All Commentary
Saturday, January 1, 1994

Mr. Dickens Was Right

The Law Reflects Its Society

Ridgway K. Foley, Jr., is an attorney from Portland, Oregon.

“‘If the law supposes that,’ said Mr. Bumble. . . ,

‘the law is a ass—a idiot.’”

Oliver Twist (1838)

Charles Dickens’ disdain for law and lawyers was well known, well founded, and sharply pervasive. Mr. Tulkinghorne and Uriah Heep provide spirited examples of wretched men performing vicious acts, and even Sidney Carton displays unpleasant and unlovely traits despite his heroic martyrdom for his beloved. The system fared no better: Bleak House portrays the epitome of greed, delay, and destruction in a juridical system conceived to afford speedy justice. Thus, when the great nineteenth-century novelist urges the unfortunate Mr. Bumble to utter his dictum of frustration, readers 150 years later recognize the depth and ferocity of Dickens’ contempt and concern.

English law and the English legal system had deteriorated into little pockets of malevolence, spite, and injustice in the first half of the nineteenth century. Dickens’ early days as a reporter and observer, and his father’s experience with the tender mercies of debtors’ prisons, may have colored the writer’s opinion, but those experiences, observations, and feelings were neither incorrect nor necessarily overstated.

Are we able to discern any significant improvement in things legal and judicial a century and one-half later? Is the law approaching the goal of just resolution of disputes in a free society, or is it still “a ass, a idiot”? On my first day in Property class thirty years ago, a little Boston-Irish professor with a droll sense of humor addressed us thus: “Gentlemen. Dickens says that the law is an ass; try not to make it more of an ass than it already is.” Unfortunately, my generation did not heed Richard Kelley’s wry wisdom: we and the rest of the American political/legal/social structure have created an ass of gargantuan proportions, one which shows scant signs of going on a diet of rationality and good sense.

Do I overstate my case? I think not, and my suspicion is fueled more by experience and observation than by rough “lawyer jokes” which have recently replaced “blonde jokes” and “Polish jokes” as the enlivener of dull parties. To support my thesis, I dredge the following three examples not so much from a fevered or fertile mind, as from the dregs of the daily and legal press (augmented by courthouse gossip) where they reside for all to see but few to contemplate.

First case. In a drug-infested urban neighborhood pockmarked by commonplace gunfire, a denizen of a rented house sometimes used for the illicit drug trade fires at his enemy. He misses his target, but the bullet strikes and kills a sleeping baby in a neighboring home. The nineteen-year-old gunman—owner of a record of violence stretching back almost a decade—expresses the usual remorse, pleads guilty to manslaughter charges, and receives a prison sentence of eighteen months, soon to be shortened by overcrowding and putative good behavior. Restitution? Don’t be silly! He has spent every dollar he can beg, borrow, or steal (did someone mention work?) on his form of high living and self-destruction.

The grieving parents of the unintended victim vent their understandable anger by a lawsuit—against the absent and uninvolved owner of the property from which the fatal shot was fired. Amid allegations of “landlord’s liability” and high moralizing about “duties to society,” let us look at the real world.

Assume that the owner knew that his property might be used for illegal activities. Could he refuse to rent to tenants who disobeyed the law? Of course not! Could he dispossess tenants who had been convicted of a crime? Haven’t you heard about anti-discrimination laws that force us all to love even the unlovable and dangerous? Could he have complained to the police? As a matter of fact, he had in this case, as had his neighbors, all to no avail. After all, the police receive scant help from the community and virtually none from the legislative, judicial, and other political branches of government. Indeed, in many blighted urban areas, the politicians and police have invented a fools’ gold called “community policing,” which recognizes the failure of the state to carry out the single task for which it is (theoretically) fitted.

In fact, the landlord could do nothing to prevent the crime, yet he was chosen to pay for the wrongs of another, evil deeds the law absolutely barred him from preventing. And, by the way, why did the victim’s parents avoid legal responsibility? Why didn’t they complain to the authorities about the drug house, if drug house it was? Why didn’t they organize community cleanup and neighborhood watch programs? Why didn’t they move from a danger zone? Why didn’t they purchase first-party insurance covering life, health, and disability?

Second case. The scene shifts downtown to City Hall. Actually, “City Hall” constitutes a mere figure of speech in most of our metropoli: government buildings abound, costing untold millions to maintain. In any event, a city planner bent on the city business of planning ordinary folks out of house and home mounts a city vehicle and, while driving down a city street in a decidedly and habitually reckless manner, runs over an elderly woman who is insufficiently fleet of foot to avoid the careening car.

Outraged, the victim’s ancient spouse and her surviving grandchildren bring an action against the city planner and his employer, the city, for wrongful death caused by his negligent acts committed in the course and scope of his city employment.

Guess who pays? All of you who selected “Uncle Pungle” a/k/a innocent, hardworking, and sober taxpayers, step up and claim your gold star!

Does the drunken planner pay? Don’t ask silly questions in class. Chances are his assets are shielded by law and, in any event the city has furnished him with “first dollar” liability insurance coverage. He doesn’t even pay any premiums. Another city-owned vehicle will be furnished to him while the accident damage is repaired. He will draw his city pay—generally in excess of the market rate for comparable services—during discovery, trial preparation, and trial. The city-paid insurance will provide the lawyer and the legal defense and, if the victim’s family receives a final judgment, the insurance policy will pay the indemnity. If the judgment exceeds the policy limits, the city will make up the difference.

But surely, the unreconstructed (“deconstructed” might be more apt in the land of political correctness) will say, this careless and reckless city planner will at least suffer the loss of his position or some strict employment-related penalty. Visit the real world. In most venues, it is highly unlikely that any municipal administrator would try to punish for such an incident. Any attempt at discipline, even of a habitual offender, will meet with legal barriers which protect public-employee rights and virtually assure that no diminution of salary or loss of position can occur. In addition, powerful union support will tether any supervisor so bold as to chastise the errant planner. In short, his position remains secure, his pension vested, his power untrammeled.

As for the employer-city’s vicarious liability, it is identical—with one significant exception—to that which plagues the private businessman or woman under the failed doctrine of respondeat superior (the employer, or “master” in the common law, is responsible for the civil wrongs of his employee, or “servant,” committed within the course and scope of his employment). The employer must bear the burden of all liability for his employees’ actions which are related to the workplace—in most instances even if those actions are intentional and malevolent.

There is one marked difference between public and private employers in this circumstance: The public body does not pay any of its own money to recompense a wrong. Thus, the public employer does not even suffer a deterrent akin to that which encourages the private employer to take more care. Public institutions produce nothing; they take and receive; they do not create and produce. “Public funds” constitutes a misnomer: All funds, assets, and property owned by a public institution derive from value created by individual effort and coercively removed from the creative individual. Thus, when the city buys insurance for the reckless planner, and when it pays indemnity for his actions, it is using funds taken by compulsion from the unwilling and uninvolved citizenry; since it possesses no property of its own, it cannot expend its property in payment of any debt or judgment. Thus, the costs of the wrongful death in this example are visited upon men and women who have no role in the cause of the accident and no choice in the matter of payment.

Third case. A brouhaha periodically arises concerning governmental funding of artistic endeavors under the auspices of various and sundry arts commissions. There exist many of these fund-spenders, at virtually every level of government. They masquerade under manifold brands and appellations, and many of them receive significant endowments from the federal government. They share a common attribute: They are governmental or quasi-governmental bodies possessing the power of compulsion.

Each intermittent flap exhibits a common thread. Angry senators or councilors rant and rave across the aisle: Senator Tweedle-dee objects to the payment for obscene, vulgar, prurient, and blasphemous sculptures and drawings; Senator Tweedledum arises ponderously in favor of “freedom of expression” and the need for “diversity.” When the forces of semi-decency obtain a beachhead, the arrogant administrator or director of the commission walks out with great fanfare, proclaiming victory for the forces of reaction. He proceeds directly to the lecture tour and/or publishes a book, pontificating in public about those who decry absolute license, seething because he feels that he has been mistreated and misunderstood, and moaning that culture has been cast backward into darkness.

Judging by newsprint and television, few if any constituents grasp the fundamental issue which demonstrates the vapidity of Tweedledee, Tweedledum, and the administrator/director: No government has any legitimate business spending a sixpence on any kind of”art,” or upon any like project! I personally agree that much of what is currently at issue could not be said to represent “art” in any traditional sense, and that a great deal of it is odious. But that is not the point: The point is simply that anyone who wishes to draw dirty pictures should be permitted to do so, but he most decidedly should do so without forcing you, or me, or anyone else to support his enterprise. The vaunted right to free expression does not encompass the right to compel others to fund that expression.

Of course, the artistic imbroglio will not end here, precisely because no one in authority will center on the crucial issue. Often, some disgruntled “artists,” peeved that their “work” has been passed over for prizes and payment, sue the sponsoring or responsible governmental body for recompense. All too often, these cases are settled and, as in the instance of the negligent city planner, the unhappy but hardly starving artist will be paid with monies taken by compulsion from unwilling and innocent taxpayers.

Why Has the Law Regressed?

A parade of horribles is just a horrible parade unless we make meaning out of it. Why has the law declined and deteriorated from a promise of justice to an object of scorn? Why, in a time of “great progress,” if we believe the pundits, has the law regressed or at least failed to improve since Mr. Dickens wrote Bleak House and Oliver Twist?

Since the law writ large has become a bit of a bad joke, perhaps we can find a glimmer of an answer in the comic strips. In his clever satire “Pogo,” Walt Kelly occasionally had his little swampland creatures announce that, “We have met the enemy, and they is us !” I suggest that we commence our quest for the answer to our inquiry from that guidepost. Perhaps we can pass the fault around like a piece of birthday cake.

“Law,” in the sense under consideration, refers to “positive law,” rules and orders issued by a sovereign state, controlling or sanctioning its inhabitants. It remains to another day to analyze “Law” in its Natural Law meaning, and to measure the positive law against the Natural Law and the promise of the common law. For purposes of this exposition, we limit law to its positive law connotation since it is there that evil dwells.

Far from being some majestic projection from above, law arises from, and reflects, the society it governs. In its best sense, it develops to serve the needs and desires of that society, and it performs the useful functions of settling disputes, channeling conduct, establishing necessary rules of order, and preventing/punishing aggression. Law is not some arcane and mystical god apart from the inhabitants of a state; it is born and bred by those very inhabitants, and it partakes of the failures and successes, the evils and the promises, of that society. Given that fact, Pogo’s aphorism seems appropriate: the law is an ass because we whom it is to serve have caused it to be an ass, and have fed it sufficient rubbish that it has grown into a very grand ass.

Examine some of the trash which sustains this law which we now deride.

First, a prevalent behavior of envy and greed prevails throughout all the land: Envy of the successes of another and his just rewards, and a greedy predilection to take by “legal force” that which another created and possesses. The vast majority in the United States covet constantly: they covet their neighbor’s wife, his automobile, his home, his job, his income, his success. They envy him those things, and they have found a neat little way to take them away from him, and to bring him down a peg in the bargain. They gather with like-minded envious and greedy souls, they gain control of the political apparatus, and they pass laws which enable them to take from others that which they covet. If the owner objects, the law will sanction him: after all, you can’t argue with the law. And, of course, it is much simpler to do evil deeds anonymously, under the mask of the law.

Second, the concomitant decline and disintegration of any substantial moral standard has turned the Western World topsy-turvy. Commandments eight and ten of the Decalogue have long admonished us not to steal or covet; most of the world’s longstanding religions have similar tenets. Now it is fashionable to steal and covet constantly, although we do not call it that when we operate under the shadow of the law. The abolition of any serious standards calls to mind a need to invoke the curse from the service of commination (a recital of Divine threats against sinners) in the traditional Book of Common Prayer: “Cursed is he that removeth his neighbor’s land-mark.”

But the deconstruction and disintegration of moral values devour far more than some old- fashioned rules against theft and envy. Rather, the Occidental world more and more resembles those parts of the Middle and Far East in the accepted vision of human worth. The Western tradition valued—at least by lip service—each individual human being. Each man, woman, and child was a creature of intrinsic worth, and each life was a gift never to be taken lightly. In the United States, for example, we fought our bloodiest and most costly war in an attempt to eradicate the legal concept that one man might own another! Thus, the essence of human nature, the ability to choose meaningfully, was revered and protected by the law. This is no longer so. Some odd concept of an organic social order has become an overriding good to which mere individuals may be sacrificed with impunity, for the “greater good of society” of course. Individual human life declines in value with the deconstruction of classical moral values and traditional standards.

Third, man’s inability or unwillingness to reason has increased with frightening speed. At a time when know-nothings prattle about “the best educated society in the history of the world,” far too many of us refuse to make the effort to think for ourselves. It is much easier, in a culture dominated by fools and drugs, to leech off the past for material wants and to absorb the output of a national television addiction in place of cognitive activity. The result is frightening: Pre- reflective thinkers pass on misinformation or disinformation until it becomes adopted and cherished as common wisdom. No one dares or cares to tell the emperor that he forgot to put on his trousers. Society begins to resemble the mob to which it can so easily degenerate: Each person or sector repeats the lie of common wisdom in more shrill and grim tones, until the din becomes unbearable and any who would argue the issue is damned as a knave or a fool. And, in a society quickly losing its grip on the essential worth of the individual, it is a short hop to casting dissenters into the pit, or burning them at the stake, or, as is more likely today, to “re-educating” them by use of drugs, electric shock, peculiar group therapy, and other revisionist training spectres. Nothing like a little shunning, mockery, or torture to abort dissent or protest.

In summary, the law reflects its society. In a world gone mad with concepts of egalitarianism and entitlement, it is small wonder that the legal system has substituted grab bags and histrionics in place of any concept of equal treatment and reasoned justice. In a nation which has inculcated generations with an abhorrence of personal responsibility, it would be surprising indeed if the law imposed liability only upon causative actors possessing a real opportunity to alter the course of destiny and avoid harm to another.

Given this state of affairs, one might pray that the literary wraith of Mr. Dickens would bring forth a late twentieth-century version of Oliver Twist or Bleak House and thus ridicule us into recognition that the law—and our society—has become something base, homely, and impure. But would we read and heed the lesson of such a scribe?

  • Ridgway K. Foley Jr. is a litigation lawyer who is passionate about individual and economic freedom, and has authored numerous scholarly articles on related subjects.