that is around you. If you find yourself arguing about what the separation of powers means, or what due process entails, think about the people who will be affected by it. Better yet, ask them—be near them. Do not be indifferent to the lives of people who are different from you.”

* * * * *

Rose: We did end up making donuts. We did, in fact, also end up making grilled-cheese donuts. Did I feel like I was one step closer to diabetes? Yes. Did I feel somewhat disgusted with my gluttony? Also yes. Do I have regrets? No.

The Glory of the Donut

There Is, Indeed, Cheese

Many Donuts and Donut Holes

Also, I got to call with one of my old Pomona professors, who I’ve been working with on a research project related to DOJ’s Office of Legal Counsel. It was really great to get to catch up with her, and I’m very excited about the research we’re doing! Lastly, I also got to meet a new Marshall this week, and we went for a nice walk around central London. Here are some pictures from that mid-afternoon walk that, alas, ended up being a “night” walk:

A Knight at Night

Confusing but Intriguing Wall

Skyscrapers and Clouds

Street Art!

Bud: I’m supposed to start thinking about programs for next year, and it’s always exciting to see what’s out there. I’m leaning toward a more quantitative political science program — I’d love to learn more about analyzing elections and visualizing data before getting thrown fully into reading briefs and court opinions all day long in law school.

Thorn: I’ve felt very sleep deprived over the last week (I stayed up late on Election Day and ever since have been on a bad sleep schedule), so I keep falling asleep at random times in the day. Hard to stay productive!

Potential Future Topics:

* Souter and Solitude: I was listening to a podcast and then reading some articles about Justice Souter, who was famous for seeking solitude away from the life of DC. He’s an interesting guy, and I think it’d be nice to reflect on solitude (which feels especially apt given our current lockdown).