CHAPTER I** (lawyers)** The MODERN MEDICINE-MEN "The law is a sort of hocus-pocu
- CHAPTER I** (lawyers)** The MODERN MEDICINE-MEN
"The law is a sort of hocus-pocus science." Charles Macklin
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.
It is the lawyers who run our civilization for us – our governments, our
business, our private lives. Most legislators are lawyers; they make our laws.
Most presidents, governors, commissioners, along with their advisers and
brain-trusters are lawyers; they administer our laws. All the judges are lawyers;
they interpret and enforce our laws. There is no separation of powers where
the lawyers are concerned. There is only a concentration of all government
power – in the lawyers. As the schoolboy put it, ours is "a government of
lawyers, not of men."
It is not the businessmen, no matter how big, who run our economic world.
Again it is the lawyers, the lawyers who "advise" and direct every time a
company is formed, every time a bond or a share of stock is issued, almost every
time material is to be bought or goods to be sold, every time a deal is made.
The whole elaborate structure of industry and finance is a lawyer-made house.
We all live in it, but the lawyers run it.
And in our private lives, we cannot buy a home or rent an apartment, we
cannot get married or try to get divorced, we cannot die and leave our property
to our children without calling on the lawyers to guide us. To guide us,
incidentally, through a maze of confusing gestures and formalities that lawyers
Objection may be raised immediately that there is nothing strange or wrong
about this. If we did not carry on our government and business and private
activities in accordance with reasoned rules of some sort we would have chaos,
or else a reversion to brute force as the arbiter of men’s affairs. True –
but beside the point. The point is that it is the lawyers who make our rules
and a whole civilization that follows them, or disregards them at its peril.
Yet the tremendous majority of the men who make up that civilization, are not
lawyers, pay little heed to how and why the rules are made. They do not ask,
they scarcely seem to care, which rules are good and which are bad, which are
a help and which a nuisance, which are useful to society and which are useful
only to the lawyers. They shut their eyes and leave to the lawyers the
running of a large part of their lives.
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. A man who will discourse at length about the latest cure for
streptococci infection or describe in detail his allergic symptoms cannot begin
to tell you what happened to him legally – and plenty did – when he got
married. A man who would not dream of buying a car without an intricate and
illustrated description of its mechanical workings will sign a lease without
knowing what more than four of its forty-four clauses mean or why they are there.
A man who will not hesitate to criticize or disagree with a trained economist
or an expert in any one of a dozen fields of learning will follow,
unquestioning and meek, whatever advice his lawyer gives him. Normal human skepticism
and curiosity seem to vanish entirely whenever the layman encounters The Law.
There are several reasons for this mass submission, One is the average man’s
fear of the unknown – and of policemen. The law combines the threat of both.
A non-lawyer confronted by The Law is like a child faced by a pitch-dark
room. Merciless judges lurk there, ready to jump out at him. ("Ignorance of the
law is no defense.") Cowed and, perforce, trusting, he takes his lawyer’s
hand, not knowing what false step he might make unguided, nor what punishment
might then lie in wait for him. He does not dare display either skepticism or
disrespect when he feels that the solemn voice of the lawyer, telling him what
he must or may not do, is backed by all the mighty and mysterious forces of
law-and-order from the Supreme Court on down on the cop on the corner.
Then, too, every lawyer is just about the same as every other lawyer. At
least he has the same thing to sell, even though it comes in slightly different
models and at varying prices. The thing he has to sell is The Law. And it is
as useless to run from one lawyer to another in the hope of finding something
better or something different or something that makes more common sense as
it would be useless to run from one Ford dealer to another if there were no
Chevrolets or Plymouths or even bicycles on the market. There is no brand
competition or product competition in the lawyers’ trade. The customer has to take
The Law or nothing. And if the customer should want to know a little more
about what he’s buying – buying in direct fees or indirect fees or taxes – the
lawyers need have no fear of losing business or someone else if they just
plain refuse to tell.
Yet lawyers can and often do talk about their product without telling
anything about it at all. And that fact involves one of the chief reasons for the
non-lawyer’s persistent ignorance about The Law. Briefly, The Law is carried
on in a foreign language. Not that it deals, as do medicine and mechanical
engineering, with physical phenomena and instruments which need special words to
describe them simply because there are no other words. On the contrary, law
deals almost exclusively with the ordinary facts and occurrences of everyday
business and government and living. But it deals with them in a jargon which
completely baffles and befoozles the ordinary literate man, who has no legal
training to serve him as a trot.
Some of the language of the law is built out of Latin or French words, or
out of old English words which, but for the law, would long ago have fallen
into disuse. A common street brawl means nothing to a lawyer until it has been
translated into a "felony," a "misdemeanor," or a "tort"; and any of those
words, when used by a lawyer, may mean nothing more than a common street brawl.
Much of the language of the law is built out of perfectly respectable English
words which have been given a queer and different and exclusively legal
meaning. When a lawyer speaks, for instance, of "consideration" he is definitely
not referring to kindness. All of the language of the law is such, as Mr.
Dooley once put it, that a statute which reads like a stone wall to the lawman
becomes, for the corporation lawyer, a triumphal arch. It is, in short, a
language that nobody but a lawyer understands. Or could understand -–if we are to
take the lawyers’ word for it.
For one of the most revealing things about the lawyers’ trade is the
unanimous inability or unwillingness, or both, on the part of the lawyers to explain
their brand of professional pig Latin to men who are not lawyers. A doctor
can and will tell you what a metatarsus is and where it is and why it is there
and, if necessary, what is wrong with it. A patient electrician can explain,
to the satisfaction of a medium-grade mentality, how a dynamo works. But try
to pin down a lawyer, any lawyer, on "jurisdiction" or "proximate cause" or
"equitable title" --- words which he tosses off with authority and apparent
familiarity and which are part of his regular stock in trade. If he does not
dismiss your question summarily with "You’re not a lawyer’ you wouldn’t
understand," he will disappear into a cloud of legal jargon, perhaps descending
occasionally to the level of a non-legal abstraction or to the scarcely more
satisfactory explanation that something is so because The Law says that it is
so. That is where you are supposed to say, "I see."
It is this fact more than any other – the fact that lawyers can’t or won’t
tell what they are about in ordinary English – that is responsible for the
hopelessness of the non-lawyer in trying to cope with or understand the
so-called science of law. For the lawyers’ trade is a trade built entirely on words.
And so long as the lawyers carefully keep to themselves the key to what
those words mean, the only way the average man can find out what is going on is
to become a lawyer, or at least to study law, himself. All of which makes it
very nice – and very secure – for the lawyers.
Of course any lawyer will bristle, or snort with derision, at the idea that
what he deals in is words. He deals, he will tell you, in propositions,
concepts, fundamental principles – in short, in ideas. The reason a non-lawyer
gets lost in The Law is that his mind has not been trained to think logically
about abstractions, whereas the lawyer’s mind has been so trained. Hence the
lawyer can leap lightly and logically from one abstraction to another, or
narrow down a general proposition to apply to a particular case, with an agility
that leaves the non-lawyer bewildered and behind. It is a pretty little
Yet it is not necessary to go into semantics to show that it is a very silly
little picture. No matter what lawyers deal in, the thing they deal with is
exclusively the stuff of living. When a government wants to collect money and
a rich man does not want to pay it, when a company wants to fire a worker
and the worker wants to keep his job, when an automobile driver runs down a
pedestrian and the pedestrian says it was the driver’s fault and the driver says
it wasn’t – these things are living facts, not airy abstractions. And the
only thing that matters about the law is the way it handles these facts and a
million others. The point is that legal abstractions mean nothing at all until
they are brought down to earth. Once brought down to earth, once applied to
physical facts, the abstractions become nothing but words – words by which
lawyers describe, and justify, the things that lawyers do. Lawyers would always
like to believe that the principles they say they work with are something
more than a complicated way of talking about simple, tangible, non-legal
matters; but they are not. Thus the late Justice Holmes was practically a traitor
to his trade when he said, as he did say, "General propositions do not decide
To dismiss the abstract principles of The Law as being no more, in reality,
than hig-sounding combinations of words may, in one sense, be a trifle
confusing. Law in action does, after all, amount to the application of rules to
human conduct; and rules may be said to be, inevitably, abstractions themselves.
But there is a difference and a big one. "Anyone who pits on this platform
will be fined five dollars" is a rule and, in a sense, an abstraction; yet it
is easily understood, it needs no lawyer to interpret it, and it applies
simply and directly to a specific factual thing. But "Anyone who willfully and
maliciously spits on this platform will be fined five dollars" is an abstraction
of an entirely different color. The Law has sneaked into the rule in the
words "willfully and maliciously." Those words have no real meaning outside of
lawyers’ minds until someone who spits on the platform is or is not fined five
dollars – and they have none afterward until someone else spits on the
platform and does or does not get fined.
The whole of The Law – its concepts, its principles, its propositions – is
made up of "willfullys" and "maliciouslys," of words that cannot possibly be
pinned down to a precise meaning and that are, in the last analysis, no more
than words. As a matter of fact, the bulk of The Law is made up of words with
far less apparent relation to reality than "willfully" or "maliciously." And
you can look through every bit of The Law – criminal law, business law,
government law, family law – without finding a single rule that makes as much
simple sense as "Anyone who spits on this platform will be fined five dollars."
That, of course, is why a non-lawyer can never make rhyme or reason out of a
lawyer’s attempted explanation of the way The Law works. The non-lawyer
wants the whole business brought down to earth. The lawyer cannot bring it down
to earth without, in so doing, leaving The Law entirely out of it. To say that
Wagner Labor Act was held valid because five out of the nine judges on the
Supreme Court approved of it personally, or because they thought it wiser
policy to uphold it than to risk further presidential agitation for a change in
the membership of the Court – to say this is certainly not to explain The Law
of the case. Yet to say this makes a great deal more sense to the layman and
comes a great deal closer to the truth than does the legal explanation that
the Act was held valid because it constituted a proper exercise of Congress’
power to regulate interstate commerce. You can probe the words of that legal
explanation to their depths and bolster them with other legal propositions
dating back one hundred and fifty years and they will still mean, for all
practical purposes, exactly nothing.
There is no more pointed demonstration of the chasm between ordinary human
thinking and the mental processes of the lawyer than in the almost universal
reaction of law students when they first encounter The Law. They come to law
school a normally intelligent, normally curious, normally receptive group. Day
in and day out they are subjected to the legal lingo of judges, textbook
writers, professors – those learned in The Law. But for months none of it
clicks; there seems to be nothing to take hold of. These students cannot find
anywhere in their past knowledge or experience a hook on which to hang all this
strange talk of "mens rea" and "fee simple" and "due process" and other
unearthly things. Long and involved explanations in lectures and lawbooks only make
it all more confusing. The students know that law eventually deals with
extremely practical matters like buying land and selling stock and putting thieves
in jail. But all that they read and hear seems to stem not only from a
foreign language but from a strange and foreign way of thinking.
Eventually their confusion founded though it is in stubborn and healthy
skepticism is worn down. Eventually they succumb to the barrage of principles and
concepts and all the metaphysical refinements that go with them. And once
they have learned to talk the jargon, once they have forgotten their recent
insistence on matters-of-factness, once they have begun to glory in their own
agility at that mental hocus-pocus that had them befuddled a short while ago,
then they have become, in the most important sense, lawyers. Now they, too,
have joined the select circle of those who can weave a complicated intellectual
riddle out of something so mundane as a strike or an automobile accident. Now
it will be hard if not impossible ever to bring them back tot hat
disarmingly direct way of thinking about the problems of people and society which they
used to share with the average man before they fell in with the lawyers and
swallowed The Law.
Learning the lawyers’ talk and the lawyers’ way of thinking – learning to
discuss the pros and cons of, say, pure food laws in terms of "affectation
with a public contract" – is very much like learning to work cryptograms or play
bridge. It requires concentration and memory and some analytic ability, and
for those who become proficient it can be a stimulating intellectual game.
Yet those who work cryptograms or play bridge never pretend that their mental
efforts, however difficult and involved, have any significance beyond the game
they are playing. Whereas those who play the legal game not only pretend but
insist that their intricate ratiocination’s in the realm of pure thought
have a necessary relation to the solution of practical problems. It is through
the medium of their weird and wordy mental gymnastics that the lawyers lay
down the rules under which we live. And it is only because the average man
cannot play their game, and so cannot see for himself how intrinsically
empty-of-meaning their playthings are, that the lawyers continue to get away with it.
The 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. A John W. Davis, when he exhorts a court in the
name of God and Justice and the Constitution – and, incidentally, for a fee –
not to let the federal government regulate holding companies, is playing the
racket for all it is worth. So is a Justice Sutherland when he solemnly
forbids a state to impose an inheritance tax on the ground that the transfer – an
abstraction – of the right to get dividends – another abstraction – did not
take place geographically inside the taxing state. And so, for that matter,
are all the Corcorans and Cohens and Thurman Arnolds and the rest, whose chief
value to the New Deal lies not in their political views nor even in their
administrative ability but rather in their adeptness at manipulating the words
of The Law so as to make things sound perfectly proper which other lawyers,
by manipulating different words in a different way, maintain are terribly
improper. The legal racket knows no political or social limitations.
Furthermore, the lawyers – or at least 99 44/100 per cent of them – are not
even aware that they are indulging in a racket, and would be shocked at the
very mention of the idea. Once bitten by the legal bug, they lose all sense
of perspective about what they are doing and how they are doing it. Like the
medicine men of tribal times and the priests of the Middle Ages they actually
believe in their own nonsense. This fact, of course, makes their racket all
the more insidious. Consecrated fanatics are always more dangerous than
conscious villains. And lawyers are fanatics indeed about the sacredness of the
word-magic they call The Law.
Yet the saddest and most insidious fact about the legal racket is that the
general public doesn’t realize it’s a racket either. Scared, befuddled,
impressed and ignorant, they take what is fed them, or rather what is sold them.
Only once an age do the non-lawyers get, not wise, but disgusted, and rebel.
As Harold Laski is fond of putting it, in every revolution the lawyers lead
the way to the guillotine or the firing squad.
It should not, however, require a revolution to rid society of
lawyer-control. Nor is riddance by revolution ever likely to be a permanent solution. The
American colonists had scarcely freed themselves from the nuisances of The
Law by practically ostracizing the pre-Revolutionary lawyers out of their
communities – a fact which is little appreciated – when a new and home-made crop
of lawyers sprang up to take over the affairs of the baby nation. That crop,
150 years later, is still growing in numbers and in power.
What is really needed to put the lawyers in their places and out of the
seats of the mighty is no more than a slashing of the veil of dignified mystery
that now surrounds and protects The Law. If people could be made to realize
how much of the vaunted majesty of The Law is a hoax and how many of the mighty
processes of The Law are merely logical legerdemain, they would not long let
the lawyers lead them around by the nose. And people have recently begun,
bit by bit, to catch on. The great illusion of The Law has been leaking a
little at the edges.
There was President Roosevelt’s plan to add to the membership of the Supreme
Court, in order to get different decisions. Even those who opposed the plan –
and they of course included almost all the lawyers – recognized, by the
very passion of their arguments, that the plan would have been effective: in
other words, that by merely changing judges you could change the Highest Law of
the Land. And when the Highest Law of the Land was changed without even
changing judges, when the same nine men said that something was constitutional
this year which had been unconstitutional only last year, then even the most
credulous of laymen began to wonder a little about the immutability of The Law.
It did not add to public awe of The Law either when Thomas Dewey’s
grand-stand prosecution of a Tammany hack was suddenly thrown out of court on a
technicality so piddling that every newspaper in New York City raised an editorial
howl – against a more or less routine application of The Law. And such minor
incidents as the recent discovery that one of Staten Island’s leading law
practitioners had never passed a bar examination, and so was not, officially, a
lawyer, do not lend themselves to The Law’s prestige.
Yet it will take a great deal more than a collection of happenings like
these to break down, effectively, the superstition of the grandeur of The Law and
the hold which that superstition has on the minds of most men. It will take
some understanding of the wordy emptiness and irrelevance of the legal
process itself. It will take some cold realization that the inconsistencies and
absurdities of The Law that occasionally come into the open are not just
accidents but commonplaces. It will take some awakening to the fact that training in
The Law does not make lawyers wiser than other men, but only smarter.
Perhaps an examination of the lawyers and their Law, set down in ordinary
English, might help achieve these ends. For, despite what the lawyers say, it
is possible to talk about legal principles and legal reasoning in everyday
non-legal language. The point is that, so discussed, the principles and the
reasoning and the whole solemn business of The Law come to look downright silly.
And perhaps if the ordinary man could see in black and white how silly and
irrelevant and unnecessary it all is, he might be persuaded, in a peaceful way,
to take the control of his civilization out of the hands of those modern
purveyors of streamlined voodoo and chromium-plated theology, the lawyers.
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