Rakesh Khurana is one of the world’s leading thinkers on professions and their role in society and the author of From Higher Aims to Hired Hands: The Social Transformation of American Business Schools and the Unfulfilled Promise of Management as a Profession (Princeton University Press, 2007). For this issue of The Practice, Khurana sat down for a conversation with David B. Wilkins, faculty director of the Center on the Legal Profession, on professionalism and ethics in business and the law.
David B. Wilkins: In recent years, there has been a lot of discussion of how globalization is reshaping the practices of lawyers and other professionals. But there has been far less attention to how the processes of globalization might be reshaping core ideas about professionalism. Could you could talk a bit about how you see globalization impacting—and perhaps reshaping—traditional conceptions of professionalism in law, medicine, or management?
Rakesh Khurana: Globalization’s impact on the professions is profound. On one level, we normally think of globalization as a set of processes having to do with things such as the disintermediation of production, of communication and technological interconnectedness, and of the flow of ideas, norms, and practices across the globe. On a deeper level, however, globalization is also associated with notions of dominance, particularly of certain norms and practices. To take one example, English is now a global language, often at the exclusion of others.
In an environment where large-scale market forces cannot be fully reversed, how do you ensure that the broader aspects of professionalism do not get crowded out?
This is where I would make a connection to debates about professionalism, particularly with what I call the dominance of “market logic.” A major component of globalization has always been its connection to market principles. Originally, this came in the form of international trade and capital flows. However, in recent years, market logic seems to have “jumped the track” such that it—and perhaps more appropriately, the idea of it—has become the dominant tenet of how institutions are organized.
This emerging dominance of market logic is having a profound impact on the professions. For instance, the state’s capacity to regulate political and economic activity is now being contested. Previously, the state and the professions struck a bargain in which a profession was insulated from market pressures—for instance, they could establish barriers to entry and self-regulate—in exchange for offering a set of public goods. Globalization and the accompanying market logic have upset that bargain.
As a corollary, market logic has crowded out alternative organizing principles. The result is that professions, such as medicine or law, that were traditionally buttressed by the state are beginning to be exposed to market pressures. One is left with individuals in need of healthcare characterized not as patients, but as consumers, and doctors described not as professionals, but as healthcare providers. This market logic obscures the fundamental character of this professional relationship.
Wilkins: To push you on that last point, the challenge for the legal profession, in particular, is that it traditionally defined itself as “anti-market.” For instance, lawyers historically couldn’t advertise; it was taboo to talk about money; there were rules about soliciting clients. So, in many ways, at its earliest origins, there were anti-market mechanisms built into the legal profession’s self-understanding.
Many of those things, for good reasons, have been rejected as anti-competitive, as taking away consumer choice, and as leading to higher prices. The question is whether the profession has, in your language, too fully embraced market logic and swung in the other direction. Indeed, in the legal profession, things like profits per partner and other economic metrics are now talked about like statistics in baseball.
In light of all this, how do you think about “professionalism” in a world in which you can no longer reject the market—a market, I might add, that is increasingly competitive—but also a world in which you want to maintain the values that originally underpinned the profession?
Khurana: Professionalism becomes reductive when market guidelines come to define its nature and character. To draw an analogy, what’s interesting is that democracy—like the professions—has always connected with the markets. But when did those two terms become symbiotic? For instance, people now talk about “shareholder democracy” as if somehow being an owner of capital is, part and parcel, the practice of democracy.
The professions have become decoupled from aspects that we would have historically associated with them in favor of a view of professionalism-as-expertise. Traditional understandings of professions flowed from the view that there was a problem that required specialized education and the application of judgment that could only be garnered through experience. That understanding is being replaced by the notion of someone simply being “an expert” in something. For example, we have seen the loosening of the word “profession” to include categories such as the “professional chef” or the “professional artist” or the “professional hairdresser.” Increasingly, the term has been connected to what might be called an “occupational view.”
Market logic seems to have become the dominant tenet of how institutions are organized.
Moreover, professionalism has been decoupled from what we have historically understood as the normative values surrounding the work. The professions, originally conceived, were meant to have a certain disinterested quality. They were based on work done in the interest of the client, not one’s own personal gain. Professions acted on behalf of society. The implicit bargain was that this normative structure granted the professions certain status and rights, such as self-regulation. There was a social contract between the professional and the client, but also between the professional and society. The danger is that the more the market logic impinges, the more it crowds out those normative structures and the resultant social contracts.
Wilkins: In the essay I recently co-authored with Ben Heineman and Bill Lee (see “Professionalism in the 21st Century”), we argue against the kind of narrow definition of professionalism you describe by underscoring that in addition to being “technical experts,” lawyers are also “wise-counselors” who help clients understand not just what is legal, but what is right, and “leaders” in their own right, who are often responsible for running important organizations.
It may sound tautological, but very real market forces are driving organizations to adopt market logic. In the law, old and distinguished firms have literally gone out of business due to market pressures. And these market pressures are only likely to increase. In an environment where these large-scale economic forces you spoke of cannot be fully reversed, how do you ensure that the broader aspects of professionalism do not get crowded out?
Khurana: Great question. On the one hand, we have very good theories about how fields become professionalized—how an occupation makes the transition to a profession. This includes factors such as defining a distinct body of knowledge, a claim over a set of problems, the creation of licensing exams, the articulation of a set of norms and obligations, the role of continuing education, and the like. So, in that sense, I think we have very good theories on what I would call “professionalization.”
On the other hand, we don’t have good theories of de-professionalization, which in some sense captures what we have been talking about in the context of the battle between market logic run amok and traditional conceptions of professionalism. For instance, we don’t have very good understandings of the processes that lead professions to “open up” and lose their distinctive characteristics. To be sure, I think we have a good sense of what the phenomena look like—for instance, law firms that begin operating more like businesses. However, we don’t have a good theory to explain the underlying processes at play.
One hypothesis that you put forward—which is an important one—is that as market forces strengthen, this increases the likelihood of de-professionalization. Let me expand on that and add some other characteristics about professionalization in order to draw out some possible logics of de-professionalization.
One characteristic of professions is that they have a dense body of knowledge that is largely inaccessible and difficult to obtain. What happens, however, when that body of knowledge becomes easier to obtain? What happens when what was once esoteric becomes commonplace and more easily understood? That is one part of what we might be seeing today. One could imagine that the reason that law is becoming de-professionalized is the simple fact that its body of knowledge is no longer as opaque as it once was—that knowledge about it has become more generally accessible.
For instance, knowledge can become algorithmic, rather than subject to individual judgment. Perhaps as the knowledge economy develops and artificial intelligence advances, you might be able to enter your legal problem into a computer and have it produce some sort of algorithmic-based legal strategy. I’m just imagining!
As market forces strengthen, this increases the likelihood of de-professionalization.
Wilkins: You certainly are not imagining! It is happening (see “Disruptive Innovation”). On one level, it is about whether a computer can help a lawyer in his or her day-to-day tasks. On a deeper level, however, it’s about redefining the very notion of what it means to be a professional because, as you point out, we are seeing a vast reduction in information asymmetry between buyers and sellers and the commodification of knowledge. And that could lead to de-professionalization.
Khurana: So there is a threat to the body of knowledge. Another possible application of this is what I call “Taylorism,” after Frederick Taylor’s theory of scientific management, in which one takes what was once a complex task and, through the application of division of labor, breaks it up into its simpler component forms. This has the effect of reducing the level of autonomy of the person who once embodied the full complexity of that knowledge—in many ways, “the professional.” Moreover, by breaking the task up into segmented parts, this process has the potential to both utilize economies of scales as well as increase efficiencies. No single individual needs to “know everything.” And when I think about the outsourcing going on in the legal profession or in medicine, Taylorism is certainly part of that story. Therefore, another potential theory of de-professionalization might be: as Taylorism increases, there is a greater likelihood that a profession will lose its distinctiveness.
There are also sociocultural forces potentially at play. The similarities between the values of a society and the values embodied by a profession relate directly to the social esteem with which that profession is viewed. This has important knock-on effects on the ability of a profession to maintain its autonomy and to buffer itself against market logics. In other words, the more a profession’s underlying norms and values mirror those of society writ large, the greater chance it has to be insulated from the forces of de-professionalization.
Finally, there is a potential for the application of different types of organizational forms—forms that change the way the profession is practiced. For instance, law firms used to be only partnerships. That was an organizational choice found to be conducive to creating a certain kind of normative ethos. The market logic, however, may be pushing the emergence of organizational forms contrary to that old standard, thereby upsetting that longstanding normative ethos and in the process magnifying forces of de-professionalization. Thus, one now sees organizational forms that were traditionally associated with bureaucracies and business enterprises being applied to the legal field, whether in terms of managerial structures, including compensation structures, or human resources practices. The more this occurs, the more we might see de-professionalization.
Wilkins: Every one of the things you just mentioned is happening in the legal profession (see “More for Less”). Given all this, what does this mean for professional education? One way to think about it is that these things are happening, and the people going into a profession like law need to understand and know about them. In that sense, we have a responsibility to teach them about what’s going on in the real world. But given what we have been discussing, there is also a countervailing point that requires us to, in some sense, teach “against” market logic—or at the very least to understand them in a way that doesn’t subvert professionalism. How do you do that?
Khurana: That is a hard question, largely because within the professional schools themselves there isn’t agreement as to how we should approach that very issue. Let me make two points. First, returning to the logic of the market, we should be clear that educational institutions are not immune to it. Just look at the growth of joint degrees programs—M.D.-M.B.A. or J.D.-M.B.A.—many of which promise “business” knowledge. There are positives to this in terms of diffusion of knowledge. But there are also significant downsides. For instance, these programs are frequently constituted in ways that don’t give much consideration to the normative underpinnings of how you want a doctor to approach a patient or the relationship between legal counsel and a client.
An institutional vision provides a way of doing things collectively that everyone has an interest in doing, but no one has an individual incentive to do.
Second, and what I find particularly interesting, is that professional schools are increasingly seeing each other as competitors, not collaborators. That is creating a “commons” problem where no one is looking out for public knowledge because everyone is focused on their peers, increasingly viewing them as their competitors. The reality is that what made professional education historically powerful was the high level of collaboration within these communities on things like intellectual standards, faculty credentialing, and what the physical facilities needed to look like to perform their mission. That vision has largely been fractured, such that professional schools are beginning to mirror the phenomena they were built to buffer against—market trends. Rather than having some distance from the world, higher education institutions are increasingly becoming agents in the marketplace, which is in turn making them less critical.
Here is what I do think is possible: Historically, elite schools have set the tone and the standards of aspiration for what a profession could and can be, and how educational institutions might help advance that. For instance, elite schools create the frames through which a profession is understood as well as produce the future leaders and educators. Addressing these questions is bundled up in how we think about institutional change. On the one hand, I think we have lost some of our imagination for how to think about change. On the other hand, I also don’t think we have good theories for institutional transformation.
Think about law schools or business schools as institutions. In sociology, the definition of an institution is a system designed not to change. What happens is that we end up trying to apply theories of organizational change to institutional change. And we find ourselves coming up short. The reason is that there is a profound difference between organizational change and institutional change.
Organizational change is associated with a unitary structure where you have clear lines of control within a bounded area. Institutional change, on the other hand, requires building coalitions. It required influencing a number of distinct organizations within the wider institutional framework. It requires the capacity to develop a transcendent logic that connects what would otherwise be individual or organizational interests to a much larger vision. At its core, this institutional vision provides a way of doing things collectively that everyone has an interest in doing, but no one has an individual incentive to do. What we need is an institution and a place that can spur that sort of reflection and discussion. But it’s not easy because we don’t have good theories of institutional change. You always need some theory of action: if we pull lever X it will produce outcome Y. I don’t think we have that yet.
Wilkins: You’re certainly right. We used to have a very clear understanding on what the mission of legal education was; and that has fragmented into a thousand pieces, and there really hasn’t been anything to replace it. Moreover, elite educational institutions, like the one we both sit at, have an important role in redefining that mission. They always have had that role to play and they should not shrink from it. Your comments show the importance of understanding the trends that we see in the legal profession are part of a broader set of issues that are affecting professions as a whole.
Rakesh Khurana is the dean of Harvard College and the Marvin Bower Professor of Leadership Development at Harvard Business School. David B. Wilkins is the Lester Kissel Professor of Law, vice dean for Global Initiatives on the Legal Profession, and faculty director of the Center on the Legal Profession at Harvard Law School.