I am very grateful to all the good people who are writing to me about Little Max. I wrote this some time ago (here, matter of fact), but I think it bears repeating:
THE GUILD AND THE GATE: HOW THE LEGAL PROFESSION TOOK THE LAW AWAY FROM THE PEOPLE
By Hal von Luebbert
Nearly four thousand years ago, a Babylonian king carved the purpose of law into black stone and set it in the public square. Hammurabi wrote that he had been called “to cause justice to prevail in the land, to destroy the wicked and the evil, to prevent the strong from oppressing the weak.” Even older Sumerian codes, those of Ur-Nammu and Lipit-Ishtar, served the same end. Law existed to protect the widow, the orphan, and the powerless from the powerful.
Two thousand years later, Cicero taught Rome that a republic is the property of the people, and that those who administer public affairs must see that “private men are never deprived of their goods by public acts.”
Hammurabi’s likeness is carved into the wall of the United States Supreme Court’s courtroom, among history’s great lawgivers. The people working under that carving seem to have forgotten what he stood for.
The law was supposed to belong to the people. It now belongs to a guild. Lawyers draft the statutes. Lawyers sit on the bench. Lawyers write the rules of procedure that decide whether a citizen’s complaint is ever heard. Lawyers run the bar that decides who may practice. And lawyers enforce the “unauthorized practice of law” rules that forbid anyone outside the guild to help a neighbor through a courthouse door. No other profession writes its own rules, enforces them, judges them, and licenses itself all at once.
The 3 percent and the 97 percent
Pro se plaintiffs, the citizens who come to court without a lawyer, win roughly 3 percent of federal civil cases. Litigants with lawyers settle or prevail far more often. The 97 percent who lose are not losing because they are wrong. They are losing because they cannot pay for right. In the “Nation of Laws,” access to the courts must be bought.
Then come the doctrines. Qualified immunity, which shields officials who violate constitutional rights, appears in no statute passed by Congress. Judges created it. Judicial immunity protects the judges themselves. The lawyer's guild has written its own armor and called it law.
From the wrong side of the gate
I am 90 years old. When the City of Lubbock destroyed my dog Max, no lawyer would take my case, and I could not have paid one if he had. Against me stand the City Attorney, his deputies, and more lawyers besides, all paid with public money, including mine. My filings have been returned, delayed, and ignored. The procedural traps a licensed attorney steps around without thinking are laid in the path of a citizen who has only the facts and the truth.
It was not always so. Abraham Lincoln learned law by reading books by candlelight. For most of American history, ordinary citizens served as justices of the peace, and Texas still allows it. A law that only a licensed professional can navigate is not a law of the people. It is a toll road.
Reform does not require abolishing lawyers. It just requires remembering whom the courts serve. Procedure should be plain enough for a citizen to follow. Every filing from a citizen deserves to be treated as a filing. Trained non-lawyers should be allowed to help with routine matters. And judge-made immunities should face an honest vote by elected legislatures.
Hammurabi put his law in the public square so that the weak could read it and hold the strong to account. Four thousand years later, the strong have moved the law indoors and locked the door.
I intend to keep knocking, that's all - and to the day I die.