»  The Straggler, No. 37

November 7th, 2005

  Law's Grave Study


I do not know the forms of law; I do know law and reason, though I am no lawyer professed: but I know as much law as any gentleman in England.
                       — King Charles I, at his trial

Mr. and Mrs. Straggler went down to the local attorney's office last week to get our wills wrapped up, a thing we have been putting off for far too long. This was just as the Harriet Miers storm was breaking, so that I have been obliged to give some thought to the law at both ends, from the most commonplace personal services to the mighty nation-shaking lucubrations of the Supremes.

In re (see how I get into the spirit of the thing?) matters of law, I am of King Charles's party: "no lawyer professed," but still blithe in the confidence that I have sufficient understanding of jurisprudential principles to say intelligent things on the subject — at the very least, to distinguish between obviously good judgments and obviously bad ones. This is probably a delusion, but it is one so widespread that there is very little motivation to rid oneself of it. It is also a delusion much more easily fallen into in these United States, where the fundamental principles of law are helpfully written out in a Constitution brief and clear enough to be read through in a couple of hours. The law in England is more opaque and anonymous, the Constitution unwritten. Not one Englishman in twenty could name the current Lord Chancellor. Throw the Lord Chief Justice and the Master of the Rolls into the quiz, and you are down to one in a thousand.

When I first became aware of the existence of the law as an institution, it seemed to me that nothing could be more solid, more forbidding, more awe-inspiring. At the top were grave elderly gentlemen in breeches, robes, and horsehair wigs. They presided over courts stiff with ceremony, wherein other gents wearing lesser robes and smaller wigs addressed them as "My Lord," and each other as "My learned friend." Latin tags were flung around with wild abandon. (Whence the proverbial exchange, from the days of British rule in Ireland: "Mr. O'Connell, has your client never heard the expression sic utere tuo ut alienum non laedas?" — "M'Lud, in the remote fishing village in County Kerry where my client lives, they speak of little else.") When not conversing in Latin, lawyers tended to lapse into Norman French: mortmain, champerty, embracery, seisin. The whole business was as conservative as an institution can be, redolent of ancient rules and forms. It breathed tradition and precedent. Most awe-inspiring of all were the little black cap a judge donned when pronouncing sentence of death, and the form of words that followed: "The sentence of the court upon you is, that you be taken from this place to a lawful prison and thence to a place of execution and that you be hanged by the neck until you are dead …"

Even the lower circles of the legal world, down below the judges and barristers, were sufficiently forbidding. A trip to see one's solicitor (the person who, in England, mediates between layman and advocate, and performs small legal chores) required a smart turnout and a deferential manner. I vividly remember my own first such call. It was in the company of my father, I forget on what business, in my early teen years. The leading firm of solicitors in our little town belonged to a Jew named Max Engel. Towards Jews, my father had that odd ambivalence characteristic of the English working class (and also, if Tom Wolfe's novels can be relied on, of black New Yorkers). Though capable of an occasional, and very mild, anti-Semitic remark, Dad felt sure that the average Jew was much better equipped than the average Gentile to guide one through the tangles and thickets of the law, and was glad to avail himself of the services of Mr. Engel.

When admitted to Mr. Engel's office, I found it to be lined with whole walls-full of leather-bound gilt-stamped volumes, with all of which the proprietor was presumably, incredibly, familiar. Just at this time, or not long afterwards, I first read George Meredith's poem "Lucifer in Starlight":

Around the ancient track marched, rank on rank,
The army of unalterable law.

I thought I knew exactly what was meant, and understood Lucifer's dismay perfectly. There it was on Max Engel's bookshelves, rank on rank: the army of unalterable law.

With these early impressions of the solidity, gravity, and conservatism of the law, I was a little slow to understand that the law has become the great engine of the Left in our time: that clever young radicals are swarming everywhere to overthrow the habits and customs of centuries, to assert inalienable "rights" invented in some law-school dorm bull session in 1965, to bolster and expand the powers of government — especially the federal government — and to pursue those who, for one reason or other, have offended leftist sensibilities. A peek into any modern law-school syllabus shows the state of affairs. Here is all the gassy flapdoodle of postmodern epistemology: "critical race theory,"  "feminist jurisprudence"  and, of course, "queer legal theory." The law has proved all too alterable.

My eyes were opened by the plundering of the tobacco industry in the 1990s, culminating in the quarter-trillion-dollar Master Settlement Agreement of 1998. What, I wondered, in my King Charles the First naïvety, had happened to the ancient common-law doctrine of "assumption of risk," which asserts that a plaintiff may not recover for an injury to which he assents? I asked people who might know. The doctrine had, they told me, in more words or less (usually many, many more), become inconvenient to revenue-seeking politicians.

A friend who teaches law at a Southern university — a learned friend! — tells me that we have drifted far from the old principles of property rights, freedom of contract, and limited government on which our nation was built, and that our nation's legal system is approaching some great crisis. I don't doubt he is right. The ultimate remedy must be in the ballot-box. In the meantime, the most minimal requirement for appointment to our highest judicial positions ought to be, that the appointee cleaves strongly to those battered old principles, is aware of the looming crisis, and understands what is at stake. All other matters of opinion and belief are secondary.