Nearly thirty years ago, H. L. A. Hart observed that American jurisprudence “is marked by a concentration, almost to the point of obsession, on the judicial process, that is, with what courts do and should do, how judges reason and should reason in deciding particular cases.”[229]

Then as now, the figure of the judge dominated American jurisprudence - and wrongly so, in my view. In this chapter I want to explore the hypothesis that a better standpoint for jurisprudence is that of the lawyer, not of the judge.

The argument that follows is lengthy but essentially simple. It may be useful to set out its main conclusions here at the beginning. First, taking off from Hart’s important insight that a system of rules counts as a legal system only if its institutional actors maintain an internal point of view on the rules, I argue that the most significant actors are not judges, nor, as Hart believes, officials more generally, but lawyers. The lawyer-client consultation is the primary point of intersection between “The Law” and the people it governs, the point at which the law in books becomes the law in action. Second, in singling out lawyer-client consultations as the paradigmatic legal events, I emphasize the role of the lawyer as advisor rather than the lawyer as advocate. Lawyers as advocates must indeed focus on judges and judicial decisions, and their point of view on the law is parasitic on the point of view of judges. The legal advisor occupies a different role, with different ethical standards and different jurisprudential properties. Most discussions of legal ethics emphasize dilemmas of advocacy, but I will suggest that the advisor’s role is no less significant. Third, because lawyer-client consultations occur behind a veil of confidentiality, the integrity of the legal system depends to an enormous degree on the rectitude of the legal advisor. The question “How should lawyers advise clients?” turns out to be at least as important as “How should judges decide cases?”

Among social scientists studying the law, these propositions are old news.

My fourth conclusion will be less familiar, and less congenial, to legal social scientists. Law-and-society authors typically follow their legal-realist forebears in identifying law with the law in action rather than with the law in books (to use Pound’s familiar phrases). They differ from the realists largely in where they locate the action: outside the courts rather than in. For the early realists, the law in action meant judicial behavior, and knowing the law meant predicting what judges will do. In this respect, the realists were not much different than today’s law-firm associates, writing memos that analyze statutes by explaining what “courts would say” about them. I will argue that lawyers advising clients about the law’s meaning must not deflect their own interpretive responsibility on to hypothetical others, whether those others are courts or non-judicial actors. Instead, their obligation is simply to explain the law in books. So, in the end, I identify law with the law in books, as mediated through the interpretive community of lawyers.

Hart subtitled his essay on American jurisprudence “The Nightmare and the Noble Dream.” This arresting phrase refers to the jurisprudential extremes that haunt judge-centered American jurisprudence: the nightmare of unfettered, willful judicial lawmaking, and the noble dream of judicial craft that elaborates the principles inherent in a nation’s legal system to fill all gaps in the law. A lawyer-centered jurisprudence also has its nightmare and its noble dream: a nightmare of lawyers who either dominate their clients or capitulate to them, and a noble dream of lawyers who mediate between their clients’ interests and the law.