Killing the lawyers

The first thing we do, let’s kill all the lawyers.

— Shakespeare, Henry VI, Part 2, Act 4, scene 2

In my last post, I mentioned how Donald Trump, for good or ill, might be emblematic of an American descent into Caesarism.

This descent, I should note, has rapidly accelerated under President Obama, a President whom I believe has repeatedly and flagrantly violated his oath of office, and who under any plain reading of the Constitution should have already been impeached and removed from the Presidency. Then again, I would say that, being a nasty right-winger and all.

To be fair, Obama was merely the latest exponent of a trend towards executive arrogance that stretches back to the LBJ/Nixon years. Crankier conservatives would push the start of the decline back even further, starting with — depending on the crankiness level of the person you talk to — the FDR administration; the adoption of the 19th amendment; the adoption of the 16th and 17th amendments; the Lincoln administration; the Andrew Jackson administration; the adoption of the Constitution to replace the Articles of Confederation; the Protestant Reformation; or the Great Schism of 1054. Certain ultra-orthodox Jews would probably add the founding of Christianity to that list. And while I don’t know of anybody alive today who would seriously defend the superiority of Roman paganism over Abrahamic monotheism, I imagine there are probably a few out there somewhere.

But that’s a whole ‘nother discussion. The idea of American Caesarism actually got me thinking about something else.

Over at Instapundit, Glenn Reynolds posts frequently about the continuing decline of the American legal profession. Law firms are closing, lawyers can’t find work, law schools are suffering enrollment declines — apparently it’s actually a hot topic in legal circles.

But why should that be? America has a larger population than ever before, and the population is even expanding — albeit only slightly. Furthermore, the Baby Boomers are entering their retirement years — a period when you’d think their need for legal services would increase.

Given all this, wouldn’t the demand for lawyers be on the upswing? Wouldn’t you think law would be a pretty hot field right now?

Doubtless some of the profession’s decline is attributable to the flattening, disruptive influence of the Internet — I think this is Professor Reynolds’ favored explanation. For many basic legal services, you can just go online to some place like legalzoom.com and pay a flat fee for some fill-in-the-blank forms. I imagine that this has probably cut severely into the kind of routine tasks that served as the bread and butter of many small practices.

But I’d like to suggest an alternate, possibly complementary explanation: The legal profession is hitting hard times because the rule of law — the notion of the law as an independent, objective authority for resolving disputes — is slowly slipping away.

To understand what I mean, let’s go back to first principles: Why do we have lawyers in the first place?

Believe it or not, lawyers were not invented by Satan as an instrument of torture. Something like the legal profession will actually arise spontaneously within any system where power is thought to be invested in an independent, objective source, such as a body of text or a jury composed of average citizens. Lawyers, or lawyer-like individuals, are people who are particularly skilled at dealing with this source of power, whether through spoken eloquence or close textual reasoning.

Because average people often lack the nitpicky reading comprehension or deft public speaking skills necessary for dealing effectively with the relevant authority, the public will eventually hit upon the idea of paying people who DO have these skills to make sure their cases are presented as fairly as possible. It’s out of this primitive form of advocacy that the entire legal profession arises. It’s unsurprising, then, that in a society which firmly respects the rule of law, lawyering should be such a respected, highly-compensated line of work: These are the people who can protect your interests and make sure that you are treated fairly.

Things are different, though, in a society where “the law” is more or less synonymous with the whims and desires of the powerful. A useful example is to consider the position of lawyers in autocratic societies. There are “lawyers” in Communist China, but you might note that you’ve probably never heard of a person achieving great wealth and fame in China through their work as a lawyer — there is no Chinese Atticus Finch, to say nothing of a Chinese Johnnie Cochran or Alan Dershowitz.

That’s because everybody in China understands that “lawyers” there have no power to deliver justice. Everything is determined entirely by your political connections. In such a society, a person who has the right connections does not need to concern themselves with pesky legal details — they merely announce their intentions, and the seas part for them. The “little guy,” on the other hand, has no hope: No matter how carefully he dots his “i’s” and crosses his “t’s,” legally speaking, there will always be some new barrier that will arise, some dusty, obscure rule or regulation that will magically appear to frustrate his plans. The only way to ensure favorable treatment in such a system is through bribes, favor-trading, or attaching yourself to a powerful patron whose words can get things done.

Does that sound familiar?

It may be that Americans sense, in some way they can’t quite define, that their society is heading in this direction, and the decline of the legal profession is a direct consequence of this. Who wants to pay exorbitant legal fees if lawyers cannot deliver what they promise? Isn’t it cheaper to just make a “contribution” to whoever is holding the whip? If it’s not an actual elected official with a campaign coffer, certainly it’s somebody with a “charity” or “foundation” that accepts checks. It’s not too hard to see a company making a rational calculation to cut back all of its spending on legal counsel to the bare minimum, plowing the savings into “contributions” to political campaigns or “foundations” attached to powerful patrons. If enough companies or individuals make those calculations, you’d expect the legal profession to take quite a big hit. The decline of the legal profession might thus be a leading indicator of what kind of society people expect in the near future.

Bringing things back to Trump, this also might explain the out-of-left-field success of the Trump candidacy: Trump is more or less explicitly promising to “get things done” based on his personal say-so, and not get bogged down in legal niceties. In my last post, I quoted Frederick the Great, who is supposed to have said “I begin by taking. I shall find scholars later to demonstrate my perfect right.” That is how things function in a society where the ruler, and not the law, is the final authority: Decisions get made, and the “lawyers,” such as they are, get paid to make up justifications after the fact.

Perhaps Trump is a symptom of this. Perhaps, by supporting Trump, voters are saying, “if we are to have a Caesar — and it appears we shall — let it be a Caesar who caters to us.”

Can you blame them?

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