My Response to David Brooks, Taken from an Old Article on Lawyers, Elites, and the New Class

(Update:  Thank you Instapundit)

David Brooks has a piece up today in the Times attracting much comment. I am no populist, except perhaps by David Frum’s unexacting standards, but let’s just say I think that Brooks somewhere along the way lost the marvelous tuning that made him the true heir of Veblen.  I think it was the need at the Times to do politics rather than Bobo culture and “comic sociology.”  As for me, well, how much of an elitist am I?  An editor of the TLS once told me, “Ken, you have almost exquisite taste.  It would be flawless, too, except for your fondness for the novels of AA Gill.”

Here is my response to David Brooks, en passant, taken with some editing from the conclusion of an essay of mine in the Columbia Law Review in 1996, reviewing books on lawyers, elites, and the therapeutic New Class.

A New Class of Lawyers: The Therapeutic as Rights Talk (96 Columbia Law Review 1092 (May 1996).) (SSRN link)

The old elites wanted to be the top of the communities in which they had grown up; whether to lead or dominate, to serve communities or exploit them, at least they understood themselves as having a place in them. The new elites, by contrast, want no connection; they understand that power is elsewhere, money is elsewhere, and mobility is everything; if indeed they have to live somewhere, it will be if at all possible in a wholly private, gated community. Yet simultaneously they want to dominate.

The New Class pushes its mobility to absolute limits, launching itself into what it imagines is a global society conducted in the jet stream, made weightless by the complete mobility of capital, but with devastating consequences for those left behind on the ground. For those who cannot fly, there is first, the administration of life by these same elites and their hirelings, the authoritarian, bureaucratic formations which, to be sure, express themselves alternately in soothingly therapeutic psycho-babble or communitarian slogans of the common good or assertions of new and endless rights and, second, economic insecurity in the midst of being urged to greater self-esteem …

In this unforgiving light, the unhappiness of lawyers looks rather less like professionals experiencing the loss of fulfillment that accompanies losing “ownership” of the social ends of the legal profession and rather more like the unhappiness of experts who, having established to their own satisfaction the certainty of ends not open for argument by non-experts, wonder why they are not also loved.

The issue of the New Class and its lawyers is authoritarianism. In an age when the therapeutic has appropriated rights talk, and with it lawyers, turning it and them into agents of New Class authoritarianism and social control, the real question that needs to be answered is why there exists the continued “hegemony within the public culture of an essentially indeterminate and at the same time absolutist discourse of rights.” It predominates because, far from being merely a language of individual liberty or even unbridled individual license (as, for example, the communitarians would have us believe) it is today a language of state authority, a language of therapeutic paternalism; those who actually dream of being “liberals” will not reclaim rights talk any time soon. Its appropriation is at the core of the process by which the state today controls, as the late Christopher Lasch wrote, “not merely [the individual’s] . . . outer but his inner life as well; not merely the public realm but the darkest corners of private life, formerly inaccessible to political domination.”

Lawyers are deeply complicit in this colonization of the language of rights by the culture of therapy. They participate because it serves the agenda of a class that, unfamiliar with democracy except as an impediment to its social engineering, is incapable of any form of discourse that is not directed from the top to the bottom. Expertise, particularly in the social sciences, is a language of hierarchy and social control, and lawyers today, as a professional formation within the New Class, deploy the language of rights to the end of making the therapeutic coercive in the public sphere.

It is not a glorious profession because it is not a glorious class, and lawyers are right to be unhappy.