A popular quote from Nicolás Gómez Dávila, “Dying societies accumulate laws like dying men accumulate remedies,” reflects the idea that a healthy and mature society should not be preoccupied with constantly creating new laws, prescribing to itself a cocktail of legislative remedies to fix its mounting problems. An over-lawyered society is a society in decay. Everything is disputed. There are sharp divisions, exacerbated by a dishonest and hypocritical façade of “shared values” that only mask the deepening hostility. The growing raft of new legislation is intended to shore up crumbling institutions, and also to give new legal weaponry to the different factions waging increasingly acrimonious lawfare among themselves.
The Cambridge English Dictionary defines lawfare as “the use of legal action to cause problems for an opponent.” Lawfare is a prominent feature of a society primarily devoted to discord and infighting. An example of this is the Department of Justice case against Donald Trump for, among other things, “election subversion” and perpetrating fraud by “spreading lies” about the conduct of the presidential election. Stephen B. Presser highlights the threat posed to the rule of law by such political prosecutions: “Sadly, there is no longer much hope for the rule of law in New York, and one can only pray that this is not indicative of the death of the rule of law and the Constitution in the rest of the country as well.”
Yet, even as Mr. Trump’s political enemies wage war against him through the law courts, they are increasingly paranoid that, should he win the next election, he would, in turn, prosecute them in revenge lawfare. The New York Times, in an article titled Why Legal Experts are Worried About a Second Trump Presidency, reports that “legal experts” in “the D.C. legal establishment” are worried “about his plans to use the Justice Department to seek revenge against his enemies.” The article assumes that waging lawfare against Trump is perfectly acceptable because “for laws to have credibility they must be applied to everyone,” but fails to appreciate that, by the same token, Trump waging lawfare right back at them could also be said to show that the laws apply to everyone.
More importantly, law does not exist for either side to teach a lesson to their political enemies, and it cannot be right for progressives to wage lawfare while expressing concerns about potentially finding themselves on the receiving end of their own methods. This farcical situation reveals a deeper problem, namely, a legal system that has run wildly out of control. There is too much law, and most of it is designed to resolve problems created by having too much law.
In Simple Rules for a Complex World, Richard A. Epstein argues that we expect too much from the law, in assuming that every social problem needs a new law to fix it:
…the level of aspiration for law in the United States, and increasingly throughout the rest of the world, is simply too high… we try to solve more and more problems by legal rules and fewer through voluntary accommodation.
One hazard he highlights is that of “focusing too much on the unhappy anecdote,” which “ignores the hidden benefits that voluntary transactions might have in other cases that produce not moving stories but inconspicuous successes.” Millions of quiet successes rarely make the news, while the unhappy anecdote is always newsworthy especially if it involves a victim of some form of social injustice. As laws proliferate and increase in complexity, they become more difficult to understand. This is where lawyers come in, with their hefty legal bills. Epstein observes that, “By degrees we find that private and public actors all must resort to the use of lawyers, or to administrators steeped in the law, in order to solve their individual problems—thereby creating additional problems for others.”
A good example of this trend is the corpus of civil rights law which purports to resolve all manner of ills ranging from people feeling humiliated by others “misgendering” them, to people unable to pass tests to join the profession of their choice. In New York a $1.8 billion settlement for black teachers was driven, not merely by blacks aggrieved at failing their tests, as many assumed, but by unions and their lawyers who saw this as the perfect test case to execute a massive wealth transfer from the public purse to the “victims” of racism through civil rights disparate impact laws. To socialists and neo-Marxists, civil rights laws are a useful weapon in bringing about the wealth equalization they desire.
Murray Rothbard regarded the state as “the inherent enemy of liberty and, indeed, of genuine law.” The proliferation of legislation designed to give one group lawfare weapons against other groups, often by creating phony legal rights, is a pertinent example of this. Rothbard’s theory of libertarian law would avoid the perils of too much law by relying entirely on two central concepts—property rights and the non-aggression principle:
In short, there exists another alternative for law in society, an alternative not only to administrative decree or statutory legislation, but even to judge-made law. That alternative is the libertarian law, based on the criterion that violence may only be used against those who initiate violence, and based therefore on the inviolability of the person and property of every individual from “invasion” by violence. In practice, this means taking the largely libertarian common law, and correcting it by the use of man’s reason, before enshrining it as a permanently fixed libertarian code or constitution. And it means the continual interpretation and application of this libertarian law code by experts and judges in privately competitive courts.
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