Power or attorneys

No scandal breaks, no controversy arises, no conflict proceeds for long before each major participant becomes at least two major participants: the individual and his lawyer. Each new kink in the White House Scandals breeds a crop of lawyers. High-profile cases spew forth lawyers like water from a fire hose, all making such arcane legal maneuvers that more lawyers must be hired just to explain to the public what's going on. Aliens with no knowledge of our culture beyond what they managed to catch on the cable news networks might well conclude that our society operates within a complicated structure mapped out and policed by members of the Bar. These arbiters write, stretch, interpret, circumnavigate, shore up, or abrogate the rules according to current demand (and, not incidentally, their own profit). Legality forms a kind of exoskeleton around our daily affairs, embodied in the lawyers themselves.

In one sense, this is only to be expected. To paraphrase Alexander Hamilton, if men were angels lawyers would not be necessary. As long as conflicts abound, so will the legal profession, in equal measure. But there is a difference between rule by law and rule by lawyer. Rule by law requires an innate standard of morality that the members of a society share; in the western tradition this standard has come to be known as "natural law." Rule by lawyer is every man for himself, scrambling for position, protection, or profit. As the former fades in our society we find ourselves increasingly beset with the latter.

How did this state of affairs come about? Our instincts might direct us only about 30 years back, when civilization jumped the tracks in a disaster known as the Sixties Revolution. With the liberalization of laws in general, such as those concerning abortion and divorce, came a reaction against the very concept of natural law. This stately, time-honored principle was not merely challenged, but dragged into an alley and mugged. The groundwork for the crime was not laid in this century, however. The road from Blackstone to Blackmun, from "the law of nature and revelation" to "the right to privacy" stretches back well over 200 years, with origins in the Enlightenment and detours through the French Revolution, the progressive movement, John Stuart Mill, and Oliver Wendell Holmes. Effects among the general public were delayed until the recent past; 50 years ago, most American citizens would have agreed with the concept of natural law, even if they did not know the term. But concern for "rights" has crowded out most objective standards of Right, casting a shadow over the whole idea of objective standards. Clarence Thomas's supposed espousal of natural law was considered a strike against him by the lawyers on the Senate Judiciary Committee, which led to some elaborate and side-stepping wordplay during his confirmation hearings.

Two hundred years ago, Edmund Burke recognized that men must be ruled by some agent of control, "... and the less of it there is within, the more there must be without." He was commenting on the French Revolution, which proposed to scrap the old system of natural law and set up a new civilization based on individual rights. As we know, the scheme didn't live up to its promise: The breakdown of social order in France led to anarchy, then dictatorship, then years of civil unrest.

The rejection of natural law in the United States is less colorful perhaps-instead of Napoleon, we get a whole class of men and women in gray wool suits carrying briefcases. Of the Israelites after Joshua it was said, "In those days there was no king in Israel; every man did what was right in his own eyes." Of us it might be said, "In those days the rule of law crumbled in the United States; every man employed his own attorney."

The "controlling power" must come from somewhere, as Burke recognized; if not the rule of law, then a law of rules. If we will not be governed from within by basic standards of morality that God has written on every heart, then we will be ruled outside ourselves by an ever-expanding legality: more legislation, more regulation. Law frees a society to be its best, but legality saps initiative, breeds confusion, creates a climate of fear and distrust, and slowly turns free citizens into vassals. Law concerns itself with what's right, legality only with what's allowed. The irony is, without some broad agreement on what's right, the parameters of what's allowed must become smaller and smaller.