On
the Value of the Law
August
14, 2022
I’m not a lawyer,
but I used to be one. I have a law degree. I practiced law for over twenty
years. Since I changed professions and resigned from the Bar I have continued
to write legal analyses on various issues. I haven’t practiced law for a while
now, but I know more about the law, both its gifts and its challenges, than
most Americans do. Most Americans, after all, are not and never have been
lawyers. A relative of mine recently told me that the law is bullshit. I think
he was referring only to one specific legal event, but still. He said the law
is bullshit. I certainly dealt with a lot of bullshit when I was practicing law—incompetent
judges, untrustworthy attorneys, uncooperative clients. It all goes with the
territory of being a lawyer. Many of us believe that today’s US Supreme Court
is dishing out a great deal of bullshit with its ideological, politically
reactionary decisions.
Yet the law is
not mostly bullshit. Indeed, most of the law is nothing like bullshit. It seems
to many without legal training or experience, or without even a good civics
class for that matter, that the law is more bullshit than it really is. A
foundational truth that few Americans seem to understand is that law is
indispensable for any collection of people to live together without violence
and chaos. The law is first and foremost a way to prevent and resolve disputes
between people peacefully rather than through force. That, after all, is why
law developed in the first place. That is why we preserve it and live under it
despite its complexity and at times apparent absurdity. It is something no
ordered society can live without. We could easily live without as many lawyers
as we have, but we cannot live without the law.
The law comes to
us in two basic ways. There are written laws, and there are oral laws. Ancient
humanity existed for a very long time before the rise of civilizations without formal
law, yet even they surely had rules by which they lived and violation of which
they punished. Though there were older legal codes in Mesopotamia, the oldest
comprehensive legal code we know of is the Code of Hammurabi. It was written
down around 1750 BCE. It takes its name from the king who issued it, King
Hammurabi of the First Dynasty of Babylon. The ancient Hebrews had (and the
Jewish faith still has) a code of laws called the Torah. It was written down no
later than the early fifth century BCE. One of Rome’s lasting gifts to the
western world was its code of laws. That code is still the basis of the law in
some European countries (and in the state of Louisiana). The United Kingdom has
a complex legal system. One of its chief characteristics is that most of it
isn’t written. It functions nonetheless. The Roman Catholic Church, modeled as
it is in so many ways on the Roman Empire, has a code called the canon law. The
law of the United States (with Louisiana as an exception, something I won’t
mention again) grew out of English law. It consists of written laws federal,
state, and local. It also contains laws not written in law codes but in the
case decisions of appellate courts both federal and state. It includes written
codes of counties and cities. It also comes in the form of codes of
administrative procedures both federal and state.
That’s where we
find our laws, but why do we have laws in the first place? Laws, after all,
regulate human behavior, and wouldn’t we prefer to have our behavior left up to
ourselves and not regulated by some agencies and sets of rules most of us don’
t know much about? Well, we might think that could be good, but it wouldn’t be.
In a complex society like that of the United States, relationships between
people and institutions are so complex that there would be chaos without law. Laws
facilitate people living together in an orderly way without fear of arbitrary
governmental actions. To illustrate how valuable law and government under the
rule of law is, lets look at a country that certainly had laws but that did not
consistently apply those laws. It will help us understand the value of the law
to look at what that country’s law and legal system did to the country’s
people.
The country to
which I refer is the late, unlamented Union of Soviet Socialist Republics. It
origins went back to the Bolshevik coup of November (October old style), 1917.
It was organized into and given its name in 1922. It ceased to exist on
December 25, 1991.[1] For
all of its existence it was a one party state ruled by what came to be called
the Communist Party of the Soviet Union. It had two institutions relevant to
our discussion. On the one hand it had real laws. On the other it always had a
security apparatus that operated as a foreign and domestic spy network. That
agency’s name changed over time, but we know it as the KGB, the initial letters
of the Russian words for Committee on State Security. The KGB was the primary
institution through which the Communist Party exerted its tight control over
all of the people of the country.
In my experience,
it surprises many Americans to learn that the Soviet Union had a system of
courts and both civil and criminal law, but of course it did. No country as
complex as the USSR was can do without them. Those laws and courts functioned
reasonable well nearly all of the time. The courts tried and convicted real
criminals. The courts resolved contract disputes and personal injury cases.
Most of the time there was nothing unique or remarkable about Soviet law and
the Soviet legal system.
That does not
mean, however, that the Soviet Union operated under the rule of law. It didn’t.
The reasons it didn’t were the Communist Party and its enforcement arm, the
KGB. The USSR was a one party dictatorship. The Communist Party controlled all
aspects of Soviet life. Except to a very limited extent the Russian Orthodox
Church, there were no nongovernmental organizations.[2]
As a totalitarian regime, the Soviet government and its one political party
always got what they wanted. That was as true in the field of law as it was in
any other area of activity in the country. The courts functioned reasonably
well until the KGB expressed an interest in the case. If the KGB wanted a
particular outcome in a particular case, the court would invariable provide
that outcome regardless of the facts or the law of the case.
The pervasive
presence of the KGB (sometimes overt, sometimes covert), and the people’s
knowledge that it was always present and always got what it wanted destroyed
the rule of law in the USSR. Because the KGB operated at will outside the law
the country’s people lived constantly in fear of the KGB and the Communist
Party that controlled it. I’ll give you one minor example of that fear from my
personal experience. I lived in Soviet Moscow for the 1975-1976 academic year
doing PhD dissertation research in Russian history. My late wife, our toddler
son, and I lived on the fifth floor of a dormitory wing reserved for western
students of the enormous Moscow State University building south of downtown
Moscow. We got to know a Russian student at the university who lived in a
different wing of the building. Once we invited him to come to our place,
consisting of a couple of very small rooms, for dinner. He immediately asked,
“What floor does Boris live on?” He didn’t have to tell us who Boris was. We
all knew that the was the KGB plant in the western students wing of the
dormitory. We told our friend that Boris lived on the seventh floor. So our
friend agreed to come. If we and Boris had lived on the same floor he would not
have come. The risk of Boris seeing him associating with Americans would have
been too high. And it was rather clear that this Russian student had some
connections in and protection from the Communist Party. He was still afraid of
the KGB. Our friend’s apprehension about encounters with Boris is just a minor
example of the way the Soviet people lived in fear of the authorities. They
knew the KGB could be brutal and that it often operated outside the law.
Everyone was afraid of drawing goo much attention from anyone working for the
KGB, and no one ever knew exactly who that was.
That little
example demonstrates the value of a legitimate legal system for any country.
Yes, laws are human creations, and the people of the legal system are fallible
human beings. There are bad laws. There are some incompetent and even bad
people working in the legal system, though mercifully in my experience not that
many of them. Still, unless a society lives under the rule of law, there is no
real security for anyone in the society. Everyone’s relationship with other
people and with the society’s institutions becomes a matter of chance or a
matter of the whim of powerful people. The rule of law doesn’t guarantee
everyone’s safety. No legal system can control all of the people all of the
time. Still, a society governed by law is far more orderly and secure than a
society left to the whim of some leader or even of some minor bureaucrat who
wants to flex their muscle. That’s why every human society has a legal system.
Some of those legal systems work better than others. Still, be thankful you
live in a country governed by law rather than in one that isn’t.
There is one
element of the rule of law that is of great importance in the United States
today. For the rule of law truly to be the rule of law, the law must apply to
everyone. Full stop. No exceptions. In a society that truly functions under the
rule of law, no one can be above the law, not even a president of the United
States. That’s the only way the rule of law can be fair. No one is beneath it.
Law applies to everyone. It protects everyone’s legal rights.[3]
Also, no one is above the law. The law holds everyone accountable. Richard
Nixon infamously said that if the president does it, it’s not illegal. He was
dead wrong about that. If anyone is above the law, wrongdoing will go
unpunished. Moreover, the people will lose faith in the law. Yet the law’s
proper functioning requires that the people to whom it applies trust it, have
faith in it. We see in our country that some people, perhaps many people, have
lost or are losing faith in the law because of how some police officers, the
courts, and the prisons treat Black people as though they were below the law. If
we want to trust and obey the law, we must insure that we correct those wrongs
and insure that the law applies to everyone equally.
The law often has
its own way of doing things. There are often rules and procedures that lay
people do not understand. People sometimes criticize the law not because there’s
really anything wrong with it but because they don’t understand it. A striking
example of this dynamic is the time Chief Justice Rehnquist of the US Supreme
Court said that innocence is no reason to reverse a conviction for murder. To
the lay mind that statement is nonsense. It doesn’t make sense to that lay
person, however, because she doesn’t understand the proper function of
appellate courts. They see an appeal as a new trial rather than as a review of
legal issues only that it actually is. It’s not surprising, then, that to many
people the law can appear to be bullshit.[4]
Yet on the whole
the law is not bullshit. Neither is concept of the rule of law. The rule of law
is out best, indeed probably our only, assurance of at least some peace and
order in our life together as a society. If you need proof of that statement,
please reconsider what I said above about Soviet law. Or learn about some other
situation in which the rule of law is missing, where a nation is ruled more by
the whim of some dictator or some controlling party. You’ll see what the rule
of law is designed to prevent. Perhaps you’ll become more grateful for the law
than you have been before.
Tragically, the
rule of law is under attack in the United States today. One man, Donald Trump,
is responsible for that potentially disastrous development. Former president
Donald Trump thinks he is above the law. Many of his actions betray that
conviction of his. He tried hard to reverse the result of a lawful election. When
any law enforcement agency takes any action against him, as when the FBI
executed a search warrant at his garish resort Mar-a-Lago, he and his minions,
including his Republican minions in Congress, scream political persecution. At
the very least Trump passively supported and very probably engaged actively in
a violent insurrection against the United States government. As president he
tried to make the Department of Justice his personal law firm, and to a limited
extent he succeeded. Not all of his supporters by any means are white
nationalist terrorists, but many of them are. He accepts and encourages the
support of radicalized people who are prepared to use violence to get what they
want. It is beyond comprehension how this man ever became president. If he ever
becomes president again the United States will quite probably no longer be a
country ruled by law.
I’m nearly 76
years old. I’ve lived through the debacle of the Nixon administration with its
war crimes in Vietnam, Cambodia, and Laos. I lived through the revelation of the
collection of criminal acts we call Watergate. I’ve experienced the Republican
Party under Reagan and the two presidents Bush reduce the federal government to
the handmaiden of the economic elite at the expense of all other Americans. I’ve
seen George W. Bush commit an illegal war of aggression in Iraq. Yet through
all those horrors I never thought that the rule of law in this country was in
serious peril. Today we cannot avoid the conclusion that it is. We are in
serious danger of losing the only thing that makes communal life possible for
us humans, the rule of law. May each and everyone of us do everything we can to
defeat Donald Trump and his lawless supporters. It’s the only way we can preserve
the rule of law our country so badly needs.
[1]
Because the Russian Orthodox Church uses the old Julian calendar, December 25
in the Gregorian calendar we use is not Christmas in Russia.
[2] The
Russian Orthodox Church was not officially an agency of the Soviet government,
but it did not oppose the Communist Party. It wouldn’t have survived if it had.
In fact, at least some of its priests were also or primarily KGB agents. But at
least the Church’s stated functions and aims were not those of the atheistic
Communist Party.
[3] I
know. In this country the law often does a lousy job of protecting everyone’s
legal rights. That the law falls short of what the theory says it should mean
does not make the theory wrong. It just means we have to work harder at making
the law more truly function the way it is supposed to function.
[4] I’ve
never been a judge, but if I were an appellate judge considering a murder case
and was convinced that the defendant was innocent, I’d find some legal hook on
which to hang a reversal of the judgment against them. Actually, real judges do
things like that all the time. I was taught that when doing an appeal, make the
court want to rule in your favor, then give it a legal hook on which to hang a
judgment in your favor.
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