Regulating professions
Introduction

On 17 July 1797, ten men gathered for a meeting at Wilson’s Hotel in Newark, Upper Canada (now Niagara-on-the-Lake, Ontario). The men were lawyers meeting under the auspices of the "Act for better regulating the Practice of Law," passed only a few weeks previously by the colonial government. At that meeting they fulfilled the responsibilities delineated in the act: They formed the Law Society of Upper Canada, selected benchers and a treasurer to lead it, and established regulations through which they could govern themselves, and determine entry to practice (Moore 1997; Riddell 1916). The 1797 act was path-breaking. It established law as a self-regulating profession, and granted lawyers a monopoly over certain aspects of practice in the colony. Elsewhere in the British colonies lawyers were appointed by the courts. Where they were self-regulating this was more by collegial agreement than government decree (Moore 1997). The establishment of a self-regulating law profession in Upper Canada occurred only a few years after the creation of the colony, and the redrawing of its court system. For fifty years, the Law Society of Upper Canada was the only legislated self-governing profession in the Canadian colonies; in the late 1840s self-regulation was granted to the medical and law professions in Lower Canada (Quebec). The number of self-regulating professions in Canada expanded significantly after Confederation. Today, there are scores of self-regulating professions in the country.

There appears to be something distinct about professions in Canada. Not only were self-regulating professions created by statute earlier in Canada than many other locales in the Western world, but they are still active, even as professional self-regulation is under attack in other nations. In recent decades, self-regulating professions in the United Kingdom, United States, and Australia have faced intense scrutiny and criticism (Abel 2003; Kleiner 2006; Paton 2008; Rees 2013; Nancarrow 2015). Legislative change in the United Kingdom has transformed regulatory institutions to the point that professions like medicine and law are no longer fully self-regulating (Dixon-Woods et al. 2011; Flood 2011; Chamberlain 2013). Self-regulation is cast as an outdated practice that contributed to elitism and high prices, restricted competition, and led to excesses and abuses (Abel 2003; Chamberlain 2013). In Canada, such criticisms are present, but muted. Some scholars have called Canada one of the "last bastions for professional self-regulation" in the world (Rhode and Woolley 2012: 2274; Gorman 2014).

Is Canada merely a laggard, or do diverging trends reflect distinct traditions of professional regulation? Professions have long been a feature of Canadian society; however, heretofore, the history of self-regulating professions in Canada, across several provinces and professions, has not been told. There is a considerable body of historical research focused on single professions, especially medicine (Bernier 1989; Howell 1981; Gidney and Millar 1984), and law (Moore 1997; Miller 1991; Vachon 1962; Veilleux 1997; Watts 1984). Explorations of several professions across time (such as Dussault 1978; Gidney and Millar 1994), and province (Tipliski 2004; Twohig 2006; Fahmy-Eid 1997), are few and far between. Thus, we know little about professional development in Canada across province and period. Moreover, with a few exceptions this literature has focused on the emergence of professions generally; less has been written on professional regulation, or professions’ relationships with the state. Regulation has been the focus of some government-sponsored commissions (see CNC 1970; CHA 1970; Trebilcock et al. 1979; Foulkes 1973; HPLR 1989), one comprehensive Canadian law review (Casey 1994), and a provincial policy review (O’Reilly 2000), but has yet to receive sustained academic attention.

This would appear to be a significant oversight. For many scholars, self-regulation is a core defining feature of "professions" (Chamberlain 2013; Freidson 2001; Corfield 1995). Professions have a degree of autonomy and social influence that distinguishes them from other occupations. Professions may possess some cultural authority linked with their knowledge and expertise (Starr 1982), but their social power and influence is primarily tied to their regulatory authority. Self-regulating professions have governance power. These powers are delegated to them by the state (Freidson 2001). Why does the state delegate powers to professional groups? How have professions won these powers? Few studies actually address these questions empirically; however, two types of explanations can be found in the sociological literature. On the one hand, those writing from a neo-Weberian perspective tend to see professional groups as highly influential: They request powers from the state, and if they have sufficient expertise, or advance convincing arguments, then they are granted their requests (Saks 2010, 2015). On the other hand, scholars contend that "the state" has something to gain from regulating professions: for instance, enhanced legitimacy (Spencer 1896; Evetts and Dingwall 2002), valued expertise (Halliday 1987), or an extension of the state’s capacity to govern (Johnson 1993, 1995). While neo-Weberian approaches see professions as the primary driver of regulatory outcomes, alternative views ascribe a central role to state actors. Writers on each side are able to draw on historical evidence to support their claims, but the two theories have not been applied and contrasted systematically.

In light of current trends and theoretical debates about professional regulation, this book explores the emergence of self-regulating professions in four Canadian provinces between Confederation and the 1930s. This study not only attempts to fill a gap in the historical literature on self-regulating professions in Canada, it tests competing sociological explanations to determine how professions in Canada became self-regulating. When state actors regulated professions, were they simply convinced by a good argument, or did they seek to draw on professions’ expertise or social position for governance reasons? Although my focus is on four Canadian provinces (British Columbia, Ontario, Nova Scotia, and Quebec), I argue that understanding the Canadian experience can shed light on professions and professional self-regulation in other parts of the world – especially in countries where patterns of professional regulation have been similar, like the United States and United Kingdom. Sociological theory has provided helpful tools to understand professional regulation, but as this study will show, these theories have limitations. This work, I hope, will help sociologists create better theories to improve our understanding of professions and their roles in society. This chapter sets the scene for the chapters to follow. First, I define professional self-regulation. Then, I present a brief summary of the literatures on professional self-regulation, and on professions in Canada. Last, I provide an overview of the book.

Professional Self-Regulation
In this context, the term "regulation" refers to "the powers of an agency or organisation to set a framework of rules through which it holds others to account" (Davies 2004: 56). Professions, like other social entities, might be regulated in a variety of ways. The most prominent professions, however, have been granted powers of self-regulation. Professional self-regulation is a type of regulation in which the authority to govern a profession is granted to a body composed (predominantly) of professionals. The power to self-regulate is delegated to professions by the state through legislation (Freidson 2001; Rubin 1980). Among the powers granted to self-regulating professions are (1) the power to regulate (in some manner) entry to practice (or access to a restricted title), and ensure that practitioners conform to a standard of practice; (2) the power to govern practitioner behaviour in a manner that ensures professional practice is conducted ethically and responsibly (Adams 2017a; Rubin 1980).

Some self-regulating professions are closed completely, while others possess a restricted title only. In closed professions, only the licensed or registered may practice. In restricted title professions, anyone may practice, but only the registered can utilize a restricted title, which is typically a marker of skill and status (historically "chartered accountant" was a prominent example). Both types of professional regulation have been common, but the extent of each varies across time and place. For instance, in the United Kingdom, very few professions have been fully closed; most possess a restricted title only (Price 2002). In contrast, in Canada, many professions have been closed.

Sociologists distinguish an "Anglo-American" model of professions and professional regulation from a Continental European model. In the United Kingdom and the United States (as well as Canada), self-regulating professions have been the norm. These professions were usually established by practitioners who banded together to raise their status and authority, and improve their market position, through lobbying states for legislation granting them privileges (Larson 1977; Collins 1990; Neal and Morgan 2000; Saks 2015). In contrast, the creation of professions in Continental Europe has been more state-directed (Collins 1990; Neal and Morgan 2000). In Germany, for instance, professional (voluntary) associations did not emerge until after licensing and education had been well established (Neal and Morgan 2000). High status professions only have limited powers of self-regulation, and are subject to state oversight; entry to practice is regulated by the state, not the profession (Neal and Morgan 2000). Professional regulation has varied across nation (Neal and Morgan 2000; Rueschemeyer 1986). Professional regulation has also varied across time (Saks 2015; Chamberlain 2013; Krause 1996). For example, scholars argue, the state has become much more active in professional regulation in Anglo-American contexts throughout the twentieth and into the twenty-first centuries (Krause 1996; Saks 2015; Chamberlain 2013). While historically professional regulatory bodies were often composed entirely of professionals, in the latter half of the twentieth century lay representation expanded (Stacey 1995; Adams 2017a). State actors’ direct involvement on regulatory bodies (or overseeing their decisions) grew as well (Adams 2009a). Thus, today, professional regulatory bodies have a mix of members. In fact, in the United Kingdom, it is now members of the public, not professionals, who comprise the majority on regulatory boards in medicine and law (Paton 2008; Chamberlain 2013). Furthermore, in many countries, regulatory bodies’ powers of self-regulation have been curtailed: by the end of the twentieth century self-regulating professions had fewer powers than their predecessors (Coburn 1999; Saks 2015; Krause 1996). Research on professional regulation has illuminated recent changes, but historical trends and patterns of professional regulation have received less consideration.

Self-Regulating Professions in Historical Context
Although some professions date back centuries, most scholars see self-regulating professions as a modern phenomenon (cf. Sciulli 2009), and a product of the emergence of industrial capitalism, the rise of the modern state, urbanization, an expanding market for services, and the expansion of higher education (Larson 2013; Macdonald 1995; Johnson 1982, 1993; Brint 1994). Legislation to regulate professions in the United Kingdom is typically dated to the nineteenth century: legislation governing medicine was passed in 1858 (Chamberlain 2013); the regulation of law was more gradual and piecemeal (Burrage 2006). In the United States, statutes governing lawyers were passed in the early to mid-eighteenth century (ibid.), while legislation regulating medical doctors dates from the late eighteenth to early nineteenth century (Shryock 1967). For the most part this legislation was rescinded in the early to mid-nineteenth century. By the 1830s and 1840s law and medicine were largely unregulated in the United States, and entry to practice was open (Shryock 1967; Burrage 2006). Regulatory measures to govern these two professions in the United States were again enacted beginning in the 1860s (for law) and 1870s (medicine); professional regulation gradually expanded over the next several decades.

In both the United Kingdom and United States, legislation regulating professions was typically prompted by organized professional groups who appealed to state actors for the privileges of self-regulation, and restrictions on entry to practice (Larson 1977; Macdonald 1995). Those who were well organized, and who could advance a claim to expertise based on their advanced training, were more successful in achieving self-regulation (Larson 1977; Macdonald 1995). Nonetheless, professionals’ social backgrounds were not irrelevant. Self-regulating professions were dominated by middle- and upper-class white men (Witz 1992; Corfield 1995). Further, professionals possessed a measure of both social respect and prestige (Corfield 1995; Brint 1994); their status facilitated their ability to win privileges from nineteenth-century states. Over time, according to Stephen Brint (1994), the bases of professionalism have switched from status and trust to expertise and training. While the old form of professionalism had a strong community orientation, newer forms direct expertise towards the market (Brint 1994: 15–20).

Sociologists contend that underlying professional self-regulation is a "regulatory bargain": states grant professions powers of self-regulation in return for the assurance that professionals will use this power in the public interest (Macdonald 1995; Gorman 2014). Some suggest that state actors cannot effectively regulate professions directly because they lack the specialized knowledge necessary to determine who is competent to practise (Sheppard 1970; CHA 1970). In contrast, others argue that state actors formed a partnership with professions, whereby the latter acted as "agents of the state" (Larkin 1995: 26). For a variety of reasons, the traditional state-profession relationship has broken down over time. British scholars have identified two principal developments. On the one hand, a series of scandals in UK professions revealed professional incompetence and misconduct, suggesting that self-regulating professions cannot be trusted to put the public’s interests above their own (Dixon-Woods et al. 2011; Chamberlain 2013). On the other hand, scholars contend state agendas and political goals have changed. States are less willing to delegate authority, and have become more interventionist (Abel 2003; Chamberlain 2013; Johnson 1993). Both of these trends have combined to alter state-profession relations fundamentally, both in the United Kingdom and elsewhere.