Rule of Lawyers versus the Rule of Law

Rule of Lawyers versus the Rule of Law

Harvard University Professor Niall Ferguson, a noted economic and financial historian, contends that the rule of law has been supplanted by the rule of lawyers within the United States. He cites Dodd-Frank as an example of legislation that constitutes a lawyer employment scheme.

Rather than protecting businesses and individuals through the rule of law, Professor Ferguson contends that such laws create an unduly burdensome regulatory environment. Along with other factors, Ferguson claims that this places the United States on a path of decline reminiscent of what happened to Great Britain post-World War II.

Taking potshots at the legal profession is nothing new. Yet Professor Ferguson mistakenly implies that attorneys are responsible for legislation he finds onerous.

This ignores the fact that only about 1/3 of Congressional members are attorneys and those numbers are declining as just 1/4 of new members are lawyers. Even if lawyers voted lockstep for a piece of legislation, the bill could not pass without the assistance of Congressional colleagues who have never practiced law.

Moreover, those attorneys who do serve on Capitol Hill hold divergent views on legal issues based upon ideology, party affiliation, and the areas of law they practiced prior to being elected.  With such in mind, any legislation that could possibly threaten the rule of law needs a majority of non-lawyers to vote for it to ensure passage.

There are no smoke-filled rooms in Congress where lawyers meet to create employment opportunities for their colleagues in the private sector by passing legislation. Positive or adverse effects on the practice of law are coincidental rather than by design.

Although there is evidence to support claims that the rule of law has deteriorated within the United States and other nations as regulatory burdens have increased, blaming the legal profession is misplaced.

When Dick the Butcher, a character in William Shakespeare's Henry VI Part 2, suggests that "[t]he first thing we do, let's kill all the lawyers," that recommendation was made as part of a plot to overthrow the government. For even the Bard of Avon recognized that the rule of law depends upon the legal profession as its defender.

Recommended Reading

Niall Ferguson: The US Is Beset By the 'Rule of Lawyers', Business Insider (May 3, 2012)

Is America Becoming an Anti-Risk Welfare State?, Barrons (Apr. 28, 2012)