The Law Is Dead
Previously by C.T. Rossi: The
Will to Power
the four preceding articles, the definition of law may be gathered;
and it is nothing else than an ordinance of reason for the common
good, made by him who has care of the community, and promulgated.
St. Thomas Aquinas, Summa
Theologica, First of the Second Part, Q. 90, Art. 4
is the organization of the natural right of lawful defense; it is
the substitution of collective for individual forces, for the purpose
of acting in the sphere in which they have a right to act, of doing
what they have a right to do, to secure persons, liberties, and
properties, and to maintain each in its right, so as to cause justice
to reign over all.
As a member
of that noble profession that concerns itself with the above subject
matter, I take care to proclaim that the great Law is dead (or,
at best, feeling quite unwell in 21st-century America).
There is little hope for a resurrection of Law until the most important
question is answered – whodunit?
Like any good
suspense novel there are a retinue of likely suspects. Was it the
pompous and hypocritical Politician, who rather than acting as guardian
of the Law, turned his sacred trust into a tool for personal benefit
and needed to off the Law before she squealed? Was it the shadowy
Corporate Special Interest in the dead of night who needed the Law
out of the way to effect his dastardly plan? Or was it the Professor,
envious that Law always took center stage over him and his work?
Perhaps it was the unassuming John Q. Public, who seemingly had
no motive. Was Public put up to it by the seductive Media – who
had an agenda of her own? Or was it – the unkindest cut of all –
Lawyer, the Law’s own lover, the most natural suspect?
I will spoil
the plot by telling you the ending of this mystery – stolen directly
on the Orient Express – that there are two possible explanations.
First, as the sleuth Poirot explains, we can blame the murder on
a random stranger – a tragic twist of fate. Alternatively, we can
posit that all of the suspects took their turn plunging the blade
into her bosom. Poirot suggested adoption of the former in his mystery.
I suggest the latter in ours.
The Law died
because she had to in order to make room for what Bastiat called
"legal plunder" which "destroys for its own profit,
and in different degrees amongst the rest of the community, personal
independence by slavery, liberty by oppression, and property by
plunder." The story is too in-depth to be told in a single
article, so I hope to provide fuller detail in the future. But for
now, I briefly want to provide an outline of the roles and motives
of the players.
Individuals whose skill set, natural or acquired, consists of those
things necessary for getting elected. The main skill is the art
of telling people what they want to hear (or avoiding what they
do not want to hear) – otherwise known as pandering. However, there
is a prerequisite to really successful pandering – acquiring the
resources necessary to pander – also known as begging.
negative, passive, and defensive nature of Law is an impediment
to promising a chicken in every pot, in the case of the voters,
and delivering said chickens in the case of moneyed special
interest. To give cover to the fact that special interest gets the
gold mine and voters the shaft, the Law has to be replaced with
a brummagem system of regulation underpinned by a purely positivistic
concept of law, i.e., unreasonable ordinances against the common
good, made by those receiving questionable delegations of power,
and concealed as much as possible.
Special Interests: As opposed to those individuals and entities
attempting to engage in lawful commerce, these are promoters of
perverting the Law either to win themselves graft or to use the
power of government to bludgeon their competition in a way the market
would not normally allow. In short, they want the game rigged in
their favor and are willing to pay to make that happen.
This is bifurcated entity: there is the institution and there are
the individuals. The legal profession was once learned by apprenticeship
and largely self-regulated on state and local levels. The advent
of the law school was ostensibly done to elevate and standardize
the level of legal learning. But eventually the law schools hungered
for the profits that only monopoly could bring and the path of apprenticeship
was largely outlawed. Controlling the doorway for entry into the
profession, the law schools soon learned that they could teach what
they wanted – first out of hubris and later the curriculum could
be put up for auction. Through partnership with the politicians
and special interest, the law schools soon learned that opening
a floodgate of free-flowing student loans – specially exempted from
bankruptcy – meant they could charge what they wanted.
is the individual law professor. Under the strictures of "publish
or perish," legal innovation is his friend. There is nothing
more exciting than when the Supreme Court makes a "major ruling"
in his specialty – for with such rulings the dreams of new law review
articles (prestige) or the revised 8th edition of his
treatise (money) come. Those that choose as their mistress the mastery
of sound principles of Law find themselves relegated to the dusty
corners of the law library.
are the select few, the legal rock stars, who labor proactively
to change the law and advocate new policy positions. But to carry
out such designs, the would-be legal divas need two things – access
to the power brokers and money – things that bring these legal geniuses
directly into the waiting arms of politicians and special interest.
Beginning with Prohibition, the hoi polloi were gradually inculcated
with a disrespect for law and a tolerance for corruption. The disdain
for (positive) laws is not wholly unjustified as Joe Six-pack can
intuit that the game has been rigged, that the bureaucratic regulation
of his life inures not to the good of the common man but rather
to special interest. The only line from Shakespeare he knows (and
he may not know it be Shakespeare, and certainly does not know it
to be a villain’s line) is "let’s kill all the lawyers."
While one may forgive Joe for failure to brush up on his Shakespeare,
it cannot be denied that he is the product of an educational system
which has robbed him of the ability to tell that there is a difference
between babies and bathwater. When encountering the reality of "legal
plunder," Joe is ill-equipped to appreciate that "Law"
exists – or might be possible. So for Joe the only good lawyer is
a dead one, unless – of course – he needs one.
There was much wisdom in Jefferson’s preference for "newspapers
without a government" but what would he have made out of the
chimera known as the corporate media? Most likely it would have
filled him with dread second only to the corporate farm. The corporate
media, owned by corporate plunderers and designed to (give) cover
to political plunderers, exists to make the public think that there
is a difference between "High
Popalorum" and "Low Popahirum" – the two official
brands of legal plunder. Implicit in the media’s pimping of official
two-party plunder is the marginalization of any other politico-intellectual
flavor –see Ron Paul as exhibit A.
Profession: Modern legal practice is fueled by insurance companies,
i.e., corporate special interest. For plaintiff’s attorneys, the
presence of policy monies means that a judgment is recoverable and
that they can afford to take the risk in investing time and money
(usually in the form of a line of credit) in the prosecution of
a case. For insurance defense attorneys, the insurer fuels his practice
by supplying the firm with (the attorney hopes) a steady stream
of cases to litigate. This, in essence, places the insurance defense
attorney in the moral hazard of serving two masters – the insurer,
upon whom his livelihood depends, and the single-event client in
the form of the insured. While the ethical codes are clear about
the insurance defense attorney’s loyalty to the insured/client –
such a system calls for moral courage on the part of the attorney
as he risks alienating his primary source of income.
companies evaluate lawsuits, not on the legal merits, but on cost/benefit
of litigation. The potential "hit" that the company will
take determines the vigorousness with which the defense will be
pursued. The companies have no qualms with settling somewhat dubious
smaller claims but will fight to the death larger claims where liability
is almost certain.
trim the fat they pay out in small claims, the insurance companies
attempt to job the system they created by resorting to politicians
in the form of tort reform. Tort reform is in essence wage and price
controls applied to the legal system. The "reforms" usually
consists of heightened evidentiary hurdles and damage caps. The
heightened evidentiary hurdles mean a greater investment of the
plaintiff attorney’s time and resources – sometimes stretching to
the point where the claim becomes economically unfeasible. The caps
not only aid the insurance companies in their cost/benefit analysis,
but exploit the economy of scale of large insurance defense firms
in order to financially exhaust the plaintiff into settling the
case before it becomes cost prohibitive to maintain.
We should not
forget the third attorney present in every litigation – judges.
The great majority of judges are elected, meaning that they are
to some degree forced to become politicians whether they wish to
or not. The sober qualities of a good trial judge seem antithetical
to the qualities generally comprising "electability."
The alternative is the appointment of judges – placing the bench
under the direct control of the special interest-dominated politicians.
Is there a
way to resurrect the Law? It may be possible to find her again but
not unless we pursue her and we cannot pursue her if we passively
accept as bona fide the system of legal plunder.
Rossi [send him mail]
is an attorney who lives in Mobile, Ala.
© 2012 by LewRockwell.com. Permission to reprint in whole or
in part is gladly granted, provided full credit is given.
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