Dean Kory LET’S LAY DOWN THE LAW by FRED RODELL Professor of Law, Yale University Written in 1939 “The first thing we do, let’s kill all the lawyers.” — William Shakespeare What is ever to be done about it? What is ever to be done about the fact that our business, our government, even our private lives, are supervised and run according to a scheme of contradictory and nonsensical principles built of inherently meaningless abstractions? What is to be done about the fact that we are all slaves to the hocus-pocus of The Law – and to those who practice the hocus-pocus, the lawyers? There is only one answer. The answer is to get rid of the lawyers and throw The Law with a capital L out of our system of laws. It is to do away entirely with both the magicians and their magic and run our civilization according to practical and comprehensible rules, dedicated to non-legal justice, to common-or-garden fairness that the ordinary man can understand, in the regulation of human affairs. It is not an easy nor a quick solution. It would take time and foresight and planning. But neither can it have been easy to get rid of the medicine men in tribal days. Nor to break the strangle-hold of the priests in the Middle Ages. Nor to overthrow feudalism when feudalism was the universal form of government. It is never easy to tear down a widely and deeply accepted set of superstitions about the management of men’s affairs. But it is always worth trying. And, given enough support, the effort will always succeed. You can fool some of the people all the time, etc. The difficulty lies only in convincing enough people that they are being fooled. Nor is this, in any sense, a plea for anarchy. It would not be necessary to do away with constitutions or statutes or with the orderly settlement of disputes and problems in order to do away with the lawyers and their Law. It would only be necessary to do away with the present manner of phrasing and later “interpreting” written laws, and with the present manner of settling disputes and solving problems. It would only be necessary to do away with all the legal language and all the legal principles which confuse instead of clarifying the real issues that arise between men. This is not a plea for anarchy. It is rather a plea for common sense. And the first step toward common sense is a realization that certainty and consistency, or any close approximation to them, is utterly impossible in the supervision of men’s affairs. It is in its refusal to recognize or accept this fact that The Law makes its gravest and most basic error. It preens itself as being both certain and consistent. It purports to have a sure answer ready-for-application to any factual problem or squabble that may arise. Yet even a cursory examination is enough to show that The Law’s alleged certainty and consistency lie entirely in the never-never land of abstract principles and precepts. The Law has been forced to retreat from the world of facts into its own world of fancy in order to maintain the pose that it is a precise and solid science. Moreover, it is in feigning certainty and consistency in its settlement of flesh-and-blood problems while striving desperately to keep up the illusion in the irrelevant realm of legal abstractions, that The Law has lost touch with justice unadorned. As mentioned before, justice can’t be cut up into convenient categories. And The Law, in reaching for certainty with one hand and justice with the other, has fallen between the two into a morass of meaningless and useless language. As though any actual dispute could be settled either certainly or justly by reference to the words “consideration is essential to a valid contract” or to the words “no state may constitutionally tax property outside its jurisdiction!” Since certainty and consistency are impossible of attainment in the orderly control of men’s affairs, the sensible thing to do would seem to be to go straight after justice in the settlement of any specific question that comes up for solution. Now justice itself is concededly an amorphous and uncertain ideal. One man’s justice is another man’s poison. But that is where written laws come in. Wherever different people’s different ideas about what is fair and what is right clash head-on, written laws, enacted by democratic processes, should contain, in so far as possible, the answer. Wherever written laws cannot or do not contain the answer, somebody has to make a decision. And that decision might better be made on grounds of plain, unvarnished justice, fairness, humanitarianism – amorphous though it be – than on any other. Today it is the lawyer-judges who make such decisions. Even when some part is taken by a jury – that last and waning vestige of recognition that the ordinary man’s ideas about justice are worth something – the jury has to act within the rigid framework of The Law and the judges’ orders. But the ordinary man knows as much about justice as does the ordinary judge. As a matter of fact, he usually knows more. For his ideas and ideals about human conduct are more simple and direct. They are not all cluttered up with a lot of ambiguous and unearthly principles nor impeded by the habit of expressing them in a foreign language. A training in The Law cannot make any man a better judge of justice, and it is all too likely to make him a worse one. But there is one kind of training, one kind of knowledge, that can fit a man to handle more ably and more fairly the solution of specific human problems. In any common-sense system, that kind of training and that kind of knowledge, instead of adeptness in the abstract abracadabra of The Law, would be a prerequisite to the right to sit in judgment on other men’s affairs. The kind of knowledge that could be really useful, that would really equip a man for the job of solving specific problems fairly, is technical factual knowledge about the activities out of which the problems arise. Not that such knowledge would impart a keener sense of justice. Rather that such knowledge would enable him to understand the problems themselves more clearly, more intimately, and more thoroughly, and therefore to apply his sense of justice to their solution in a more intelligent and more practical way. A mining engineer could handle a dispute centering around the value of a coal-mine much more intelligently and therefore more fairly than any judge, untrained in engineering, can handle it. A doctor could handle a dispute involving a physical injury much more intelligently and therefore more fairly than any judge, untrained in medicine, can handle it. A retain merchant could handle a business dispute between two other retail merchants much more intelligently and therefore more fairly than any judge can handle it. A man trained in tax administration could have handled Senior v. Braden much more intelligently and therefore more fairly than the Supreme Court handled it. In short, even discounting for the moment the encumbrances of legal doctrine that obstruct the straight-thinking processes of every judge, the average judge is sadly unequipped to deal intelligently with most of the problems that come before him. And why, after all, should not the orderly solution of our business and government and private difficulties – practical problems all – be entrusted to men who have been trained to understand the practical problems and to appreciate the difficulties? Why should we continue to submit our disputes and our affairs to men who have been trained only in ethereal concepts and abstract logic, and who persist in pursuing that will-o’-the-wisp, certainty? Why should we keep on sacrificing both justice and common sense on the altar of legal principles? Why not get rid of the lawyers and their Law? It would take, of course, a peaceful revolution in the system of rules under which we live. Constitutions, in part at least, would have to be rewritten, without benefit of lawyers. Why not? The machinery exists for ding it in an orderly and peaceful way. Where constitutional commands and prohibitions make sense to the average man, they could be kept unchanged. Anyone understands, for instance, what the federal constitution’s requirement of a census every ten years means. Where constitutional commands and prohibitions are completely incomprehensible except in the light of legal “interpretation,,” they should be clarified so that they do make sense or else omitted entirely. Why should the lawyers have a monopoly on the understanding of any part of any constitution? Statutes would all have to be redrafted too, again without benefit of lawyers. And that would be a tougher job, but by no means an insuperable one. The lawyers themselves have often done it with a whole body of written laws; they call it “codifying” the laws. There is no reason why a chosen group of non-lawyers should not codify the present laws of every state, and of the federal government as well, and codify them so that it no longer takes a lawyer to translate them into significance. Any law that means something definite and tangible in relation to human affairs can be written so that its meaning is plain for all to read. Any law that means nothing except as lawyer and lawyer-judges put content into its inherently content-less language has no business staying on the books. Furthermore, any law which, instead of laying down rules itself, turns over the solution of certain factual types of problems to a group of experts or administrators should say perfectly frankly what it is doing and should define in factual instead of legal language the field within which the experts are to make rules and decisions. Why conceal behind vague generalities the fact that the Securities and Exchange Commission has been given, within vague limits, the power to make rules for the running of the New York Stock Exchange? Why not make the granting of power simple and direct; and why not make the limits of the power specific instead of leaving their determination to the lawyer-judges’ subsequent and haphazard “interpretation” of the statute’s legal language? Similarly, any written law which, though laying down a broad rule, leaves to a court or some such deciding body the precise application of its rule to the fact of any particular problem should say that it is doing just that. “First degree murder is punishable by death” makes no real sense as a statute because “first degree murder” makes no sense except in relation to the abstract legal principles which are said to define it. “When a court (whether judge or jury or both or some other kind of deciding body) finds that one person has killed another person and believes that the killer deserves to be electrocuted, the court may order that he be electrocuted” is equally descriptive of the rule and much more accurate. Why not phrase the statute that way, so everyone would know just what it did mean? Then, if we should want the rule to be more precise, the written law could be made more precise – instead of pretending that the words “first degree murder” contribute toward preciseness or toward anything but obscureness and unintelligibility. For, of course, there would still have to be courts, or judges, or decision-makers, under any orderly system of social control, even though written laws were made intelligible to all. There would have to be decision-makers to determine the true facts behind any dispute, and then to apply to the dispute the terms of any written laws, whether those laws were so precise that their application was almost automatic, or whether they left room for the decision-makers to exercise their own discretion and their own sense of justice. There would have to be decision-makers, too, to settle any disputes which were not covered by written laws. And it is as decision-makers that men trained in the technicalities of factual problems, rather than in the technicalities of legal language, would come in. Suppose today a problem in the regulation of utility rates comes before a court of Law. The company will argue that its property is worth a great deal of money because the more money it is worth the higher rates it can charge, since it is allowed to make “a fair return on the reasonable value of its investment.” The utility commission, out to defend the rates it ordered the company to charge, will argue that the company’s property is worth considerably less than the company’s figure. Both the company and the commission will bring in engineers and accountants to testify about the value of the company’s property. The company’s experts will set a high figure and the commission’s experts will set a low figure. And the court, unable to understand or gauge intelligently the basis of either set of figures will, more than likely, split the difference and let it go at that. But why – if the commission, which is a government body just like any court, is not to have the last word in applying a written law entrusted to it for enforcement – should not the dispute at least be brought before a court of engineers or accountants or both who, unpaid by either side, could apply their technical knowledge to an examination of both sets of claims and an intelligent choice between them? Suppose today a man accused of a crime pleads before a court of Law that he is insane and, therefore, cannot be held responsible. The prosecuting attorney will produce psychiatrists who insist, and explain in medical terms why they insist, that the defendant is sane. The defendant’s attorney will produce psychiatrists who insist, and explain in medical terms why they insist, that the defendant is crazy. The court will listen uncomprehendingly to both sets of psychiatrists and will then go into a huddle with itself over the question whether the accused man can “understand the difference between right and wrong.” If he can, he is sane according to The Law, and if he can’t, he is sane according to The Law, no matter how ridiculous the basis of distinction may seem – and does seem – to any psychiatrist. But why should not the dispute be brought immediately before a court of psychiatrists, or before a single psychiatrist-judge, who, unpaid by either side, could apply technical knowledge to an examination of the defendant’s claim and make an intelligent decision as to its validity. Suppose today a complicated dispute over the internal management of a corporation comes before a court of Law for solution. Lawyers for both sides will defend their client’s actions and interests in elegant legal language. The court, in making its decision, will choose between two proffered sets of legal principles. Why legal language and legal principles? Why not considerations of business efficiency and business ethics? And why should not the dispute be brought before a court of men experienced in corporate management, who could apply their technical knowledge to an examination of the claims of both sides and to an intelligent and practical as well as fair solution of the difficulty? It is no answer to say that a lawyer-judge understands better than does an engineer or an accountant or a psychiatrist or a business executive the “other issues” involved in these cases, or in any other of a thousand types of cases that might be named. The only real issue ever involved in any case is the intelligent formulation of a fair decision to a factual problem, either within the framework of some relevant written law or, if necessary, without reference to any written law. The only understanding helpful in formulating such a decision, granted that the words of any relevant statute makes sense – and if they don’t they should be ignored – is a practical understanding of the problem involved. An engineer or an accountant or a psychiatrist or a business executive, remember, has just as keen and impartial a sense of justice where his own interests are not concerned as has any judge where his interests are not concerned. Moreover, if two or more kinds of specialized knowledge are pertinent to the settlement of any problem, why should not two or more kinds of technical experts compose the court which settles the problem? Why, in any case, should the real issues ever be obscured by the fake issues of The Law? In any common-sense system of social control, or government, the courts – the law-applying and decision-making bodies – would be built of men trained to an understanding of the different fields of human activity with which they were to deal. The exact mechanics of such a scheme could be worked out in any one of several ways. Perhaps permanent courts of experts in different fields of practical knowledge might be set up, each to handle all disputes and problems that centered around their own fields. Perhaps, instead of taking men permanently away from the work to which they had been trained and making specialized judges out of them, there might be panels of experts on call for part-time court service in the settlement of disputes involving their separate fields of knowledge. Perhaps – for any such scheme would have to include a central directing bureau to arrange for the hearing of each case before the right court – there might be central courts composed of a dozen different kinds of specialists: — an ex-business executive and an ex-doctor and an ex-labor leader and an ex-engineer and an ex-banker and an ex-farmer and an ex-public administrator and so forth. And each central court might assign the handling of every case that came along among its own members or among other specialists it had available for service, or among a relevant combination of the two. Perhaps each field of dispute might have its own central court and its own outside part-time judges. Thus a central criminal court might include an ex-penologist and an ex-financial expert and an ex-doctor and an ex-police official and a couple more, with a chemist and a psychiatrist and a ballistics expert, among others, on call to sit in certain cases where their special knowledge would be of help. Even the Supreme Court, composed of course of non-lawyers (and this, incidentally, would not even require an amendment to the Constitution which says not a word about the judges having to be lawyers) might well make use of outside specialists as part-time judges. And since most of the problems that come before the Supreme Court involve, and would probably continue to involve, practical problems in government, most of its members – as well as the members of any other courts devoted to handling such problems – would be men trained and qualified in the efficient and wise administration of government affairs. As a matter of fact, abolition of the lawyers and their Law might eventually lead to the virtual disappearance of courts as we know them today. Every written law – written, you remember, in comprehensible language – might be entrusted to a body of technical experts, to administer and apply it and make specific decisions under it. As the Interstate Commerce Commission applies the Interstate Commerce Act, as the Federal Trade Commission applies the Clayton Act, so each state would have, say, a Killing Commission to apply its laws about what are now called murder and manslaughter. Moreover, the decision of the technical experts who made up each commission would be final. There would be no appeals and super-appeals to other bodies of men who knew and understood less about the real matter in dispute than the original deciders. There would be a Supreme Court – or a Supreme Commission or such – to settle important inter-governmental or intra-governmental squabbles to which the written laws did not contain the ready answer. But just about all that would be left for courts, or something like our present courts, to handle would be disputes to which no written laws directly applied. And where no written laws directly applied, arbitration of the dispute by picked specialists in that field, or that business, would serve the ends of efficiency, justice, and also economy far better than a formal trial before any kind of court. If even the remote idea of the eventual disappearance of our courts has a shocking sound, it is only because of our blind faith that the mysterious processes of The Law do somehow work inexorably toward certain justice. Well, for the tenth time, they don’t. When the courts happen to produce justice it is as likely to be despite the irrelevant processes of The law as because of them. Nor, for all the legal legend, are judges infallible arbiters of right and wrong, fair and unfair. Judges are men, not gods. Moreover they are government servants, government employees. Why should not another group of men, another group of government employees, be equally able to decide what is fair and what is unfair? Why should not another group of men, given equal responsibility and trained to an understanding of complicated practical problems, be better able to decide what is fair and what is unfair, within the limits of an intelligible statute, than those who have been trained mainly in the manipulation of abstract principles? Why should not a commissioner’s word be as good as a judge’s word? True, the mechanics of any such system as has been suggested to replace the lawyer-judges would be complicated in the extreme. But no more complicated than the present confusing, overlapping, and wasteful hierarchy of trial courts and appellate courts, state courts and federal courts, courts of law and courts of equity, police courts and magistrate’s courts, common pleas courts and special claims courts, and all the rest, all of them manned by exalted lawyers. And if the whole idea of taking the settlement of our disputes and problems, in one fashion or another, out of the hands of the lawyer-judges sounds too fantastic, too far-fetched and unfeasible, a couple of little points are worth considering. For small steps in that direction have already been made in the field of government and also in the field of business. In the field of government, the growth of commissions and boards and all sorts of administrative bodies has served to deprive the courts of Law of some of the decision-making business that used to be theirs. Today, most new statutes are put in the charge of special decision-making agencies instead of being entrusted directly tot he courts for interpretation and application. It is true that today an appeal to a court can always be taken from any commission’s decision. But the commission really stands in the place of a trial court – and appeals are comparatively few. It is true, too, that these commissions are now usually manned in large part by lawyers. But even the lawyer-commissioners are coming, more and more, to be chosen for their familiarity with the practical problems with which the commission has to deal, rather than for their adeptness at The Law. At the least, it is a trend. In the field of business, the first halting step away from the lawyer-judges has been the growth of arbitration as a means of settling disputes. Arbitration means nothing more than the voluntary turning over of a dispute for fair settlement to a man or group of men, trusted by both sides and equipped by specialized knowledge to understand the question at issue. Lawyers are not necessary, either as arbitrators or as advisers, and experience has proved that their presence is all too likely to hold up and confuse the whole proceedings. They just can’t forget their abstract principles – nor their Pleading and Procedure – and get down to business. Most judges, incidentally, disapprove heartily of arbitration, and say so whenever they get a chance in a lawsuit, as when a contract provides for it. They well know in what direction arbitration, as a system, is heading. As a matter of fact – to go back for a minute to the possible mechanics of setting up substitutes for the present courts of Law – one scheme might be the tremendous extension of the arbitration device. Thus the two sides in what The Law would call a “civil suit” – an ordinary case not involving the government – might be required to pick their own expert or experts to settle their dispute for them, perhaps from among a qualified list of arbitrators in that field, or perhaps not. Certainly such a requirement would fit in perfectly with the complete abolition of courts as we know them, with the use of commissions or such to decide matters arising under written laws. For all disputes not covered by written laws could then be turned over to arbitration. At any rate, regardless of the exact details or mechanics, the important thing in any common sense system would be to get rid of the abracadabra of The Law as an alleged basis for the settlement of human and social problems. That would mean cleaning all the vague and essentially meaningless legal language out of constitutions and statutes. It would mean taking the settlement of specific disputes out of the hands of the lawyer-judges. And finally – or perhaps first of all – it would mean getting rid of the lawyers, as lawyers. Getting rid of the lawyers would mean no more legal counsel to talk for you before the courts or commissions or arbitrators or whatever bodies were given the job of handling specific problems in the orderly management of human affairs. People who got involved in disputes or got hauled up for alleged violation of some written law would have to tell their own stories and produce their own proof – in the form of written evidence or witnesses or whatever kind of proof was necessary and available. Companies would have to send to court a responsible company official, to talk facts and not Law. Why not – since the decision-makers would no longer be concerned with balancing abstract principles but only with applying justice, straight, to the problems before them? Not – despite what the lawyers will immediately howl –- would it be one whit harder to determine the true facts behind any dispute without the “help” of the lawyers and their principles of P. and P. As everybody knows, at least one of the lawyers in every case in which the facts are in dispute is out to hide or distort the truth or part of the truth, not to help the court discover it; and his is always able to use the accepted principles to help him do it. The notion that in a clash between two trained principle-wielders, one of whom is wearing the colors of inaccuracy and falsehood, the truth will always or usually prevail is in essence nothing but a hang-over from the medieval custom of trial by battle and is in essence equally absurd. Why not let the people really involved in any squabble tell, and try to prove to the satisfaction of the decision-makers, their own lies? Commissions have often found it far easier to discover the true facts behind any dispute by dispensing with the lawyers’ rule; arbitrators have found it easier still by dispensing with the lawyers. Getting rid of the lawyers altogether would also mean no more legal advice, for those who can now afford it, in the making of financial arrangements and the drafting of business documents. People and companies who made financial plans and business agreements would have to word them – or have them worded by non-Legal draftsmen – in intelligible language. Why not? Why should not a man who wants to leave his property to his wife at his death say in his will, “I want everything I own to go to my wife when I die,” instead of having to hire a lawyer and go through a long rigmarole of legal language? If the written law about wills says, for instance, that three other people have to sign a person’s will, to help prove later that he signed it, then let the written law be not only intelligible but as readily available as a guidebook or an article in an encyclopedia. And why should not two people or two companies or a company and a person, who want to enter into a business agreement, be both entitled and required to state in plain words just what each of them is promising to do or not to do? If constitutions and statutes were all written in ordinary English and if the lawyer-judges were ousted from their decision-making seats, the practicing lawyers would soon automatically disappear. There would be no more use and no more place for their magic. The practical men in charge of dispensing justice would neither understand nor be interested in the abstract principles of The Law. Legal language, thrown out of the new courtrooms or commission chambers, would serve no possible function in the wording of business documents. Neither as advisers out of court nor as representative in court would the lawyers be able to sell their special brand of verbal skill. Then too, the law schools would be forced to close their doors – or else to turn themselves into schools of practical government or business administration. The breeding of word-jugglers would come to an end. Yet it might be just as well to get rid of the lawyers directly, along with the lawyer-judges and the legal wording of written laws. At the least, they would have to be voted out of Congress and the state legislatures before it would be possible to redraft constitutions and statutes and set up a new decision making system. And if the lawyers, as lawyers, were abolished directly and immediately, then the other changes would go into effect more smoothly. How abolish the lawyers directly? Well, why not make the practice of law for money (or for anything else) a crime? The lawyers would of course insist that anything so unheard-of could only be done by amending the Constitution – but why not amend it? And incidentally, only a lawyer would quibble about what “the practice of law” meant. Absurd? Preposterous? Think it over for a minute. Suppose the nation were suddenly to wake up to the fact that all its affairs were being supervised and controlled according to the language and principles of astrology, by a smart bunch of astrologers. Would making the practice of astrology a crime seem absurd? Go back and read over again the solemn judgment of the Supreme Court of lawyers in the case of Senior v. Braden – or pick some other court opinion at random – and see where the absurdity lies. Or are we just to go quietly and unquestioningly and stupidly on, submitting the management of our entire civilization to the modern medicine men? The immediate answer is undoubtedly yes, but it need not be a permanent answer. And if any popular movement to get rid of the lawyers and their Law, and to put our system of social control on a common-sense basis, should ever make enough headway for the lawyers to have to face it instead of scoffing at it, their chief arguments against it – other than those already considered – would probably boil down to two. They would argue, in the first place, that even if the time-tested legal system, with all its principles and its precedents, were scrapped and another sort of system set up in its place, the new system would soon develop its principles and its precedents too, and even its special language. Now if the new system were put in the hands of lawyers, or of men trained and skilled principally in abstract logic, that would unquestionably be so. But it would not be so if the new system were entrusted – as it would be entrusted – to men trained and skilled in coping with practical human problems. And it would particularly not be so if those in charge of the new system were aware – as they would be aware – that there need be no pretense of preordained certainty and consistency about their decisions, taken in the mass, but rather a direct effort to deal intelligently and justly with each problem or dispute as it came along. Finally, the lawyers would argue that if The Law were scrapped and it became generally known that fallible men rather than infallible and impersonal abstract principles were dictating decisions which other men had to obey, then all respect for law-and-order would vanish, and revolution or anarchy or both would ensue. But in this argument – a typical magician’s argument in its conjuring up of frightful imaginary hobgoblins – is displayed a strange and contemptuous mistrust of the civilized tendencies of the nation. It implies that the whole structure of our society would automatically go to pieces if it were put on a practical rather than a mystical basis – an unwarranted assumption at best. Moreover, in this argument lies the crux of the whole fraud of The Law. For the average man’s respect, such as it is, for our present system of Law, and his consequent willingness to let his life be run in mysterious fashion by the lawyers, are indeed founded on the carefully nurtured legend that legal principles are just about infallible and that they produce, in the judges’ hands, something very close to certain justice. Which – to sum it all up in four words – they aren’t and don’t. It is a blind respect, born not of understanding but of fear. And the fear is built on ignorance. If only the average man could be led to see and know the cold truth about the lawyers and their Law. With the ignorance would go the fear. With the fear would go the respect. Then indeed – and doubtless in orderly fashion too – it would be: — Woe unto you, lawyers!
Posted on: Thu, 27 Nov 2014 10:37:44 +0000
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