Lex Luhder/Lotharius/Luther¹
(Might + Cunning Makes Right)

The American system of common law (i.e. judge-made law) has become a Wonderland where the world of fact and logic hardly matter. For example, can stare decisis (star-ay de-SEE-sis; Latin for "let the decision stand') really be at its foundation? American law students pay gobs of cash to learn that the common law contains elements traceable to Roman times and is based on precedent, stare decisis, and "general principles." Fair enough, but stare decisis itself is but a disguised hybrid of the argument from history and the is-ought fallacy. In other words, it's an error. Things have gotten so out of hand with stare decisis that this long-standing doctrine is being spread in China via Hong Kong, another of Britain's former colonies.

A rational system of law is the foundation of any stable and enduring society, yet reason found few friends among the 19th century American lawyers and judges who discovered that the limited liability corporation, a government-created entity, is a living person with rights, e.g. "the right of the people...to petition government for a redress of grievances." This revelation came when railroads, steel, and ancilliary industries learned to dominate commerce during the Robber Baron era of the late 19th century. The U.S. Supreme Court, under the thumb of railroad sympathizers², was flooded with cases by these special interests which had risen to new heights during the U.S. Civil War. Finally, the court caved in despite the fact that corporations are not citizens, not people, not alive, and so cannot possibly have rights. Stare decisis and the so-called "general principles" have not only failed to undo this error, but have provided lawyers and judges with the means to reinforce and expand upon their invention for almost 120 years. Corporate personhood is now copied in Canada and other parts of the world where it is being spread with vigour.

"It is the lawyers who have discovered
that theirs is an honourable profession.
They frame laws as they frame their own praises."

- Mohandas Gandhi³

Why not, instead, base the common law system of North America on logic, set theory, mathematics, and physics? A thorough training in these subjects normally instills a deep bias favoring truth over clever word-smithing and cute fictions, a fact you can confirm by interacting with a mathematician or scientist. Do judges and law school professors fear being exposed as oblivious to such well-understood tools—the Law of Identity being among the most basic? Would such change provide a badly needed check on judicial power from outside the confines of government and an obscurantist legal profession? Would there ultimately be a gentle correction applied to some very confused lawyers?

One case decided in January 2003, Eldred v. Ashcroft, suggests the answer is "yes" on all counts. In that year, neither stare decisis, the general principles, nor the U.S. Constitution were enough to override an ex post facto law. Such laws are outlawed in Article 1, Sect. 9, but the retroactive provisions of the Sonny Bono Copyright Term Extension Act, passed in 1998 by a Congress full of lawyers, extended the copyright terms of works copyrighted before the law was enacted. Those silly lawyers and politicians might have spared themselves another black eye by checking Merriam-Webster's Dictionary of Law to confirm that ex post facto means "retroactive" no matter what type of law or subject is under consideration. If they were still confused, they might have studied the text Latin: An Intensive Course to figure out a more literal translation like "from a thing done afterward" or "after the deed." But in 2003 the politicians and lawyers turned a blind eye when the Supreme Court held the SBCTEA constitutional in a 7-2 decision. In fact, the central issue of Eldred v. Ashcroft wasn't even the ex post facto feature of the SBCTEA. According to a long-standing double standard of the Court, the ex post facto prohibition applies only to criminal law. Nonetheless, Supreme Court Justice Sandra Day O'Connor saw fit to publish her tome "The Majesty of the Law" in 2004.

He who is exceedingly corrupt, like a maluva creeper strangling a sal tree,
does to himself what even an enemy would wish for him.

The Dhammapada, v. 162 (12:6)

How do we undo the Gordian knot tied by a profession with such shortcomings? The lawyers' present system of professional self-regulation isn't working, and one can hardly trust the lawyers in Congress or state legislatures to regulate our way back to reality. An obvious roadblock is the conflict of interest at work when a class of professionals is permitted to artificially control the size and characteristics of its own labour pool, not to mention guarantee employment for itself at exhorbitant cost through the husbandry of a labyrinthine legal code. (Recall, if you will, the trajectory of Byzantium.)

Errors like corporate rights and ex post facto copyright laws might be corrected with a lot of difficult slogging in the courts, but structural reform of lawyer education is needed, too. First, soft undergraduate "pre-law" curricula could be replaced with a program in critical thinking skills as outlined above. There will be no more communications and political "science" majors crowding out the serious-minded. Commerce will always be an important concern of the law, so applicants should have mastered business basics of accounting and finance before entering law school, too. Next, the first year curriculum of law school could be completed as an undergraduate and the traditional 3-yr J.D. program replaced with eighteen months to two years of instruction. (Law school treasurers and redundant professors may object to such plans!) If all this means the typical law school applicant must spend five years in undergrad, then so be it. Finally, an apprenticeship, as was the practice long ago, could complete the lawyer's training.

We could go even further. Why not bifurcate the profession into tiers according to professional competency? A solicitor, for example, is a British lawyer who can advise clients and represent them in lower courts, while barristers may argue cases before a British high court. No option should be ruled out in the quest to bring sanity, ethics, discipline and order to a profession that, as we have seen, renders a comically mediocre product. Of course, the lawyers and judges have a good thing going and won't reform themselves without a tussle. A number of professional organizations such as the ABA, AALS, ALI, NCCUSL, and NCBE will no doubt want a say, too, if only to invent excuses why reform is unnecessary. Perhaps the first step towards a solution is simply to declare that the most important "general principle" of the common law is in effect and, in the spirit of Mohandas Gandhi, that all contrary laws are null and void, whatever their supposed lawful status. We will have to loosen the knot with a sword, in a manner of speaking.

By the way, slavery is legal in America after all these years⁴. The result is America's prison-industrial complex with millions of residents, an indicator that a vengeance-oriented penal code is insufficient to deter crime if not a breeding ground for it. But the Christian Bible, of course, sanctions slavery just as it does an eye-for-an-eye mentality. Interestingly, the sharia (of Islam) is another legal system tolerant of slavery, based on precedent, and likewise known for arbitrariness, internal inconsistency, and draconian punishment of sinners.⁵

"Let the jury consider their verdict," the King said,
for about the twentieth time that day.
"No, no!" said the Queen. "Sentence first—verdict afterwards."
"Stuff and nonsense!" said Alice loudly. "The idea of having the sentence first!"
"Hold your tongue," said the Queen, turning purple.
"I wo'n't!' said Alice.
"Off with her head!" the Queen shouted at the top of her voice.
Nobody moved.

Alice's Adventures in Wonderland,
Ch. XII - Alice's Evidence

1. Martin Luther's last name, pronounced in German with a hard 't' sound as in Thomas, is derived from two Germanic words which, when compounded, can mean "famous fighter" or " loud army." A lothario is a rake, i.e. a dissolute, debauched man.
2. President Abraham Lincoln, once a conservative Whig, had railroad clients during his career as a lawyer. One such client, the Illinois Central Railroad, yielded Lincoln the biggest payday of his legal career just as as the Civil War provided a windfall for the railroad and weapons industries. See Lincoln by David Herbert Donald. The Whigs, like their Republican (GOP) successors, favored government protection of industry.
3. The Peguin Gandhi Reader, edited by Rudrangshu Mukherjee, (New York: Penguin Books USA Inc., 1996.) Mohandas Gandhi received his law training in England where "he enrolled at the Inner Temple and was called to the Bar in the summer of 1891."
4. "Neither slavery nor involuntary servitude, except as a punishment...shall exist in the United States..." Amendment XIII, the Constitution of the United States of America. Before the War Between the States, slavery could not exist except for Africans and only in certain states and territories. In the early 1600s there was lawful slavery at the Jamestown colony, a venture of the London-based Virginia Company. The importation of African slaves was a lawful corporate activity. There was also the Massachusetts Bay Colony, an intolerant theocracy chartered as a corporation by the English crown.
5. See Islam by Alfred Guillaume (Middlesex, England: Penguin Books Ltd., 1954, 1956.)

"I smote the peasants; all their blood is on my head; the Lord God ordered it." -Martin Luther, as quoted by Jacques Barzun in From Dawn to Decadence: 1500 to the Present - 500 Years of Western Cultural Life, p.19. Luther was an acknowledged Jew-baiter and, according to William Shirer, author of the Rise and Fall of the Third Reich, a "ferocious believer in absolute obedience to political authority."