A minor correction:
America is a Republic, not a Democracy
CONTEMPORARY
THREATS TO THE RULE OF LAW
SPEECH TO JAMES MADISON PROGRAM, PRINCETON, UNIVERSITY
FEBRUARY, 2001[1]
We are proud to call ourselves a nation of laws, not men. The phrase signifies proof of our democratic form of government, self-rule of the people, a commitment to equality before the law, and opposition to tyranny and arbitrariness. I begin with Former Prime Minister Margaret Thatcher’s explanation of the rule of law:
“There can be no freedom without order. There can be no order without authority. The rule of law is all that stands between civilization and barbarism, for as Locke said, ‘where there is no law, there is no freedom.’”[2]
The point of law is thus to set ground rules for a free peoples’ conduct of their lives, not to diminish but to enhance freedom. Hobbes put it, “as hedges are set, not to stop travelers, but to keep them in the way.”[3]
The characteristics of the rule of law include: (1) generality/evenhandedness: No man is above the law; (2) fair process; (3) predictability; (4) intelligibility: Law must be understandable by those who are governed by it; and (5) democratic accountability.
Recent developments suggest that our nation’s commitment to the rule of law as a device to protect individual freedom is declining. The threats spring from three sources -- from within the legal system; from government; and from legal philosophy. I hope here to explain these threats, and why we should be concerned about them.
I. THREATS FROM WITHIN THE LEGAL SYSTEM
Alexis deTocqueville described lawyers as a natural aristocracy in America.[4] 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. These qualities, Tocqueville believed, 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 de 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. When the law business slows down, there is a temptation to engage in make-work and other strategies to increase billings. There is an uneasy tension between the disinterested ethical practices of a profession and a business’s demand for profits and market share. 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. Kenneth Starr, an admirable man, was recently quoted as saying, “It is decidedly unChristian to win at any cost.”[5] Most lawyers surely agree with him. But again, an increasingly visible and vocal number apparently believe that the strategic use of anger and incivility will achieve their aims. Others seem uninhibited even about making misstatements to court or their opponents or destroying or falsifying evidence. In my hometown of Houston, a distinguished panel of attorneys and judges recently convened a day-long symposium to expose and condemn the growing use of unethical litigation tactics. 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?
A practice more subtly subversive of the rule of law is one that does not flout the system but masquerades as a legitimate use of it. As one example, we see lawsuits wielded as a weapon of revenge.
Employment litigation is, in my experience, particularly vulnerable to 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 intraoffice 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. Paradoxically, the number of employment disputes has risen while the economy is producing jobs at a rapid rate. One wonders why people should pursue litigation when other, presumably more pleasant, employment is available?
The legal system is also abused when lawsuits are brought that ultimately line the pockets of lawyers rather than their clients. Lawyers can select a friendly forum, procure a class action certification and inspire some suitably timed investigative journalism, creating an atmosphere in which many corporate defendants are forced into costly settlements because they simply cannot afford to vindicate their positions. Even if a defendant has perpetrated a small injury against each of the class members, it is difficult understanding the social goal achieved by transferring millions of dollars to the lawyers, while their clients obtain coupons or token rebates.
A related type of litigation targets entire industries for making or distributing allegedly defective products, whether or not damages can be shown under established legal theories. Such litigation deliberately bypasses conventional legislative and administrative processes, the legitimate devices of self-government. Yet its avowed goal is to ban the products or impose fines, in the form of punitive damage awards, on the offenders. This is essentially regulatory, not compensatory litigation. 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’ selfserving press releases, however, and one finds how enormously profitable social redistribution is for those lawyers who call themselves agents of change. One may easily be cynical about their motives.[6]
These phenomena in the legal profession are well known to you, and their consequences for the rule of law should be obvious. The generality, fair process, predictability and accountability of the legal system are all up for grabs when self-interest and unethical conduct become widespread. In his Farewell Address, George Washington rhetorically asked “Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths . . . in courts of justice?” Likewise, one may ask how a system founded on law can survive if the administrators of law, the lawyers, daily disrespect it? Chief Justice Earl Warren stated that “law floats in a sea of ethics . . . Without law, we should be at the mercy of the least scrupulous; without ethics, law could not exist.” 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 manipulable.
II. GOVERNMENT THREATS
The second source of threats to the rule of law comes from government itself. The last century saw the rapid expansion of government at all levels, including the creation of a huge administrative and law enforcement apparatus and the expansion of the powers of the judiciary. The “law” underlying our rule of law has concomitantly exploded. This is not all to the good.
In general terms, the more law exists, the less capably can the rule of law can be maintained. Law not only enables the people to order their activities productively, but also constrains the actors in government. James Madison explained this in the Federalist papers: “The difficulty is this: you must create a government that is able to control the governed, and then oblige it to control itself.” The multiplication of legal commands disserves both these goals. Law that becomes too complex may become self-contradictory. People cannot understand the basic commands, much less follow them. The essential qualities of generality, predictability and intelligibility are forfeit.
Think of the federal income tax code. Every year, several dozen accountants are given a set of data and asked to calculate the income tax due for a hypothetical family. Every year they all reach different, sometimes wildly different results. This would be funny if the test didn’t suggest that any of us could face crippling penalties if we guessed differently from IRS on a tax issue. As Judge Stephen Williams says, “when commands conflict, lawlessness is inevitable. Respect for the rule of law is undermined.”[7]
The additional point is that a proliferation of laws debilitates the political system itself.[8] When lawmakers or enforcers’ agendas are filled with every conceivable social problem -- crime, education, environment, highways, land use, historical preservation, agricultural research, to name a very few -- the opportunity for feedback in the political processes and for necessary reform is stymied. As Judge Williams put it, how can you bring a letter of complaint to the top of the Congressman’s pile . . .? Political accountability thus erodes, as the political branches’ responsibilities increase.
This thesis readily explains The Death of Common Sense (the title of author Phillip Howard’s book) in administrative agencies entrusted by the politicians with broad, vague and politically unaccountable power. Agencies have an inherent tendency to expand their mandate. At the same time, their decisionmaking often becomes parochial and shortsighted. 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.
Judicial bodies are hardly immune from self-aggrandizement and the tendency to make too much law. In the 15 years I have served on the federal court, 450 volumes of appellate reporters have been published. The number of volumes published annually has doubled in the past few decades. Although courts explain expansions of legal entitlements with decorative phrases about creating remedies for wrongs, enforcing rights and preventing discrimination, I suspect that many of our innovations would not satisfy rudimentary social cost-benefit analysis.[9]
More to the point, the explosion of caselaw has not furthered the rule of law. As with the Tax Code, the existence of too many varying and conflicting precedents enables clever researchers to uncover a decision to serve any purpose. Not only does law then become unpredictable, but the very process of articulating caselaw often undermines its generality. Consider the Supreme Court’s First Amendment religion cases. Nearly 50 years of precedents exist, but the Court’s underlying principles remain inscrutable, if not contradictory. Unsurprisingly, lower courts flail about when attempting to apply the precedents or, worse, they exploit the variations for the sake of preconceived goals. This type of judge-made law is antithetical to the rule of law.
The thesis that too much law leads to less rule of law and to less freedom remains strangely controversial. Perhaps the lesson in the fall of the Communist governments, where human freedom was supplanted by totalitarian commands, has already been forgotten. For we seem to be rushing headlong to create more and more law, heedless of the threat it poses and blind to the alternative, i.e. non-legal forms of social accountability that a free people may employ.
III. PHILOSOPHICAL THREATS
The third source of threats 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.
Years ago, Professor Roger C. Cramton described “the ordinary religion of the law school classroom” as “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.”[10] There has been no Great Awakening in the law school classroom since those words were written. If anything, my sense is that amoral instrumentalism, atomism and cynicism are gaining the upper hand, while even faith in reason and democratic processes is breaking down.
Professor Mary Ann Glendon has described the deterioration in legal reasoning another way:
Many legal academics still share . . . the scholar’s commitment to pursue knowledge wherever it leads . . . But for a growing coterie of professors . . . that ideal is simply meaningless. In some quarters, notions of knowledge, objectivity and truth have come under heavy attack. If truth is whatever you want it to be, or the will of the stronger, the distinction between scholarship and advocacy collapses.
If the law is radically indeterminate, then all legal scholarship becomes a form of advocacy.[11]
When legal philosophy rejects the notions of moral and objective truth, what takes their place? Should the economic analysis of law govern, or feminist claims, or the will of the unchecked majority, or simply the rule of whoever holds political power? Legal philosophers have had to contrive all these frameworks because they cannot accept any higher law or transcendent principles. And as my host Professor Robert George demonstrates, even Justice Holmes, the great skeptic whose critique of arid legal logic ushered in the current relativistic era, begged the crucial question.[12] If as Holmes said, the life of the law is experience, whose or what experience is it? Is every judge permitted to proceed through the cathedrals of legal decisionmaking bestowing tokens of his or her experience on the adoring litigants? Is every legislator a law unto himself, a law that is founded on no more than his unique experiences?
The problem with legal philosophy today is that it reflects all too well the broader post-Enlightenment problem of philosophy: “. . . 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.”[13]
Because ideas have consequences, contemporary legal philosophy gnaws at the foundation of the rule of law. For many legal theoreticians, generality and evenhandness are not “realistic” goals because the powerful will always prevail. Fair process is an illusion; the judge or decisionmaker will do what he or she wants to do. Predictability is less important than “right results.” Begging the question of what is morally right, the results are those which legal scholars find fashionable. Intelligibility is a mirage, because every perception of the law is subjective. And to today’s legal philosopher, democratic accountability is simply not a significant “value.”
IV. CONCLUSIONS
A common thread runs through all of these threats to the rule of law. The deceits and peculations of individual lawyers, the misuse of the legal system, the proliferation of indecipherable and conflicting legal commands, the descent of legal philosophy to nihilism share the same basic flaw. Professor Harold Berman summed it up:
“. . . 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, concerned more with immediate consequences and less with consistency or continuity. The historical soil of the Western legal tradition is being washed away in the twentieth century, and the tradition itself is threatened with collapse . . . .”[14]
What a change from the Founding Era! The transcendent roots of law were not then forgotten. Generations 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, mediately or immediately, from this original.”
George Washington expressed the common American Sentiment when, in the Farewell Address, he declared
“Of all the dispositions and habits which lead to political 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.”
The Framers created a government of limited power with checks and balances to secure human freedoms, those unalienable rights with which all men are endowed by their Creator. The rule of law was essential to this design. And the rule of law was in turn seen by them as dependent on transcendent religious obligation. The Framers understood that religion and morality are interconnected, that the rule of law springs from those sources, and all are indispensable to a self-governing people. 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 so that our nation, under God, may continue to walk in the path of freedom.
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[1] Another version of this speech was delivered to the Christian Legal Society in November, 2000.
[2] Reason & Religion, The Moral Foundations of Freedom, Rt. Hon. The Baroness Margaret Thatcher, Jas. Bryce Lecture on Am. Com’w. 1996, IUSS, Univ. of London, at 6.
[3] Id. at 7.
[4] Democracy in America, Lawrence/Mayer trans-1969, at ch. 8, pp. 26370.
[5] First Things, 10/2000, at 96.
[6] See Bradsher, “S.U.V. Tire Defects Were Known in ‘96 but Not Reported,” The New York Times, June 24, 2001 (reporting that personal injury lawyers withheld from safety agency for several years their information on a pattern of Firestone tire failures on Ford Explorer sport utility vehicles – to maintain favorable litigating positions).
[7] Williams, The More Law, the Less Rule of Law, 2 The Green Bag 403, 405 (1999).
[8] Id. 405-06.
[9] See also the new book by Philip K. Howard, The Lost Art of Drawing the Line, concerning the consequences of excessive litigation and judicial “rights” – creation.
[10] Cramton, The Ordinary Religion of the Law School Classroom, 29 J. Legal Ed. 247, 262-63 (1978).
[11] Glendon, A Nation under Lawyers: How the Crisis in the Legal Profession is Transforming American Society, at 209. (1994).
[12] George, One Hundred Years of Legal Philosophy, 74 Notre Dame L. Rev. 1533 (1999).
[13] Ernest L. Fortin, The Natural Wrong in Natural Rights, Crisis, May 1994 20, 24.
[14] Quoted in Charles Rice article.