Woe unto you, scribes and Pharisees, hypocrites! For ye compass sea and land to make one proselyte, and when he is made, ye make him twofold more the child of hell than yourselves.
– Matthew 23:15, KJV
Once upon a time, a law professor by the name of Fred Rodell wrote a legal treatise on nature of the law itself. Sure, he based the title of his treatise upon Luke 11:52, but I thought Matthew 23:15 better highlighted just how much those who are licensed to practice law are essentially a priest-class:
“In TRIBAL TIMES, there were the medicine-men. In the Middle Ages, there were the priests. Today there are the lawyers. For every age, a group of bright boys, learned in their trade and jealous of their learning, who blend technical competence with plain and fancy hocus-pocus to make themselves masters of their fellow men. For every age, a pseudo-intellectual autocracy, guarding the tricks of its trade from the uninitiated, and running, after its own pattern, the civilization of its day.”
I couldn’t have it said it better myself, but why should anybody give a flying crap about what the lawyers want? Rodell explains:
“Of all the specialized skills abroad in the world today, the average man knows least about the one that affects him most – about the thing that lawyers call The Law…[n]ormal human skepticism and curiosity seems to vanish entirely whenever the layman encounters The Law…[t]he legal trade, in short, is nothing but a high-class racket. It is a racket far more lucrative and more powerful and hence more dangerous than any of those minor and much-publicized rackets, such as ambulance-chasing or the regular defense of known criminals, which make up only a tiny part of the law business and against which the respectable members of the bar are always making speeches and taking action…[t]he legal racket knows no political or social limitations.”
Perhaps, some might say, that calling the whole of the legal profession a racket might be a stretch too far, especially if you consider Frédéric Bastiat’s thoughts on the matter. Sure, there are “legal” rackets that exist today, such as central banking and the military-industrial complex, but isn’t it within the proper domain of government to determine what the law actually says? Because, without government, who would make the laws? Wouldn’t claiming that “the law is a racket,” be almost the same as saying that government itself, by extension, is a racket, too?
Regarding constitutional law, Rodell had this to say:
“Those little laws, those statutes, are, to a lawyer, the least important and least respectable of three kinds of rules with which the lawyers deal. The other two kinds of rules are those that make up what lawyers call ‘the common law’ and those that make up ‘constitutional law.’ Now, the common law is actually closer to The Law with a capital L than any constitution or statute ever written. The common law is the set of rules that lawyers use to settle any dispute or problem to which no constitution or statute applies…[c]onstitutional law is something else again. A constitution, in this country at least, is halfway between The Law and an ordinary statute. Like a statute, it is phrased by men, a few of whom are usually not lawyers, and is written down in definite if often nebulous-meaning words… [b]ut like The Law, constitutions, except where they deal with the pure mechanics of government…are made up of abstract principles which mean nothing until brought down to earth by the lawyers.”
If what Rodell says about constitutional law is true, then it would seem to be the case that whatever “The Law” appears to be is pretty important, since he says it is higher than any constitution ever written:
“The Law is this superior to constitutions, just as it is superior to statutes. And according to the legal legend, it is neither constitutions nor statutes which finally determine the rules under which men live. It is The Law, working unimpeded to produce the common law, working through the words of constitutions to produce constitutional law, working through the words of both statutes and constitutions to produce statutory law. All three kings of law are merely obedient offspring of that great body of abstract principles which never changes and which nobody but a lawyer even pretends to understand.”
At this point, constitutionalists need to make a decision as to whether they think their entire political ideology is based on sound principles, or whether it was invented out of whole cloth by a bunch of idiots (I already know what Lysander Spooner and the Anti-Federalists have to say, so let’s skip their rhetoric and just continue on, shall we?):
“So runs in brief the story of how Constitutional Law, the Highest Law of the Land, is laid down by the Supreme Court of the Land. Here is The Law at its best; here are the lawyers at their most distinguished, their most powerful. Still comparing piles of abstract, indecisive, and largely irrelevant principles as though they were matching pennies on a street corner. Still draping in the longiloquent language of a generalized logic the answers – some good, some bad – to specific social problems. And purposing all the while to be applying the commands and prohibitions of the U.S. Constitution. No wonder Charles Evans Hughes, long before he became the Supreme Court’s Chief Justice, once blurted out with a bluntness that is rare in lawyers – ‘We are under a Constitution, but the Constitution is what the judges say it is.’ ”
This strikes me as a rather pro-“Second Constitution” stance to take, considering also that Hughes’ quote was attributed to a speech he gave in 1907 before the Chamber of Commerce in Elmira, New York (approximately 31 years before the Ashwander doctrine was pronounced).
Why does commonplace skepticism vanish when it comes to legalities? Might be due to all of the intimidating legalese so ubiquitous in legal documents and court proceedings? As Rodell put it:
“The lawyers have made such a complicated mess out of the word-game they call legal reasoning that any effort to dissect even a tiny part of that reasoning and show it up for the fake that it is, inevitably makes tough going. In a sense, that fact has been the intellectual Maginot Line of The Law. Plenty of people have long suspected that the lawyers with their long words were indulging in nothing more nor less than wholesale flimflam, but when it comes down to trying to take that flimflam, with all its myriad trappings, apart, people just can’t be bothered. And even a personally conducted tour through the mirror mazes of legal logic becomes tiring and confusing.”
In case you haven’t figured it out yet, this is exactly why I use their own law dictionaries whenever I want to learn what all the possible combinations are of the meanings in the words they are using:
“Yet, it is precisely out of the constant and careless use of a loose craft lingo that the lawyers’ blind faith in the sacredness of words has grown. Meticulously trained in the mumbo-jumbo of legal concepts, subjected to it every minute of their working lives, the law boys passionately believe in the words they have learned to use…[d]ealing in words is a dangerous business, and it cannot be too often stressed that what The Law deals in is in words. Dealing in long, vague, fuzzy-meaning words is even more dangerous business, and most of the words The Law deals in are long and vague and fuzzy. Making a habit of applying long, vague, fuzzy, general words to specific things and facts is perhaps the most dangerous of all, and The Law does that, too. You can call a cow a quadruped mammal if you want to; you can also call a cat a quadruped mammal. But if you get into the habit of calling both cows and cats quadruped mammals, it becomes all too easy to slip into a line of reasoning whereby, since cats are quadruped mammals and cats have kittens and cows are also quadruped mammals, therefore cows have kittens too.”
Gee, I wonder why all the licensed practitioners of this trade would deliberately use unnecessary verbiage? Surely, it can’t be because they have ulterior motives, can it? Rodell explicates:
“The answer is, of course, that the chief function which legal language performs is not to convey ideas clearly but rather to conceal the confusion and vagueness and emptiness of legal thinking that the difficulties which beset any non-lawyer who tries to make sense out of The Law seem to stem from the language itself instead of from the ideas – or lack of ideas – behind it. It is the big unfamiliar words and the long looping sentences that turn the trick. Spoken or written with a straight face, as they always are, they give an appearance of deep and serious thought regardless of the fact that they may be, in essence, utterly meaningless.”
I knew it! The prolific use of legalese is meant to hide the truth of what these bar attorneys are doing:
“Anyway, that is why, in the last analysis, the language of The Law is inherently meaningless. It purports on the one hand to tie up in a general way with specific fact situations. It purports on the other hand to tie up in a general way to the great abstraction, ‘justice.’ Yet, in trying to bridge the gap between the facts and the abstraction, so that ‘justice’ may be ‘scientifically’ and almost automatically applied to practical problems, The Law has only succeeded in developing a liturgy of principles too far removed from the facts to have any meaning in relation to the facts and too far removed from the abstraction to make any sense in terms of ‘justice.’ ”
The reason why it is hard for most people to understand a legislative statute, an administrative regulation, or even a judicial opinion is because they are not supposed to; it is expected by the bar attorneys that the public will seek them out for their “interpretative services” in handling just about any conceivable everyday occurrence. You see, the very purpose of legalese is to make you dependent upon the bar attorneys; for, on the one hand, ignorantia juris non excusat, but then on the other, you must be licensed to practice law. How can you become knowledgeable about the law without being accused of practicing it?
Law schools, as I’ve written about before, are the premier breeding ground for the bar attorneys. On this point, Rodell says:
“As every good fascist knows, the perpetuation of the fascist fraud depends, in the long run, on the training of fledglings in the faith. The dictators catch their conscripts young and discipline them to think in goose-step. Promises of reward for the faithful and ominous warnings about the dangers of nonconformity play their part in making apprentices firmly believe a mass of lies, half-lies, and nonsense. Doubt, even the tiniest wondering doubt, is the cardinal sin. There are few heretics. The Law cannot catch its communicants so young. But the same mental goose step and the same kind of hopes and fears are used, perhaps not so purposefully but just as efficaciously, to instill a fighting belief in the nonsense of The Law. And of course it is on the rigid training of apprentices in the art that the perpetuation of the legal legend depends.”
Right there is prima facie evidence that law students are nothing more than acolytes being groomed to become the next generation of priests. Rodell also points out the Achilles’ heel of law schools:
“Moreover, the attempt to tie together the real problems that lie behind all law cases and the abstract principles on which decisions in law cases are said to be based usually results in one of two things. For the less intellectually sturdy, the result will be utter confusion. They will neither understand the problems nor learn the principles. But for the brighter boys, the result will likely be a realization that the problems and the principles have very little in common. From that realization, it is but a short step to a sort of unformulated contempt for The Law and its principles. And if legal neophytes should ever begin to realize, en masse, that legal principles are largely constructed of long words and irrelevant abstractions, it would be the beginning of the end of the legal legend.”
Perhaps Rodell is correct on this point, but you must remember, the only reason any of these “legal neophytes” take their course of study seriously is because they are trying to earn their law license, so they can make their living practicing the law. That’s it – it’s just business. It’s the rest of us libertarians who take their coercive interference into our own lives so damn personally. I say this not to insult anyone who partakes in any form of civil disobedience (or who has otherwise been profiled and targeted), but merely to point out the incentives of those who make up the prosecutors, judges, and even defense attorneys. Interestingly enough, Rodell has this apt observation on those who survive law schools:
“Those comparatively few law schools who do learn to recognize the great gap between worldly problems and legal principles – and who do not later fall prey to the propaganda of the trade they are practicing and forget all they once knew – can become extremely useful citizens. They have been trained to look at every legal problem as what it really is – a practical problem in the adjustment of men’s affairs. They have been taught how to throw aside the entangling trappings of legal language in seeking a fair and reasonable and workable solution; and then, having found such a solution, how to wrap it up again in respectable legal clothes and work for it in terms of principles of Law. In short, they have learned how to treat the whole of The Law as a technique, as a means to an end, as Pleading and Procedure. And, more than that, they have learned something woefully rare among the modern medicine men. They have learned to concentrate on the end, which is the practical solution of a human problem, instead of on the means, which is The Law.”
In a sense, one could infer from Rodell’s comments here that he is suggesting anyone who has had a legal education, yet doesn’t hold legalese as sacrosanct, are valuable assets to the cause of liberty, in that they would essentially function, according to Claire Wolfe’s “Freedom Outlaw” typology, as a mole, of sorts. Of course, if the law schools weren’t accredited solely by the American Bar Association, or if reading law was the norm and not the exception in modern legal education, or even if there wasn’t a license required to practice law, then it would be fair to say that neither the government nor any private special interest possessed a monopoly on the law because the barriers to entry would not be artificially high enough to deter potential competition for market demand. Sadly, such is not the case here.
Aren’t lawyers an indispensable occupation within American society, deserving of a living for all of their service? By consulting Rodell, we find that:
“The Law not only can be bought…but most of the time it has to be bought. And since it has to be bought, its results tend to favor those who can afford to buy it…the fact that The Law is constantly for sale, and generally to the highest bidder, ties right into the fact that The Law as a whole is a fraud. For The Law could not be bought and it would not favor those who can afford to buy it if the vaunted principles of which it is fashioned really were the ready keys to certainty and justice which the lawyers claim them to be. It is because those principles are so many and so meaningless…that The Law does not produce justice…The Law is bought, to put the answer bluntly and briefly right at the start, by hiring the services and the advice of the smartest lawyers, of the professional soothsayers who are most adept at manipulating the principles of which The Law is made…[t]he bulk of the business of the courts is given over to what the lawyers call ‘civil’ suits, in which one person sues another person or one company sues another company, usually over some financial or business squabble. In these cases, just as in criminal cases…the most money buys the best legal assistance. And the better your legal assistance, the better your chance of ending up with The Law in your favor.”
So, by the very fact that “The Law” is automatically biased against those who cannot afford to pay for the services of an attorney is evidence that “The Law” cannot satisfy the demands of justice. Rodell continues:
“Most of the business that lawyers handle and live on is made up of matters that never get near a courtroom. Most of the business the lawyers handle and live on is made of what is called legal advice, usually about financial matters, that is tendered, at a price, to those men and those companies that feel it will be well worth-while to get The Law safely on their side before they embark on any money-making or money-savings deals of any kind. Any legal advice amounts, for the most part, to casting spells of legal language over the wording of business documents so that the documents, if they ever should be dragged into court, will show that, regardless of where non-legal justice may seem to lie, The Law is pretty clearly on the side that bought the legal advice.”
Ah, so there’s the reason for the licensure in the first place! The bar associations wanted to entrench their profession by way of government law so as to centralize market demand towards themselves and away from any potential competitors who chose not to become licensed or otherwise members of any bar association.
In light of the many and sundry problems endemic to the legal profession, what, if any, solutions does Rodell have to offer? He says:
“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.”
Assuming that is the goal, then how would one begin such a monumental effort? Rodell says:
“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.”
“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 doing 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?”
No kidding, and with the ranks of the constitutionalists swelling up by the month (especially in the aftermath of the Cattle Unrustling), I don’t think that trend is going to taper off anytime soon. However, one of Rodell’s suggestions did concern me quite a bit:
“In the field of government, the growth of commissions and boards of all sorts of administrative bodies have 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 charge of special decision-making agencies instead of being entrusted directly to the 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 adeptness at The Law. At least it is a trend.”
As you could probably no doubt infer, this treatise was written back in 1939, seven years before the Administrative Procedures Act was passed by the United States Congress, which effectively created the fourth branch of government, the Administrative Agencies. I fail to see how one group of lawyers (the Congress) expanding beyond the limits of the United States Constitution is going to reign in the lawyers collectively, much less oust them. Alternatively, I was pleasantly surprised when I noticed this gem:
“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.”
This is essentially the idea behind the dispute resolution organization concept. Some anarchists champion this type of private (non-corporate) business as the effective replacement for government, because they see these DROs as breaking up the monopoly in the production of arbitration services by offering them for sale according to market demand. Although some critics would point out that this is little different from our current situation with monopoly government law, I would prefer that entrepreneurs to not be criminalized for attempting to provide such a valuable service that necessarily competes for a share of this growing market demand.
Fred Rodell’s Woe Unto You, Lawyers! is quite an eye-opening expose into what I had long-suspected, but had never proven – that the so-called “law” is now a racket, and has been so for quite some time (how long it has been a racket, I honestly cannot say, for I would like to think that at some point in the distant past, justice could be found, even if only occasionally, in the courts of our forefathers). As Rodell concludes his treatise:
“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!”
Woe unto them, indeed, for who else but the bar attorneys are but the chief beneficiaries of statism? They make the laws, issue orders to the cops, and reap in unseemly profits all thanks to their licensed monopoly. Might it finally be time, that now their profession has been identified as being antithetical to human liberty, to throw off those who proclaim themselves to be our rulers?