The Law Is Dead

Previously by C.T. Rossi: The Will to Power

Thus from 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

The law 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.

~ Bastiat, The Law

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 from Murder 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.

The Politicians: 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.

The essentially 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.

Corporate 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.

Academia: 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.

Then there 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.

Then there 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.

The Public: 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.

The Media: 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.

The Legal 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.

The insurance 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.

Rather than 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.