Legal Ethics and Reform


Why So Many Laws?

In Conflict with Each Other and Changing so Often?

The basis of a civilized society is law. The law allows for standardized treatment of men, the law allows people to plan their futures, the law gives people assurance that wills, contracts, and trusts will be enforced, that certain behavior will be allowed while other behavior (crimes and torts) will be punished, etc.

Five important characteristics of "the law" in a civilized society follow: 1) The law must be of manageable size so the average man can learn the law without a lifetime of study. 2) The law must be simple enough for the average man to grasp and understand. 3) The law must be stable so men can, once they learn the law, live their lives with great assurance that they know the law and are not violating the law. 4) The law must be internally consistent so a man who follows one law does not find himself violating some other law. And last, but not least, 5) "man made" law must harmonize with the unchanging law of God.

Each of these principles needs to studied in light of America's current legal structure:

Manageable size: The typical public or academic law library contains over 100 million pages (in excess of 100,000 volumes) of statutes, regulations, reported legal decisions, commentaries, cross indexes, law dictionaries, legal encyclopedias, law review articles, etc. However,  most law libraries have found all these pages inadequate. In the last ten years they have added "on line" access to great legal web sites run by Lexis and West Legal Publishing. These web sites allow law students and lawyers to do quick searches of all published material related to a given topic. These web sites are expensive but if the right legal key words are entered the results are very useful. Twenty to one hundred pages of information is displayed on the screen. In an hour or two any journeyman lawyer  will know all that is worth knowing about some narrow area of the law. Of course, total or complete knowledge is beyond human reach. No one not even the most dedicated legal scholar can claim to know "all the law". In fact America's situation recalls ancient Rome,  just before its fall, when the laws began to multiply. A sage of the late Roman Empire remarked "A corrupt society has many laws".

Simplicity: As the preceding description makes clear, mastery of legal jargon is needed to figure out  which key words will yield the right information during the search. Additionally, mastery of legal jargon is needed to understand the information that is ultimately displayed.  Average people have first to learn a mass of legal jargon if they want to understand the laws they live under. Appellant Court judges will readily admit that they write their opinions for practicing lawyers not average people. They do this to show where prior precedents are being upheld and where prior precedents are being changed or clarified. Their opinions only make sense if the reader is already familiar with the earlier opinions by other judges baring on this area of the law. This all sounds well and good until one realizes that these opinions are at least as powerful as legislated law in determining what average people can and can not do. The real effect of these obtuse, carefully crafted opinions written for the practicing lawyer, is to make the law unknowable to the average citizen unless he is prepared to pay a lawyer to study the "law" (court opinions) and then explain it in layman's terms.

Stable & Rarely Changed: Cicero and Aristotle felt that laws should be few in number and seldom changed. Saint Thomas Aquinas went farther saying that change in the law was in and of itself  undesirable and that any change to the law requires strong justification. Despite this wonderful advice from these great sages of Western Civilization, in America change is the order of every day:  (a) the 44,000 page tax law changes every year as does the 100,000 page rule book governing Medicare, (b) the suspense calendar in Congress is always full of special legislation designed to favor certain preferred groups, (c) general laws at both the State and Federal levels are regularly passed which give regulators the right to issue (and change) "implementing regulations" without any review by elected legislators, and (d) the courts (Federal and state) regularly change, overturn, or interpret legislation, regulations, and earlier court opinions. The volume of change is staggering.

Internally Consistent: As the mass of law, court decisions, and regulation increases, changes and grows in complexity, it is logical to expect that various inconsistencies will occur. Of course, inconsistencies crop up all the time, in fact this happens so often that Law Schools now offer whole courses on the  CONFLICT OF LAWS. If lawyers are confused think of the poor average citizen who has to somehow function. An example might illustrate the problem: One compliance manager at small stock brokerage firm had a question about what stock research could be offered for sale over the internet. After talking to four lawyers, he had four distinct "opinions" on the issue. After spending a thousand dollars for legal advise and many hours listening to the advice, the compliance manager didn't know what to do. The first lawyer  suggested that the safest path seemed to involve registering his firm in every state as a Registered Investment Advisor (State RIA) and spending $15,000 per year and hundreds of hours filling out forms. Of course, the laws of all fifty states would have to be followed even if they conflicted with each other. The second lawyer suggested seeking a Federal investment advisory registration and filing notices of Federal registration in the fifty states with the same $15,000 of fees. This registration is available if more than five customers show up to buy the research in each of at least 35 state in 120 days. If the 5 customers in 35 states don't materialize then the Federal registration must be withdrawn an individual state RIA registrations obtained. The third lawyer suggested that the firm register as an advisor in the state where the firm was domiciled and then get registered in other states if those states formally complained, of course, these complaints might be accompanied by demands that fines be paid. The last lawyer said that no RIA registration was needed (State or Federal) saying the firm should depend on a federal exemption which allows broker dealers (securities firms) to sell research as an incidental part of their other activities. When a helpful friend suggested that a fifth opinion be obtained, the compliance manager stared in disbelief,  totally at a loss for words.


In harmony with God's Law:  God is  more intimently acquainted with man's nature than any human. God did not create the biblical commandments to be difficult or overly restrictive; He created them because he give men free wills, and He knew which evil tendencies were likely to appeal to men. When lawmakers, judges, and lawyers decided to place "manmade" law in opposition to God's law they naturally put men in the difficult position of having to follow God or their temporal rulers. Lawmakers and judges also create an unending string of "what about this "questions that lead to greater and greater departures from God's Law. The examples abound: homosexual rights, abortion, no fault divorce, excess government social programs, driving prayer out of the classroom, etc.  Each of these has in turn leads to other  question such as: Do homosexuals now have a right to marry? Do mothers have a right to kill their unborn children even as the child is sliding down the birth cannel ready to be born? Does no fault divorce carry with it the right to force the innocent, injured spouse out of the home while simultaneously forcing that innocent, injured spouse to pay child support for decades? Does the massive growth of gov't social spending necessarily mean that private and church charities will be striped of the tithe money their donors might otherwise have given? Does forcing prayer out of the classroom indicate to our youth that God is only a "sometimes" factor in their lives and that He is unrelated to the central activity of their daily routine? It is obvious that each such step is simply another step on a slippery slope away from God.

So why do  lawmakers,  lawyers, and judges  violate these five obvious rules. The only answer that makes any sense is self interest. Lawmakers want to be re-elected so they pass laws which pander to man's baser instincts and give special advantage to large contributors. Judges at the appellate level (and bureaucrats in the executive branch of government) are lured by the evil urge to become "little gods". They put God's Laws aside and set off on their own to re-define right and wrong.  Judges at the trial court level become friendly with the lawyers that appear before them so they act in ways which increase the power and/or wealth of these lawyers. Lawyers themselves are in need of income to support their families in an aristocratic fashion, so they encourage judges and lawmakers to increase the complexity of courtroom procedures and/or law in general so more "lawyer's work" is created. Simple laws and simple court room procedures are not the stuff upon which grand legal fees are built.

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