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Subjective Law Is
the Whim of a Majority
November 11, 2004;
Wall Street Journal, Page A17
Robert F. Nagel is naive if he believes that the problems for democracy -- or even constitutional republics -- is law schools ("Law Schools are Bad for Democracy," editorial page, Nov. 2). The problem is not law schools themselves; the problem is that they teach that there are no answers, only arguments. Law schools teach that there is no objective law, that is, no statement of law that is dispositive with a certain set of facts, only arguments to be made about those facts that can be heard by a sympathetic judge.
Subjective law is not law, but the whim of a majority, whether it be a majority of a population or a majority of a court. The United States was founded on the rule of law, with the government limited by the highest part of that law, the Constitution. However, since the New Deal court, the function of that court has not been to recognize that law and limit the government, but to expand the powers of the government in order to rob Peter to pay Paul either via taxes or regulation. The result is what we see now -- one side fighting to protect itself from the other side who wishes to pay for their "good intentions" with the work of the other. Tyranny of the majority.
It is no wonder that politics and elections carry such vitriol now. Without the protection of the law, the people who pay the most taxes are subject to the whim of the majority: exactly what the Constitution was supposed to protect, but what the Supreme Court, Congress and the president over the past 75 years have ignored.
It isn't law schools that are bad for democracy, but judges, justices, legislators and chief executives who ignore the Constitution to enhance their own power. People see this and use whatever means necessary to get their desired outcome -- voting for someone who will take from someone else to give to them or using the courts to accomplish the same ends.
Either way the result is the same, without the rule of law, no one's life or property is safe when it can be disposed of by a majority. Law schools shouldn't take the blame here; the blame belongs with the people who have squandered our birthright -- freedom by inalienable right, not government grant.
Christian H.F. Riley
Ponte Vedra Beach, Fla.
Mr. Nagel states that law schools teach law students to value the debate over the outcome. From my dealings with lawyers, mostly in cases of worker's compensation and motor vehicle injuries, I have come to see the essential difference in how lawyers and doctors approach reality. Doctors are taught to gather the facts and see where they lead. Lawyers look at where they want to go, and then see how they can manipulate the facts to get there.
Bradley J. Bergquist, M.D.
In a classroom debate with a fellow law student, I remarked that my opponent's argument represented "the triumph of advocacy over mere reality." This was met with scorn and derision by many of my classmates, all to the evident satisfaction of the professor. This was at Harvard Law more than 30 years ago.
Judging by the evidence, the core content being taught at America's law schools continues to be intolerance, self-righteousness and the achievement of "correct" outcomes by any means necessary.