What is the purpose of the law? Why do we need lawyers? Is there a better system available to society? Has the practice of law been corrupted by the greed motive? These are all vitally important questions that need to be discussed in a frank and open manner. The accessibility of an internet website makes it the perfect tool for hosting such a free ranging discussion on aspects of the law.
What is the Purpose of the Law?
“Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts.”
[Yick Wo v. Hopkins, 118 U.S. 356; 6 S.Ct. 1064 (1886)]
The sovereign makes the law in order to protect his, her or their “life liberty and property”. The mechanism for upholding the body of rules known as the law is first the police force. Since part of the law is the right to a trial, lawyers and legal professionals become involved in the law process.
The notion of sovereignty varies from country to country. In England the monarch is the sovereign. In the USA, following the model handed down from the French Revolution ‘the people’ are the sovereign.
Under the American system ‘the people’ therefore have the right to change the law. And yet their elected representatives often seem reluctant to enact the changes that many of the people want. A classic example of this is the legalization of marijuana. The people of California clearly want this but their sovereignty is undermined by the overriding claim of sovereignty held by the federal government.
Why do we need lawyers?
Essentially lawyers are a product of the inaccuracy of language. As more words are used the more there is room for interpretation. Words are a way of modeling reality. The model is not reality. Thus, lawyers are needed to find suitable interpretations for the words of the law.
Secondly, the constitution upholds the right for a man to defend himself if accused by the law. The law is complicated and this right requires lawyers. In civil law the right for redress against a perceived wrong also requires the services of a lawyer.
Finally, as a result of the slippery nature of language, lawyers are needed to write agreements that cannot be easily broken.
Therefore, lawyers are experts in the details of the law as well as the language of the law. The details naturally include the important body of examples set out in precedence.
Is there a better system available to society?
Some countries use trial by jury; in others judges decide the verdict of guilty or not guilty. Either way lawyers are used to expound the opposing points of view of the plaintiff and the defendant. Should we scrap the system of lawyers and let people directly plead their case to a judge? As in the case of King Solomon, a wise man could see clearly to the heart of the matter and reach a just decision, mete out justice.
People are dismayed with the ‘tricks’ lawyers use such as pleading that technical proceedings were not followed correctly. It is commonly perceived that those with lots of money can retain the services of lawyers who are adept at throwing up smokescreens of words by which they can make ‘black’ become ‘white’.
There are clearly problems with the legal system. They might, however, reflect inequalities and problems in society rather than in the theory of the law.
Has the practice of law been corrupted by the greed motive?
The last point naturally leads on to the relationship in America between money and the law. People can become rich from using the law in the USA, more so than in any other country. Not only can some lawyers command high fees for their services but they can also take a commission for damages they recover.
The culture of ‘ambulance chasing’ is seen by many foreign observers as being endemic in the USA. This does seem to be an unfortunate side effect of the sovereign right to pursue a grievance through the legal system. Other countries have basically the same legal system as the USA with little litigation. One definitely has to question the motives of many plaintiffs. Greed undoubtedly is behind many court cases. However, sometimes it is the desire to clear ones name, or the desire to challenge the law itself. Again, we have to look not at the law but at the society that uses the law in cynical and greedy ways.
These are just notes to get the ball rolling. www.nalpexchange.org is about an exchange of opinions connected to the law. It is often quoted that the future is a foreign country; well the law is also a foreign country. This website intends to explore the law in its widest sense and in its most far reaching applications and influences in order to make the law less foreign to us.