Another boat burned
Friday, July 07, 2017
Today, I let another part of my old life go. In a pleasant conversation with a lady from the International Bar Association, I explained that I did not plan to renew my subscription of more than 20 years. I had only been maintaining it out of nostalgia for the days when I used to attend its conferences in locations chosen to give its mainly American membership tax deductible vacations for themselves and their families. HMRC was never so flexible or gullible as the IRS but for me it meant networking with colleagues in agreeable cities with great shopping for cash rich / time poor professionals bribing their spouses to accept neglect. And of course intelligent discussion on subjects relevant to my international practice of law.
Reading my last copy of the IBA's journal I realised another reason why I was content to let go. The tone of the articles has changed. Lawyers are always in danger of going to the dark side because, good or bad, new laws tend to make them richer. Arguably the worse the laws the more work they generate. Only noble traditions passed on at an individual's age of peak naivety in Law School helped most of us understand that law is at its very best only a (sometimes) necessary evil and that every problem solved even by the best law introduces several new ones.
The capture of academia by Cultural Marxists / post modernism has killed that protection. Every article introducing a new law now seems to bemoan that it did not go further. For example a new law in France requires companies to monitor their suppliers for human rights and environmental concerns. French companies are required to increase their costs, making their goods and services more expensive to consumers, to "police" suppliers beyond the reach of rich world legislative activists. It repeats an unjust pattern of punishing the decent and near at hand for the crimes of out of reach bad people. It makes life more expensive. It may make companies avoid dealing with countries that fall short of Western ideals, perpetuating poverty there and increasing dependency on aid. The commentator makes no such "law of unintended consequences" points. Rather she bemoans the exemption for small companies!
The same journal contains a piece discussing President Trump's nominee to replace Justice Scalia on the Supreme Court bench. It expresses surprise that the nominee is a critic of the "Chevron doctrine" under which the Presidency has taken powers from Congress.
Michael Dorf of Cornell Law School puts the problem succinctly: "it's weird that a Republican Congress would be trying to get rid of deference to the executive branch while there is a Republican president"
If it's "weird" that a politician should ever act on principle against party interest then we are not in a post-truth but a post-ethics world. Sure, I cynically assume most will often do the wrong thing if torn between the right thing and self-serving but surely it's going too far to assume the right thing is beyond reach all the time for everyone!
The correct, ethical role for lawyers is surely to support only good and necessary new laws, to critique proposed new laws to that end and then to ensure that their clients suffer from them only to the minimum extent necessary to do justice. It's neither to assume that the more laws the better nor to challenge the sanity of legislators who seek to roll back executive power.
The only sensible article in my last copy of the journal is on the subject of "fake news". As the authoritarian Valkyries in Britain and Germany gear up to introduce censorship, the article discussed in a mostly balanced way the risks to free speech of giving government power to "regulate" so called "fake news". It's a good piece on the side of the angels but stands out from the others in a telling way.
I couldn't practise law in Britain now because I couldn't morally comply with laws requiring me to shop my clients to the authorities. I was relieved to retire without ever having encountered that dilemma and horrified to discover, when serving on my firm's management committee in the last years of my career just how often my colleagues were dropping a dime on the people they exist to serve. But I'm not sure I'd want anyway to be the kind of modern lawyer who relishes regulations and argues for ever more. I still stand with Montesquieu who said "If it is not necessary to make a law it is necessary NOT to make a law".
Thank goodness I have the financial freedom to avoid the pressures on my successors in the profession. I hope they escape their careers with their souls intact.