“There is no greater tyranny than that which is perpetrated under the shield of the law and in the name of justice.” – Montesquieu
I can’t quite pin down when it was that ‘The Rule of Law’ lost its resonance for me as the grand inscription over the entrance to Western Liberalism. Probably around the time lawfare entered the vocabulary of political journalism. Lawfare: the word lazers-in on an opaque political process that is taking an awful long time to dawn on the average voter – namely a decidedly undemocratic legal gaming of that cherished Rule of Law. Conservatives, in particular, have – for decades – been labouring under a two-part illusion. Firstly that getting sane and sensible legislation is purely a matter of getting the right politicians voted in at election time. And secondly, that the ‘Rule’ arising from that legislation will be broadly in accordance with what you thought you’d voted for.
In this essay, I’m going to coin my own new word – Lawyercracy – to denote the kind of quasi-democracy that results when democratic pluralism – with its Left/Right back-and-forth alternations of political power – has substantially given way to a permaculture of hyper-liberal legal gymnastics.
Dickens had lots of fun with lawyer stereotypes in his 19th century novels. There’s Uriah Heep who – had he been reincarnated in our 21st century – would for sure have set his sights on being a Human Rights lawyer. He would have had a ‘very’umble’ commitment to Social Justice pouring out from his every orifice. Then there’s the Barnacle family in Little Dorrit who ran the Circumlocution Office. So enduringly tenacious has been their grip, that they now run Whitehall – from the grave as it were. I am talking here of the British Civil Service; the 100,000-strong work-from-home-force ensuring that any rethink of Britain’s sclerotic Progressive state settlement gets….circumlocuted.
Yes Dickens’ conjuring up of these characters and making fun of them has delighted millions down the decades ever since. But what might he have made of our decidedly unfunny 21st century lawyerly version of Human Rights?
Law is one of the smartest career options for ambitious young people to climb the ladder of success. And (as with all the professions) any university legal training course will come with a side-order of our culture’s version of Social Justice…one where protected-victimhood status confers only rights and not countervailing responsibilities. Not every newly qualified lawyer will head down Human Rights Road but some degree of reflexive virtue-signalling will nevertheless have been inculcated in most….with its latent dopamine-hit of being seen to champion either a ‘cause’ or an individual ‘victim’. And the ‘victimhood’ bar has gradually got lower and lower over the course of the last half century such that more than half the world’s population is a ‘victim’ of something or other.
Whenever a butterfly flaps its wings, someone in the Western world gets offended and feels a victimhood that ‘needs’ redress. This creates a lot of work for lawyers. Jiggling about with interpreting and gaming the precise wording of laws – legally ‘getting round’ them in pursuance of your client’s best interests – is, of course, intrinsic to the business. But in the perception of the common man, The Rule of Law is one in which lawyers may get around the letter of a law but will draw the line at departing from the moral spirit of it. Unscrupulous lawyers have always found ways to get around both but lawfare is where this gets deployed in pursuit of some supposedly higher moral cause.
Democracy and Lawyercracy
Time for a definition:
A Lawyercracy is a Democracy in which an unelected legal nomenklatura deploy their legal expertise to rein in any existing or emerging public political mood that they, in their self-styled sophistication, consider to be feral. The electorate does still get to choose what new Law gets onto the statute book (in broad-brush everyman terms) but then the detailed framing of new Law and the ‘expert’ interpretation of all Law is opaque to them.
Everybody learns about Democracy at school. Nobody learns about Lawyercracy. In fact very few people are conscious of living in one despite it now being the default European political model (and America is not so different). The political nomenklatura generally understands that it is best not to explicitly frame the realities of governance in quite the above blunt terms and, of course, obscurantism has long been recognised (since even before Dickens) as the lawyer’s stock-in-trade.
Thus lawyercracies tend to leave much of the citizenry in a permanent state of bewilderment. Schooled as they have been in the idea that they – as voters – get to choose how they are governed, they can’t quite figure out why all sorts of things keep happening that nobody voted for. Yes…they understand…. that, in a Democracy, you can’t always get what you personally want and yet even majorities do not seem to be getting what they voted for.
A big part of the reason why they can’t figure it out is because the arcane process of interpreting and administering Law has always been – crucially – unsuited to political ‘news’ broadcasting. So those parts of the public whose wishes end up being repeatedly ignored, just eventually conclude that the politicians currently in office must be incompetents and/or liars….and in order to sort things out, they just need to vote for different ones next time around. The legal-insider sophistries, whereby what seems pure common sense to the everyman just ‘can’t’ be done, rarely make the headlines.
Britain is an advanced case of public bewilderment. Its elected politicians ‘can’t’ stop human traffickers from bringing illegal migrants across the English Channel in rubber dinghies on a daily basis despite the democratic will of the British people in several recent elections. These illegal migrants ‘can’t’ be sent back (neither to their countries of origin nor to France) even if they go on to commit crimes. Workers ‘working from home’ (re-decorating their living rooms or catching up on Youtube….Sorry!) ‘can’t’ be sacked. Similarly those whose employment function has simply ceased to exist……… You get the general idea I think.
In recent times. examples of this kind of legal gymnastics have of course been legion (especially with respect to gaming of the eight-decades–old asylum system). They come at you so thick and fast as to almost immediately drown in this old man’s failing memory pool! So to flesh out a few specific instances, I’ll borrow from the researches of substacker David McGrogan …. a UK lecturer in Law.
……teenage rapists escaping custodial sentences due to their low IQ, Bangladeshi sex offenders escaping prison sentences because they said ‘sorry’, Jamaican drug dealers being told they will not be deported if they agree to only consume marijuana rather than distribute it in the future, and so on….
It’s important to be clear though that by no means all citizens feel equally bewildered in a lawyeracy. It is – after all – a means by which a kind of soft-Leftism can remain ‘in power’ irrespective of whether the voting majority has chosen a Left or a Right-leaning government. Lots of (mainly university-educated people) are happy enough with the results – if somewhat vague about the means.
Lawfaring Our Way to Utopia
And then there are the various kinds of Social Justice ‘activists’ who actually love lawyercracy and in our time there are a lot of such people. For the restless, serially malcontent Social Justice Warrior, lawfaring must feel like a thrilling adventure. A bit like seafaring must have in former times (only kidding!). Such intoxicating power to influence the lives of tens of millions hapless non-activist souls who get ‘colonised’ by it.
Social Justice activism always comes down to a tale of three basic archetypes….
First: there is a Victim …. paradoxically often unaware of their victimhood on account of ‘false consciousness’
Second: there is an Oppressor….again mostly naively unaware of their oppressiveness because it is ‘structural’.
Finally there is the heroic SJW Crusader…not necessarily legally- trained but aware that there are much more savvy legal and public monetary avenues to getting what you want than simply casting your little vote in a ballot box.
There Can Be Good Money in Human Rights
In the world of private litigation a kind of hybrid lawfaring often happens. This is where a lawyer is basically an unscrupulous scumbag but nevertheless probably also manages to tell their clients (and themselves) a prettily virtue-signalling story about motives. Public exasperation at Human Rights legal blah blah, tends to be focussed on the kind instanced above. But there are other kinds too that deserve more public backlash than they get. Spare some then for people like Annie Grossman who used to run a small business for dog lovers:
”Two summers ago, a 61-year-old blind woman I’d never met sued me for allegedly injuring her. Her accusation: I had impeded her ability to buy a Snugarooz Floos N’ Fun Ball – a tug toy for dogs – [when] issues with a product page’s metadata interfered with her screen-reading software…..”
She goes on to talk of how “The Americans with Disabilities Act ….was enacted in 1990, back when “going online” involved listening to a modem screech like…. inside a fax machine….. Simply put: if you want to build a website that you can be sure will evade a lawsuit, you can’t; and if you want to go to court to make the case that your site does make accommodations for disabled people, you shouldn’t….”
A lawyer she sought advice from “noted that some plaintiffs have filed hundreds of these cases. Some attorneys have filed thousands…… Every attorney I called told me the same thing: win or lose, going to trial would be more expensive than settling….Once a company has been sued, the cases are easily found in public databases, and this makes the business statistically more likely to get sued again…. it’s hard to sell a business that is in open litigation……The same week she sued me, ‘Lisa’ was named as the plaintiff on 40 other cases against a motley crew of other businesses….”
The Road to Lawfaredom
Of course no actual democracy has ever come that close to Democracy’s theoretical foundation. And so you could say that Democracy-to-Lawyercracy should also be thought of as on a spectrum. But in recent decades (and most certainly in the case of my country) the slider has moved quite sharply towards the ‘L’. So how did we get from those imperfect democracies to these ever more finely-tuned lawyercracies?
The reasons are not so difficult to fathom:
Firstly, the Progressive- Leftism that has been hegemonic amongst the West’s university-educated upper echelons ever since the 1960s has always run way ahead of attitudes amongst the wider electorate. [This is a theme I have written on extensively and so need not be dwelt on here.]
Secondly, a creeping bureaucratisation that is probably an inevitable concomitant of wealthy, technologically-advanced societies whatever their political complexion (something else I have written on at length).
But there is a third, less obvious reason…..one that I am going to call Legalcreep. In the days when new laws were framed infrequently, they could be stress-tested. But in our time, the monocled mandarin of former times – uhming and ahring about precise wordings and alert to the possibility of unintended consequences – has been replaced by the Social Justice zealot in a hurry to get their utopia onto the statute book asap.
And one huge step on the road from Democracy to Lawyercracy was taken about fifty years ago. This was when the noble idea that there should be no bigotry was reformulated as there should be no ‘discrimination’. Originating (as so much else) in the ivory towers of academe, this bogus reformulation soon started to find political expression in Law, as politicians framed Anti-discrimination laws in a frenzy of virtue-signalling. Or rather they got their civil service lawyers to frame them. Two distinct forms of civilisational decay have flowed from this philosophical folly:
- Politically, the culture of Anti-Discrimination has gradually mutated into an entirely unacknowledged reverse discrimination…….. about whose Human Rights matter and whose not so much.
- And when lawyers get to work on interpreting sloppy legislation, it becomes impossible to discriminate between basic things like honest and dishonest; to discriminate between the merely feckless and outright malign etc etc.
In both these ways, civilised instincts and social mores get numbed. It eventually becomes unthinkable to notice realities…to notice differences (to ‘discriminate’) between typical men and typical women; to notice disparate criminal offending rates between different ethnicities etc. As Hamlet didn’t actually say: To discriminate… to distinguish the better from the worse; the higher from the lower; that is the question.
So there we have it…. Lawyercracy. Is the political tide finally turning against it in these times of Populist backlash? I hope so. But what comes next?…maybe Claude knows.
