Legal profession

History
Distinct legal systems emerged relatively early in history, but legal professions of size and
importance are relatively modern. There is not the slightest trace in ancient times of a distinct
legal profession in the modern sense. The earliest known legal specialist was the judge, and he
was only a part-time specialist. The chief, prince, or king of small societies discharged the
judicial function as part of the general role of political leader. As his power spread, he delegated
the function, though not to legal specialists; in the secular stages of the early systems, legal duties
were taken over by royal officials who were “generalists.” In the wake of powerful religious or
quasi-religious movements, priests or wise men often judged or advised the judges. It may be that
in some of these cases specialized legal aid to the ordinary citizen did exist, but at levels of social
status below the notice of chroniclers or tomb inscriptions and perhaps without benefit of official
approval.

Classical beginnings
A distinct class of legal specialists other than judges first emerged in Greco-Roman civilization,
and, as with the law itself, the main contribution was from Rome in the period from 200 BCE to
600 CE. In the early stages of both Greece and Rome, as later among the German tribes who
overran the Roman Empire, there was a prejudice against the idea of specialists in law being
generally available for a fee. The assumption was that the citizen knew the customary law and
would apply it in transactions or in litigation personally with advice from kinsmen. As the law
became more complex, men prominent in public life—usually patricians—found it necessary to
acquire legal knowledge, and some acquired reputations as experts. Often they spent periods
serving as magistrates and in Rome as priests of the official religion, having special powers in
matters of family law. Among the German tribes, noble experts were allowed to assist in
litigation, not in a partisan fashion but as interpreters (Vorsprecher) for those who wished to
present a case but felt uncomfortable doing so themselves. The peculiar system of development
of early Roman law, by annual edict and by the extension of trial formulas, gave the Roman
patrician legal expert an influential position. He became the jurisconsult, the first nonofficial
lawyer to be regarded with social approbation, but he owed this partly to the fact that he did not
attempt to act as an advocate at trial—a function left to the separate class of orators—and was
prohibited from receiving fees.

The modern legal professional, earning his living by fee-paid legal services, first became clearly
visible in the late Roman Empire, when the fiction that a jurisconsult received only gifts was
abandoned and when at the same time the permissible fees were regulated. Changes in the
methods of trial and other legal developments caused the jurisconsult to disappear in time. The
orator, who now was required to obtain legal training, became the advocate. A subordinate legal
agent of the classical system, the procurator, who attended to the formal aspects of litigation, took
on added importance because later imperial legal procedure depended largely on written
documents that the procurators produced. The jurisconsults had been important as teachers and
writers on law; with their decline this function passed to government-conducted law schools at
Rome, Constantinople, and Berytus (now Beirut) and to their salaried professors. There was also
a humbler class of paid legal documentary experts, the tabelliones, who were useful in
nonlitigious transactions.

Medieval Europe
This late Roman pattern of legal organization profoundly influenced the Europe that began to
arise from 1000 CE after the barbarian invasions; even during the invasions the methods of
Roman imperial administration never ceased to be used in some parts of southern France and in
central Italy. The Christian church, which became the official Roman imperial church after 381
CE, developed its own canon law, courts, and practitioners and followed the general outline of
later Roman legal organization. Because of its success among the invaders, the church was in a
position to establish its jurisdiction in many matters of family law and inheritance. Hence, both
the idea of a legal profession and the method of its operation retained sufficient force to offset
Germanic and feudal objections to legal representation. After the revival of learning in the 12th
century, in particular the renewed study of Roman law at Bologna, the influence of the late
Roman professional system was greatly strengthened.

From then on, every country in continental Europe acquired, by various stages and with
numerous local variations, a legal profession in which four main constituents could be observed.
Procurators attended to the formal and especially the documentary steps in litigation. Advocates,
who usually were university graduates in Romanist learning, gave direct advice to clients and to
procurators and presented oral arguments in court. Among a miscellany of legal scribes, the
notaries acquired importance because, in addition to being drafting experts, they also
authenticated documents and maintained archives. University teachers of law took over the main
task of explaining and adapting the mixture of Roman law and Germanic custom that produced
the modern laws of the major European countries and continued to dominate in the scholarly
interpretation of the law even after the 19th-century codifications. The relative importance of
these classes varied enormously from place to place and from century to century. At times the
teaching doctors almost supplanted the advocates; in some courts the procurators swallowed up
the advocates, and in others the converse occurred; only the notaries managed to survive with
little change.

England after the Conquest

England after the Norman Conquest of 1066 also was influenced by Roman example, and the
clerics who staffed the Norman and Plantagenet monarchies and who provided the earliest of
their judges enabled the notion of a legal profession, and especially of litigious representation, to
be accepted. Only in the ecclesiastical and admiralty courts, however, did procurators (proctors)
and doctors of the civil and canon laws become established as practitioners. The native “common
law” was developed by a specialized legal society, the Inns of Court, in London; there, through
lectures and apprenticeship, men acquired admission to practice before the royal courts. More
particularly, they could become serjeants—the most dignified of the advocates, from whom alone
after about 1300 the royal judges were appointed. Various agents for litigation resembling
procurators also became known. The “attorneys,” authorized by legislation, at first shared the life
of the Inns with the “apprentices” in advocacy, who themselves in time acquired the title of
barrister. Indeed, there were cases of men working as both barristers and attorneys. When in the
16th century the Court of Chancery was established as the dispenser of “equity,” the appropriate
agent for litigation was called a solicitor, but the common-law serjeants and barristers secured the
right of advocacy in that court. It was not until the 17th century that the attorneys and solicitors
were expelled from the Inns and the division between advocate and attorney became rigid, and
not until the 18th century did the barristers accept a rule that they would function only upon being
engaged by an attorney—not upon being retained directly by a client. Other types of legal agents
also developed in England, but in the 19th century all of the nonbarristers were brought under the
one name, solicitor. The order of serjeants was eliminated, leaving only barristers, of whom the
most senior could be made Queen’s (or King’s) Counsel.
In its final development the English legal profession thus bore a resemblance to the European
professions—particularly to that of northern France, where the parlements (courts) had a
corporate life and apprentice training not unlike that of the Inns. But there were four significant
differences between England and the Continent. No distinct class of university teachers and
commentators on the national law developed in England. Development of the law took place
chiefly through precedent based on the reported judgments of the courts, rather than through
legislation. The continental monarchies also developed a system of career judicial office, in
which the young university licentiate went straight into government service, whereas in England
appointment of judges from the senior practicing profession remained the settled practice. In
addition, the division between barristers and solicitors ultimately became much more rigid in
England than did the division between the advocate and procurator on the Continent, which never
adopted an equivalent of the English practice of requiring a barrister to be employed by a
solicitor; both the procurator and the advocate were separately and directly employed by the
client. Finally, England never developed the profession of notary, so that the whole burden of
transactional work fell on those who are now the solicitors, with legal advice from the bar.

Worldwide legal profession

Contrary to conventional understanding, there were antecedents of a legal profession outside
Europe prior to the spreading of such ideas through European colonialism. In China, for example,
there was a long history of unofficial legal advisers—often young men preparing to take imperial
examinations for official appointment—who assisted merchants and other laymen in the
preparation of legal documents, including those needed to commence litigation. Although
operating in the shadow of an imperial legal code that prohibited the instigation of litigation,
these quasi-lawyers also enjoyed a fair measure of tolerance from officialdom, which suggests
that at least some of them may have served a useful purpose.

Such indigenous developments notwithstanding, the rise outside Europe of a modern legal
profession—in the sense of a class of specialists recognized by the state and yet operating with
some measure of independence from it—is generally associated with European colonial
expansion. In Britain’s North American colonies, and particularly in the United States soon after
independence, lawyers assumed a prominent role in both public and private life, which led the
French social observer Alexis de Tocqueville to write early in the 19th century that “it is at the
bar or bench that the American aristocracy is found.” The English system also provided a model
for most former English colonies in Africa, for most of the Indian subcontinent, and for Australia,
Hong Kong, Malaysia, New Zealand, and Singapore. The Romano-Germanic practices that in
time became the civil law made their influence felt in Scandinavia, eastern Europe, Latin
America, and many Muslim countries in the Middle East; in French, Spanish, Belgian, and
Portuguese colonies in Africa; and in Japan, Thailand, the French colonies of Southeast Asia,
and, in some measure, the Republic of China (which existed on the Chinese mainland prior to
1949 and today exists on Taiwan). It should be noted, however, that the association between the
modern legal profession and colonialism was not always felicitous. Although lawyers were in
some instances at the forefront of their countries’ independence movements (as were Mohandas
Gandhi in India and Lee Kuan Yew in Singapore), in other cases they worked to uphold colonial
rule.

To be sure, both the common-law and the civil-law models of lawyering underwent considerable
modification by both the countries of export and the countries of reception. In particular, the
specialization of procurator-advocate and solicitor-barrister tended to be replaced by a “fused”
profession of legal practitioners qualified to perform both functions and usually doing so. Such a
fusion occurred gradually in Germany between the 16th and 18th centuries, and it has taken place
more recently in France (except before the courts of appeal). Although the division still formally
exists in Italy, it is no longer of practical importance. In Latin America the fused profession is
general. Notaries as a separate specialized branch of the profession exist, however, in most civil-
law countries.

Citation Information
Article Title: Legal profession
Website Name: Encyclopaedia Britannica
Publisher: Encyclopaedia Britannica, Inc.
Date Published: 29 August 2019
URL: https://www.britannica.com/topic/legal-profession
Access Date: August 28, 2020