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,"
she told the students.
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,"
said that the business about all of
the Founding Fathers being deists
is "just wrong," or "way
overblown." She says they believed
in "faith and reason," and
this did not lead to intolerance.
is not a prescription for intolerance
or narrow sectarianism," she
continued, "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.
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."
to the judge, the first contemporary
threat to the rule of law comes from
within the legal system itself.
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," Jones told the students.
"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.
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.
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,"
judge quoted Kenneth Starr as saying,
"It is decidedly unchristian
to win at any cost," and added
that most lawyers agree with him.
"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,"
she claimed. "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?"
Do Not Bring 'Social Justice'
pernicious development within the
legal system is the misuse of lawsuits,
according to her.
see lawsuits wielded as weapons of
revenge," she says. "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."
said that employment litigation is
a particularly fertile field for this
kind of abuse.
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.
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.'"
wonders, "What social goal is
achieved by transferring millions
of dollars to the lawyers, while their
clients obtain coupons or token rebates."
judge quoted George Washington who
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?"
asked Jones, how can a system founded
on law survive if the administrators
of the law daily display their contempt
private morality has definite public
consequences," she said. "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."
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
have an inherent tendency to expand
their mandate," says Jones. "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
recommends three books by Philip Howard:
of Common Sense, The Collapse of the
Common Good and The
Lost Art of Drawing the Line,
which further delineate this problem.
third and most comprehensive threat
to the rule of law arises from contemporary
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,"
said Jones. "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
quoted Roger C. Cramton, a law professor
at Cornell University, who 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
'Great Awakening' In Law School Classrooms
judge said ruefully, "There has
been no Great Awakening in the law
school classroom since those words
were written." She maintained
that now it is even worse because
faith and democratic processes are
problem with legal philosophy today
is that it reflects all too well the
broader post-Enlightenment problem
of philosophy," Jones said. She
quoted Ernest Fortin, who 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."
said that all of these threats to
the rule of law have a common thread
running through them, and she quoted
Professor Harold Berman [[[One of
my favorites]]] to identify
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."
Jones concluded with another thought
from George Washington: "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."
taking questions from students, Judge
Jones recommended Michael Novak's
book, On Two
Wings: Humble Faith and Common Sense.
law is not a prescriptive way to solve
problems," Jones said. "It
is a way to look at life starting
with the Ten Commandments."
law provides "a framework for
government that permits human freedom,"
Jones said. "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,"
she said to the amusement of the students.
am an unabashed patriot - I think
the United States is the healthiest
society in the world at this point
in time," Jones said, although
she did concede that there were other
ways to accommodate the rule of law,
such as constitutional monarchy.
legal system is way out of kilter,"
she said. "The tort litigating
system is wreaking havoc. Look at
any trials that have been conducted
on TV. These lawyers are willing to
Nominee to Supreme Court
Edith Jones has been mentioned as
a potential nominee to the Supreme
Court in the Bush administration,
but does not relish the idea.
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?'
those circumstances, who is going
to go out to be a federal 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.
Federalist Society was founded in
1982 when a group of law students
from Harvard, Stanford, the University
of Chicago and Yale organized a symposium
on federalism at Yale Law School.
These students were unhappy with the
academic climate on their campuses
for some of the reasons outlined by
Judge Jones. The Federalist Society
was created to be a forum for a wider
range of legal viewpoints than they
were hearing in the course of their
the four schools mentioned above,
the Society has grown to include over
150 law school chapters. The Harvard
chapter, with over 250 members, is
one of the nation's largest and most
active. They seek to contribute to
civilized dialogue at the Law School
by providing a libertarian and conservative
voice on campus and by sponsoring
speeches and debates on a wide range
of legal and policy issues.
Federalist Society consists of libertarians
and conservatives interested in the
current state of the legal profession.
It is founded on three principles:
1) the state exists to preserve freedom,
2) the separation of governmental
powers is central to our Constitution
and 3) it is emphatically the province
and duty of the judiciary to state
what the law is, not what it should
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