American Legal System Is Corrupt Beyond Recognition By Judge Edith Jones (U.S. Court of Appeals for the Fifth Circuit)
To the Federalist Society of Harvard Law School
28.ii.MMIII
The American legal system has been corrupted almost beyond recognition. The question of what is morally right is routinely sacrificed to what is politically expedient. The change has come because legal philosophy has descended to nihilism.
The integrity of law, its religious roots, its transcendent quality are disappearing. I saw the movie 'Chicago' with Richard Gere the other day. That's the way the public thinks about lawyers.
The first 100 years of American lawyers were trained on Blackstone, who wrote that: 'The law of nature dictated by God himself is binding in all counties and at all times; no human laws are of any validity if contrary to this; and such of them as are valid derive all force and all their authority from this original.' The Framers created a government of limited power with this understanding of the rule of law - that it was dependent on transcendent religious obligation.
The business about all of the Founding Fathers being deists is "just wrong," or "way overblown." They believed in "faith and reason," and this did not lead to intolerance.
This is not a prescription for intolerance or narrow sectarianism, for unalienable rights were given by God to all our fellow citizens. Having lost sight of the moral and religious foundations of the rule of law, we are vulnerable to the destruction of our freedom, our equality before the law and our self-respect. It is my fervent hope that this new century will experience a revival of the original understanding of the rule of law and its roots.
The answer is a recovery of moral principle, the sine qua non of an orderly society. Post 9/11, many events have been clarified. It is hard to remain a moral relativist when your own people are being killed.
The first contemporary threat to the rule of law comes from within the legal system itself.
Alexis de Tocqueville, author of Democracy in America and one of the first writers to observe the United States from the outside looking-in, described lawyers as a natural aristocracy in America. The intellectual basis of their profession and the study of law based on venerable precedents bred in them habits of order and a taste for formalities and predictability. As Tocqueville saw it, these qualities enabled attorneys to stand apart from the passions of the majority. Lawyers were respected by the citizens and able to guide them and moderate the public's whims. Lawyers were essential to tempering the potential tyranny of the majority.
Some lawyers may still perceive our profession in this flattering light, but to judge from polls and the tenor of lawyer jokes, I doubt the public shares Tocqueville's view anymore, and it is hard for us to do so.
The legal aristocracy have shed their professional independence for the temptations and materialism associated with becoming businessmen. Because law has become a self-avowed business, pressure mounts to give clients the advice they want to hear, to pander to the clients' goal through deft manipulation of the law. While the business mentality produces certain benefits, like occasional competition to charge clients lower fees, other adverse effects include advertising and shameless self-promotion. The legal system has also been wounded by lawyers who themselves no longer respect the rule of law.
As Kenneth Starr has said, "It is decidedly unchristian to win at any cost." Most lawyers agree with him. However an increasingly visible and vocal number apparently believe that the strategic use of anger and incivility will achieve their aims. Others seem uninhibited about making misstatements to the court or their opponents or destroying or falsifying evidence. When lawyers cannot be trusted to observe the fair processes essential to maintaining the rule of law, how can we expect the public to respect the process?
Another pernicious development within the legal system is the misuse of lawsuits. We see lawsuits wielded as weapons of revenge. Lawsuits are brought that ultimately line the pockets of lawyers rather than their clients. The lawsuit is not the best way to achieve social justice, and to think it is, is a seriously flawed hypothesis. There are better ways to achieve social goals than by going into court.
Employment litigation is a particularly fertile field for this kind of abuse. Seldom are employment discrimination suits in our court supported by direct evidence of race or sex-based animosity. Instead, the courts are asked to revisit petty interoffice disputes and to infer invidious motives from trivial comments or work-performance criticism. Recrimination, second-guessing and suspicion plague the workplace when tenuous discrimination suits are filed creating an atmosphere in which many corporate defendants are forced into costly settlements because they simply cannot afford to vindicate their positions.
While the historical purpose of the common law was to compensate for individual injuries, this new litigation instead purports to achieve redistributive social justice. Scratch the surface of the attorneys' self-serving press releases, however, and one finds how enormously profitable social redistribution is for those lawyers who call themselves 'agents of change.' What social goal is achieved by transferring millions of dollars to the lawyers, while their clients obtain coupons or token rebates?
George Washington asked in his Farewell Address, "Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths in courts of justice?"
Similarly, how can a system founded on law survive if the administrators of the law daily display their contempt for it? Lawyers' private morality has definite public consequences. Their misbehavior feeds on itself, encouraging disrespect and debasement of the rule of law as the public become encouraged to press their own advantage in a system they perceive as manipulatable.
The second threat to the rule of law comes from government, which is encumbered with agencies that have made the law so complicated that it is difficult to decipher and often contradicts itself.
Agencies have an inherent tendency to expand their mandate. At the same time, their decision-making often becomes parochial and short-sighted. They may be captured by the entities that are ostensibly being regulated, or they may pursue agency self-interest at the expense of the public welfare. Citizens left at the mercy of selective and unpredictable agency action have little recourse.
I recommend three books by Philip Howard: The Death of Common Sense, The Collapse of the Common Good, and The Lost Art of Drawing the Line, which further delineate this problem; and Michael Novak's book, On Two Wings: Humble Faith and Common Sense.
The third and most comprehensive threat to the rule of law arises from contemporary legal philosophy.
Throughout my professional life, American legal education has been ruled by theories like positivism, the residue of legal realism, critical legal studies, post-modernism and other philosophical fashions. Each of these theories has a lot to say about the 'is' of law, but none of them addresses the 'ought,' the moral foundation or direction of law.
Roger C. Cramton, a law professor at Cornell University, wrote in the 1970s that "the ordinary religion of the law school classroom" is "a moral relativism tending toward nihilism, a pragmatism tending toward an amoral instrumentalism, a realism tending toward cynicism, an individualism tending toward atomism, and a faith in reason and democratic processes tending toward mere credulity and idolatry."
There has been no Great Awakening in the law school classroom since those words were written. Now it is even worse because faith and democratic processes are breaking down.
The problem with legal philosophy today is that it reflects all too well the broader post-Enlightenment problem of philosophy. Ernest Fortin wrote in Crisis magazine: "The whole of modern thought has been a series of heroic attempts to reconstruct a world of human meaning and value on the basis of our purely mechanistic understanding of the universe."
All of these threats to the rule of law have a common thread running through them. Professor Harold Berman identifies it: "The traditional Western beliefs in the structural integrity of law, its ongoingness, its religious roots, its transcendent qualities, are disappearing not only from the minds of law teachers and law students but also from the consciousness of the vast majority of citizens, the people as a whole; and more than that, they are disappearing from the law itself. The law itself is becoming more fragmented, more subjective, geared more to expediency and less to morality. The historical soil of the Western legal tradition is being washed away and the tradition itself is threatened with collapse."
"Of all the dispositions and habits which lead to prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism who should labor to subvert these great pillars of human happiness - these firmest props of the duties of men and citizens."
Natural law is not a prescriptive way to solve problems. It is a way to look at life starting with the Ten Commandments and provides a framework for government that permits human freedom. If you take that away, what are you left with? Bodily senses? The will of the majority? The communist view? What is it - 'from each according to his ability, to each according to his need?' I don't even remember it, thank the Lord.
I am an unabashed patriot - I think the United States is the healthiest society in the world at this point in time, although there are other ways to accommodate the rule of law, such as constitutional monarchy.
Our legal system is way out of kilter. The tort litigating system is wreaking havoc. Look at any trials that have been conducted on TV. These lawyers are willing to say anything.
Have you looked at what people have to go through who are nominated for federal appointments? They have to answer questions like, 'Did you pay your nanny taxes?' 'Is your yard man illegal?'
In those circumstances, who is going to go out to be a federal judge? People who have accomplished nothing. In other words, federal employees.
-- Judge Edith H. Jones has a B.A. from Cornell University and a J.D. from the University of Texas School of Law. She was appointed to the Fifth Circuit by President Ronald Reagan in 1985. Her office is in the U.S. Courthouse in Houston.