American
Legal System Is Corrupt Beyond
Recognition, Judge Tells Harvard
Law School
By
Geraldine Hawkins
March 7, 2003
The
American legal system
has been corrupted almost
beyond recognition,
Judge Edith Jones of
the U.S. Court of Appeals
for the Fifth Circuit,
told the Federalist
Society of Harvard Law
School on February 28.
She
said that 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. |
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Judge
Edith H. Jones of the
U.S. Court of Appeals
for the Fifth Circuit
talks to members of Harvard
Law School's Fed-eralist
Society. Jones said that
the question of what is
mor-ally right is routinely
sacrificed to what is
politically expedient. |
"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," she told the
students.
"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,"
said Jones.
She 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.
"This
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.
"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."
According
to the judge, 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," 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.
"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,"
The judge
quoted Kenneth Starr as saying,
"It is decidedly unchristian
to win at any cost," and
added that 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," 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?"
Lawsuits
Do Not Bring 'Social Justice'
Another pernicious
development within the legal
system is the misuse of lawsuits,
according to her.
"We 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."
Jones said
that 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.'"
Jones wonders,
"What social goal is achieved
by transferring millions of
dollars to the lawyers, while
their clients obtain coupons
or token rebates."
The 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?"
Similarly,
asked Jones, 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," 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."
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,"
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 little recourse."
Jones recommends
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.
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,"
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
of law."
Jones 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 and idolatry."
No
'Great Awakening' In Law School
Classrooms
The 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 breaking down.
"The
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."
Jones said
that all of these threats to
the rule of law have a common
thread running through them,
and she quoted Professor Harold
Berman 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."
Judge 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."
Upon taking
questions from students, Judge
Jones recommended Michael Novak's
book, On
Two Wings: Humble Faith and
Common Sense.
"Natural
law is not a prescriptive way
to solve problems," Jones
said. "It is a way to look
at life starting with the Ten
Commandments."
Natural 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.
"I 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.
"Our
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 say anything."
Potential
Nominee to Supreme Court
Judge Edith
Jones has been mentioned as
a potential nominee to the Supreme
Court in the Bush administration,
but does not relish the idea.
"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?"
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.
The 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 studies.
From 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.
The 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 be. |