We are developing the social individualist meta-context for the future. From the very serious to the extremely frivolous... lets see what is on the mind of the Samizdata people.

Samizdata, derived from Samizdat /n. - a system of clandestine publication of banned literature in the USSR [Russ.,= self-publishing house]

Samizdata quote of the day

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!

– ‘Tom Paine

10 comments to Samizdata quote of the day

  • Lee Moore

    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

    And while we’re on the subject of gullibility, Tom Paine, perhaps you have forgotten that of the 535 members of Congress – the body that writes the tax law – 819 are lawyers.

  • Paul Marks

    Good article – the leftist lawyers can not not see why a Republican President would nominate a judge who would REDUCE the power of the President, because legal principles are utterly alien to the leftist mind. This is why even President Trump, bad though he is in many ways, is light years better than the left – the left are to the principles of law what anti matter is to matter.

    To the leftist mind “the rule of law” just means lots of “laws” seeking to plan society in every detail (as the article makes clear the only thing that modern law journals complain about is that the collectivist laws do not go far enough) – they have the same view of “law” as Frederick the Great did (see his law code) or that Louis XIV (the “Sun King” did) – the idea of PRINCIPLES of law is alien to them.

    Edmund Burke (not Thomas Paine) makes this point in “The Reflections” – lawyers are not all the same, the sort of lawyers involved in the French Revolution were interested in their own power, and in using “the law” as a club to remake society as they wished it to be, the idea that there were PRINCIPLES of law that limited their own power was alien to this sort of lawyer. It is still alien to this sort of lawyer.

    It is interesting to examine modern accounts of the great legal minds of the past – they pretend to venerate such men as Chief Justice Sir Edward Coke and Chief Justice Sir John Holt, but the hatred shows through. Modern accounts are eager (all too eager) to tell us that Coke “got it wrong” about X,Y,Z – for example about Magna Carta. Actually as Geoffrey Hindley shows in his “Brief History of Magna Carta” Cook got more right than he got wrong. And he is certainly closer to the principles of law (for example in his understanding that Parliament can be just as much of a threat to the law as the King can be – as Coke points out in Dr Bonham’s case where he struck down a Parliamentary Statute as well as an order of the King, Chief Justice Sir John Holt also made it clear that Parliamentary statutes that violate the basic principles of law are void) than his critics are – indeed his critics, under their “liberal” disguise, are really Hobbesians. They would just set up a many headed tyrant rather than a tyrant with one head.

    Even in the 19th century the “liberalism” of Maitland and the despotism of Thomas Hobbes was a distinction without a real difference. But now the lawyers do not just allow the government to behave despotically (as both Maitland, Sir William Blackstone and Thomas Hobbes would have – none of these men would have come to the aid of someone unjustly persecuted by “laws” that violate the principles of law) – these days, as “Tom Paine’s” article makes clear, the lawyers do not just allow the government to behave despotically (destroying private property rights and basic liberties) they DEMAND governments behave despotically.

    The only criticism that fashionable modern lawyers have of governments is that their “laws” do not attack the basic principles of private property and voluntary association enough, they scream that there be more and more such attacks till under despotism (the destruction of Civil Society) is “achieved” – thus, yes, the Frankfurt School is triumphant.

    The legal philosophy of Thomas Hobbes and Jeremy Bentham reduced law to just the commands of the state (they made law a club for the ruler or rulers, seeking to destroy the principles of the rule of law) – but modern legal philosophy goes further, it DEMANDS that the rulers use the club to do great evil (even if they do not wish to do so).

  • bobby b

    ” . . . perhaps you have forgotten that of the 535 members of Congress – the body that writes the tax law – 819 are lawyers.”

    If you’re making the point that I think you’re making, consider that doctors, engineers, mechanics, balloon drivers, spittoon cleaners and members of every other professional or vocational affinity group can (and do) set up such tax-deductible professional meetings in lovely places and thus enjoy tax-subsidized vacations. This is why – even though it would be far cheaper – no one sets up their yearly association convention in Omaha, Nebraska. This deduction scheme isn’t kept in place by lawyers – its main proponents are the “hospitality industry” of hotels, restaurants, vacation resorts, and the like.

    “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.”

    I’m quite sure the advocates of the laws he decries feel that those laws are good and necessary. Paine disagrees, and wants HIS choices to prevail. Further, he acknowledges that the vagaries of his current client list ought to help inform him of the meaning of “good and necessary.”

    He’s not making a process argument. He’s arguing outcomes. He seems to be saying that he’s stepped out of the profession because it no longer works, but actually he just got outvoted.

    I see this in many lawyers who believe that a legal education combined with experience in the legal system gives them an overarching wisdom that qualifies them as arbiters of social questions. They forget that, beyond the basic knowledge of how words in laws work, the value of lawyers comes only in pairs – that an adversarial advocacy system works only because two informed advocates can urge their opposing views on a neutral “decider”. Being able to do that competently speaks not at all to how wisely such a person could inform government.

  • Laird

    I’m not sure I understand your point, bobby b. Of course he’s arguing outcomes; what else is there to discuss? He’s talking about the wisdom (nay, the morality) of forcing companies over whom you (as a legislator) have jurisdiction to impose your values and laws onto companies in other countries over whom you don’t have jurisdiction. He’s discussing the morality of laws requiring lawyers to report their clients to governmental authorities (apparently lawyer-client privilege no longer exists in England). And he’s discussing the venality of lawyers who support new laws merely because it will make them richer. Surely that’s all worth discussing, and worthy of a more thoughtful response than “he just got outvoted”. Some things shouldn’t be subject to a vote in the first place.

    As to your comment about “the value of lawyers comes only in pairs”, well yes, that’s how our adversarial system is supposed to work. And sometimes it even does. But in an era of activist judges with a political agenda that “neutral decider” sometimes has his finger on the scales of justice. And if you practice in a state where judges are appointed by the legislature (such as where I live) the inherent conflict of interest is only too apparent when such a judge is presiding over a case involving one lawyer who is a sitting legislator and his opponent who is not. Frequently, the “value of lawyers in pairs” is better expressed by the old adage that if there is one lawyer in town he goes broke, but if there are two they both become rich.

  • “Of course he’s arguing outcomes; what else is there to discuss?”

    By asking that question, you identify yourself as being, like me, NOT a post-modernist. So much discussion now ignores outcomes so that, for example, it’s not enough that the poor become less so if anyone else becomes richer. Or, for another example, it’s not enough that members of an identity group achieve — even achieve more than straight white males — unless SWMs are punished for the “crimes” of their ancestors. Hence we are hearing the term “white supremacy” more often now than in any time when it would have been more plausible. Hence we hear proposals for tax increases that will have the outcome of a lower tax yield because the outcome is so not the point.

    Post-modernism denies the validity of Reason itself, arguing that all arguments are of the Mandy Rice-Davies variety — i.e. “He would say that, wouldn’t he?” There’s no point in seeking reasonable explanations if our ideas are all the conditioned product of our identity. I guess that was the cause of the learned professor’s confusion in the article I cited in my post.

    Thanks for the link and for the interesting discussion it has stimulated here.

  • bobby b

    July 14, 2017 at 4:42 am

    “I’m not sure I understand your point, bobby b.”

    First and foremost, I agree with virtually everything else Mr. Paine wrote in that essay. How could I not?

    But the quoted portion sets off bells for me. One of my own personal bugaboos (as a lawyer, and as not) is the way lawyerdom has taken on to itself a mantle of moral authority – some heightened ability and responsibility, granted purely because of being lawyers – for guiding society’s path, for knowing wrong from right and how to get from one to the other.

    We’re essentially technicians with a literary bent. Nothing in the making of a lawyer enhances our moral reasoning or allows us to perceive more clearly than most what other people need and want.

    We do need to be an integral part of the law-making process (because no one else is going to have the training to recognize the criticality of word choices), and it helps greatly to have that training within the ranks of the representatives arguing the language of legislation, but, aside from that, lawyers qua lawyers have no more insight into what the aims and goals of legislation ought to be than anyone else.

    We’re very well-paid sys-ads in the legislative process. In the computing analogy, we don’t let our techies decide the ultimate aims and goals of our computer systems – we decide those, and then let them know so that they can structure their work to best serve our desires. That’s the proper role for lawyers in the legislative/governing process.

    When Paine writes ” . . .(t)he correct, ethical role for lawyers . . . “, I get triggered. Had he written ” . . . for people . . .”, I’d be happy. I’m probably too easily triggered.

  • Mr Ed

    Then came the churches, then came the schools, then came the lawyers, then came the rules.’

    Mark Knopfler, Dire Straits, Telegraph Road.

    (Ironically, about Detroit, apparently).

  • Laird

    bobby b, I don’t disagree with anything in your last post (July 14, 2017 at 2:21 pm). My only quibble is with your last paragraph. You are certainly correct that such is the correct ethical role for all people, lawyers or not. But in his essay Tom Paine is writing specifically for and about lawyers (and the end of that sentence deals specifically with their obligation to their clients), so it’s only logical that this sentence should be about lawyers only. So yes, I think you are too easily triggered.

  • Thailover

    Ayn Rand would tear this quote to shreds. Since when is self serving to act against principle? What principle is to not be self serving? Ah yes, the “Otherism” that threatens to destroy every age in and of itself. Whilst attacking organied religions, Tom Paine still managed to pretend that selflessness is a virtue and sacrifice an ideal.

  • Rich Rostrom

    Why is party interest necessarily at odds with principle? Arguably, party loyalty is a principle.

    Parties form so that groups of people with common goals can pursue those goals better than as an amorphous blob of individuals.

    If one benefits from the strength of the party in advancing many things one wants, then it may be proper to sacrifice on some issues, rather than see the party fall, and get nothing. Also, of course, other party members may reciprocate – conceding on issues where they differ with one.

    The strength of a party is in the loyalty of its members. If one wants one’s party to be strong enough to enact one’s program, one should contribute to its strength.

    Obviously this can be an excuse for cronyism or worse, but the opposite path also leads to failure.