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How Did It Get This Way?

"The legal system, for all its worthy principles and for the good it

does in safeguarding Americans' rights and righting wrongs, is out

of whack in ways far worse than even conventional wisdom has it."

with Ted Gest and David Fischer, U.S. News & World Report, January 30, 1995, p.51

A Historical Respect for the Rule of Law

This country was founded upon the idea that the Rule of Law democratically derived, was best for governing society. It took precedence over the Divine Right of Kings, or the capricious whims of emperors and dictators.

The framers of our constitution have been considered to be among the most distinguished men in America at the time of our country's founding. Many of them were lawyers, or at least trained in Law. Indeed, today most of our politicians and presidents have been lawyers. So from the time of the country's founding up until just recent times there has been a long history of admiration and respect for lawyers and the services they performed.

Abraham Lincoln, himself, was a lawyer, Since he has often been regarded as one of the country's greatest presidents, if not the greatest; it is no wonder that law and lawyers who uphold and interpret the law have historically been held in such high regard and esteem by America.

But as Philip Howard has pointed out in his book: The Death of Common Sense, we can trace the waning of this great respect and admiration for lawyers to a beginning in the early to mid-sixties. So this respect and admiration for lawyers has declined during the last 30 years, approximately. According to Howard's book, during this period there has been an explosion in detailed laws which defy human judgment and rationality. Concomitant with the explosion in detailed laws during this period, has been an explosion in excessive, often frivolous litigation, a geometric increase in the number of lawyers entering the occupation and flooding the country with more opportunities for litigation, and an outrageous, almost obscene, increase in legal fees and the amount of money going into legal coffers. And unfortunately, much or most of this money greatly enriching the lawyers has come from taxpayers footing the bill directly, and from other more productive capital endeavors of our society which end up passing along greater costs to society's consumers who ultimately indirectly pay the rest of lawyers fees. Given these developments we should not be surprised that by and large most Americans have changed their opinions about lawyers, and the current efficacy of laws in America today.

Furthering our point that historically Americans have held their law and lawyers in great esteem until recently as already noted; we point to the fact that traditionally judges, too, have been accorded much admiration and respect throughout America. It was always axiomatic that one of the most highly valued occupational subgroups in our society was that of judge. In this regard think of the high honor and respect we pay to justices of the Supreme Court.

We expect a judge to be learned and wise, fair and honest, expertly schooled in the Rule of Law. Judges must not be given to whims or capriciousness; they must be objective and consistent. Additionally, the judgements they render should be blind to special or privileged considerations --- they must be equal and predictable in their applicability. Their judgements should show there is no special regard for a person's station in life, or in his/her socioeconomic status.

And remember that judges come from the ranks of lawyers. So if we hold judges in high regard; then most probably we would expect to hold lawyers (those in the pre-judge stage) in correspondingly high regard. Conversely, if today many judges are no longer held in high regard and esteem; then we would also expect to find lawyers who are correspondingly not held in high regard and esteem. The two things go hand in hand --- you like judges, you like lawyers; you don't like judges, you don't like lawyers.

What about the role of congress? What does it do? It legislates. To legislate means to write laws. To write laws it is perhaps most consistent that one should be a lawyer, and/or at least, extensively trained in the Law. So it is reasonable to assume that the extent to which congress is held in high regard and esteem, would closely parallel and correspond to the extent that lawyers, and their more highly developed counterparts, judges, are held in high regard and esteem.

Now anybody living on the planet here in America knows that there have been numerous polls and surveys which indicate that in very recent political times congress is definitely not now held in high regard and esteem by the country's constituents. It is also interesting to note that the man who just recently has been given the most power and authority in congress to get things done in America today and lead us out of our congressional and legal morass of laws is NOT a lawyer --- In fact, he's a Ph.D. and a historian: Newt Gingrich, Speaker of the House of representatives. We'll have to see where this will take us. The "jury is still out" as to whether or not he'll get anything done of substance and beneficial to the society. Only the prospective passage of time will tell.

At any rate what we have tried to show in this section is that traditionally and historically American have held their law, lawyers, judges, and congress in relatively high regard. Throughout the country's history there has always been a symbiosis in the way these all were related, including the courts and the presidency. That is so because in many respects lawyers, judges, and congress have often been composed of the same basic types of people with the same basic mission --- to write and/or interpret law

And many lawyers ultimately went on to become supreme court justices and/or presidents. So lawyers have been intricately woven into the social, historical and governmental fabric of the nation They have been there, and they have made this country work in the past, and they have been accorded their fair amount of high regard and respect for doing so. But now in recent times, as this book makes the case, things have changed, and indeed law has turned on society.

But our task in this chapter is to point up how we got this way. And in this context, it was our traditional high regard for the Rule of Law and lawyers, and the roles that they played in our government, which were major contributing factors in our allowing our society to get to its present state of legal malaise, whereby lawyers have been taking us indeed, to hell in a hand basket. However, this is not the whole story. It is merely one component in the total explanation --- a component which helped pave the way, if you will. It set the stage for the legal aberrations which have occurred over the last 30 years. Other sections in this chapter will try to complete explanations for the etiology of our having arrived at this presently absurd, ridiculous, unreasonable, and legally dysfunctional state.

Rationale and Philosophical Basis for Dysfunctional Practices by Lawyers

We're going to get a little theoretical in this section, and try to account for the philosophical basis upon which lawyers have derived justification and rationale for some of what I feel are their most dysfunctional current legal practices. Of course, since it is theoretical; we do not know if it is right. But what we can decide is that a critical analysis of the discussion offered here makes sense to explain how we got this way, living under legal tyranny.

The legal tyranny I am concerned about is that type which routinely subjects us to newly found "rights" for newly created "victims," at the expense of common sense, logic, and workability, and also at great financial expense to the society in the ways already mentioned and covered in this book.

Part and parcel of this new legal tyranny which modern day lawyers routinely unleash upon us, are the accompanying stretched technicalities, semantic distortions, and obtuse legalistic interpretations of law which are often patently absurd on their face.

A False Sense of Relativism

The first explanation I would make for the genesis and etiology of our legal malaise is that it is based on a false sense of relativism. You remember relativism; it's the notion that all things are relative to some point of reference, like a cultural or special group point of view. Once one concedes the reality of cultural relativism; it's a "hop skip, and a jump" to extend the concept to the idea that any particular idea, "thing," or custom is as good as another.

Then through a process of reductio ad absurdum, the idea is extended to reach the conclusion that if an idea is good in one setting, there's no reason that it might not be extended to (to be taken advantage of) in another setting. This gets us to the false notion that if a law works in one particular circumstance, environment, setting, etc.; perhaps it should be extended to other similar circumstances, etc. It's like, "Well, the law worked well in this situation; so there's no reason not to extend it to apply to another situation."

Thus, extending this idea to a mainstay concept like freedom of religion. We as a society are very careful not to apply the law in any way, shape, or form to favor one religion over another. In essence, we refuse to make a choice between them as to which is better, right, more correct, or less harmful than another, etc. In other words we refuse to make a choice, or we refuse to make a decision. We get locked-up by our very own concepts and immature understanding of the whole concept of relativism.

In our haste to not favor one religion over another we have refused to see just how bad some are as opposed to others. This makes no sense at all, and ridiculously ties our hands for choosing courses of action which hold the greatest good for the greatest number to be a value worth striving for or seeking. If all religions are equal; then none can be favored or better. So the government and its representative lawyers and judges spend an inordinate amount of time trying to make sure that no one religion is chosen over another.

You might at this point be thinking to yourself, "So, what's the problem with this? Don't we want the law to stay out of religion?" Ah, yes but ... You see the problem is that when we try to regulate, coordinate, allow, these various religions to thrive in our society, each protected as if they were just as good as another, or relatively equal in merit; then we allow ourselves to be tied-up in knots by legalistic technicalities and mumbo-jumbo preventing us from effectively dealing with cults, or any other group of religious weirdos and wackos that can successfully make the case and call themselves a religion. This provides fodder for lawyers and endless, expensive, time-consuming debates and legal wrangles about protecting their rights.

Notice in the above explanations, particularly in the last paragraph, the implied, close interplay between the corresponding notions of equality and relativism. False understandings of both concepts reinforce the wrong-headed application of both, and they are each used to buttress the validity of the other concept. These two ideas are exaggerated to the nth degree and help provide the overall justification for lawyers to do what they do in applying the law. The two ideas function as the well-spring for deriving all the needed rationale and logic for the typical application and extension of legalese to foster, promote, and protect lawyer beliefs and ideas about religious rights, group rights, victims rights, equality under the law, etc. ad nauseam.

The Deceptive Nature of Relativism

Thinking like each thing: practice, culture, value, or belief is as good as another poses a number of problems for individuals and society. This type of thinking, while on the surface appears to be possessed of intelligence, and maintaining an open mind to other perspectives and possibilities; is also unfortunately characterized by a refusal to choose that which is "better."

When we refuse to choose what is "better," an inextricable necessity of living, we postpone decision-making for acting in ways which would better maximize our continued survival. You see when you are alive, you will always be faced with choices for acting one way or another, for taking a particular action, etc., whatever, to get about the business of living.

Some of our choices will have to be more immediate than others; and the consequences of making wrong choices will sometimes be more immediate than others. For instance, if you are standing in the middle of the street and an oncoming truck is speeding toward you, you immediately have to make the decision to get out of the way, otherwise you may be hit, seriously injured, or die. However, making the decision to smoke cigarettes may shorten you life by 10 or 20 years; it may eventually kill you. But the consequences for your continued survival based on your smoking decision was not in and of itself immediately discernible. Nevertheless, over the span of your lifetime; it probably would have been better had you chosen not to smoke.

Now lets translate what we have been talking about relating to choices and how an over-commitment to a false relativism is actually bad for us. It's bad because while we continue to countenance and entertain living choices for ourselves and the society which legalistic, nit-picking, expensive, lawyers impose upon us to preserve and protect whatever idiotic set of minority group rights and practices they can think of as deserving of so-called legal protection; we allow ourselves to be too much distracted from selecting those things which are actually better, more productive and beneficial, and work for the greatest number of our democratic society.

In addition, by bastardizing the concepts of relativism and equality in law as it is currently practiced in America today; society is ill prepared to quickly come to grips with what is inherently bad, evil, or deleterious. For instance, you may suspect that a cult, holed-up in some compound is guilty of abusing small children, or is misappropriating the property and funds of its followers, or is storing nerve gas to distribute through air vents in future subway terrorist attacks, or is sacrificing stolen animal body parts to the devil. Whatever evil is occurring there, our tolerant society is legally ill-suited to take quick action to prevent and deter their continued deleterious activities because the cult could easily hire any number of unscrupulous lawyers to unleash upon society's court system and legal procedures to delay, if not totally prevent authorities from actually proving or finding out what is really going on there. Lawyers could claim protections for a religious group, invoke unreasonable search and seizure rules, cry about and prevent legal or illegal wiretaps, quash subpoenas and warrants, etc. And while all of these legal machinations are occurring more victims will fall prey to these evil-doers.

Lawyers will quickly tell you that's the price of living in a free society. They will say that democracy is condemned to put up with these kinds of excesses. They will say that everyone is entitled to a legal defense, etc.

And you know what I say? I say a responsible lawyer who represents the law for society and cares about society would refuse to take these cases. I say it is not absolute, or that it should not be absolute, that every cockamamie group and/or practice deserves a so-called proper legal defense. Let these weirdo, sometimes evil, groups go about the process of picking a lawyer who is one of them to defend themselves. If they don't have one; tough! Why should we be concerned with making it easy on them to be as they are? Why should a responsible, well-adjusted, lawyer member of the regular normal population feel any such obligation to defend any such type person, place, or thing. They should be allowed, and can turn down legal cases for principles or ethics. Why then should law schools teach that everyone is entitled to a good defense.

The truth of the matter is NO, EVERYONE is not entitled to as good defense. Maybe to you they are; but to me they are not. They might be entitled to look for someone who might represent them; or the court might order (force) someone to play devil's advocate. But lawyers who make ethical choices and have ethical reservations about defending such human garbage should have the ultimate right of turning down the representation of such cases. So I say if they cannot find a lawyer to represent them and their interests; it should not have to be guaranteed by our society that they will. That is their problem if they are so damn weird or evil that nobody wants to represent them. Tough!

Let's analyze what I have said above with reference to the concept of lying. Inherently we can all be committed to the idea that lying is, in general, not a good practice or idea. So we could legalistically say that one should never lie, period. We could even invoke the policy cliche that "Honesty is the best policy." Fair enough.

Now suppose a young girl runs by you presumably very frightened. Suppose a short while later, a man wielding an axe with crazed eyes asks you, "Which way did she go"? Are you going to tell him the truth? Or are you going to lie to him? You might consider that you are going to do something else other than these two choices; but you probably are definitely not going to tell him the truth.

What has happened in this hypothetical story? In it we are forced to decide between good and evil? Our decision is relatively clear-cut. Nevertheless, we make a choice. And it's a choice we must live with. But the reality is: no so-called good idea can be absolutely good in its real-world implementation. And we need to get the law, more importantly the lawyers, to begin to realize these points.

Would you want to represent Adolph Hitler, Jim Jones (of the Guyana cult), Jeffrey Dammer (the accused cannibal, serial murderer), David Koresh (of the infamous Waco incident), etc.? I don't, and won't. I say right-thinking lawyers, legitimately concerned about society, should take the same point of view. Evil is evil; deal with it! If you don't agree with these persons and/or the groups they represent and the practices they perform, then why should you be forced to defend them? It's their problem if they are so far out of the mainstream that nobody wants their case. Why should society care, or allow itself to be tied-up in legalistic knots over these kinds of characters?

As we have seen, a false understanding and application of the concept of relativism leads to a perverse and distorted understanding of equality. It has caused us to be distracted from things which are really important for society, to looking for and paying attention to every ridiculous "equal application of the law" that lawyers can stretch the concept to include, no matter how much they defy common sense.

Equality is a good concept; some might argue a precious concept. But be that as it may, lawyers playing their technical, semantic word-games, using legalese to stretch and apply equal treatment to all groups to justify creating, giving , and preserving new "rights" to every newly created victim or group, have rendered a good concept like equality as blatantly absurd in its legalistic implementation.

Moreover, when lawyers behave this way, they are actually behaving as pseudo-intellectuals. These pseudo-intellectuals, who think they are intelligent, and realize things that others don't, unquestionably conclude that everything is relative, and that there can be no absolutes except the law. Unfortunately, as we have shown such thinking leads to inherently counterproductive activities and inefficient consequences for the overall society.

As we made the case in an earlier chapter, the law will always be a poor substitute for reality. Therefore, when lawyers make the case that their interpretations of legal reality are in fact truly representative of the real reality; they are actually behaving unintelligently. If they really believe their legalistic mumbo-jumbo; they are definitely not as smart as they think they are. That is why I call them pseudo-intellectuals --- pretenders of great intelligence.

A truly intelligent person knows that "too much" or "too little" of anything can be harmful to us and to society in general. You can't have "too many" victims, before it becomes an unsolvable problem. You can't have "too many " lawyers before they cause more problems than they solve. You can't bend over backwards "too many" times to protect the rights of criminal offenders, before the good, non-offending citizenry will say enough is enough. You can't have "too many" lawsuits before society reaches the conclusion that it's too expensive, and some curbs on this type of activity will need to be imposed.

All of the assertions in the above paragraph recognize a fundamental truth about our existence. That is, everything in just the right amount is required. Our inescapable task is to continue trying to figure out the right amount. And as it should be obvious by now, that lawyers today in America routinely cross over the right amount.

Lawyers, as pseudo-intellectuals, don't realize their contradictory beliefs, like the fact that they defend their views of relativism and equality in an absolute way. When they legally act like every group is as good as another, therefore, deserving of their legal protection, and when they act like it's wrong to choose between them; then they are in effect saying each of these groups is equal. This begs the truth of the differences between them --- each group what they do and what they stand for. And it leads us down the whole slippery slope culminating in the absolute truth of an unrealistic equality.

Such lawyers leading us down this road to hell in a hand basket, as it were, for ostensibly good intentions, confuse their knowledge and understanding of the subtle nuances of law, relativity, and equality with evidence of their intellectual development. In reality, they are intellectual impostors, who don't have a clue as to how their ill-conceived, legalistic "do-gooder" actions are actually worsening our societal existence. To quote a great playwright: "Such men are dangerous!"