In her January opinion article, For most
Americans, our system is a failure, Esther Lardent raised the tantalizing notion
that the American judicial system might be fundamentally reformed. It is certainly beyond
debate that the judicial system has become, in her words, the point of last resort
for a wide range of painful and complex personal disputes. In merely pointing out
that indisputable fact, Ms. Lardent could launch a valuable re-examination of the systemic
features that have brought about that state of affairs. Her unstated assumption is that,
as a matter of public policy, courts should not fill that role. While I agree with that
assumption, it warrants examination and thorough debate something that seems
unlikely to occur any time soon.
One of the facts of life, which militates against any comprehensive
re-evaluation of the American legal system, is the philosophical foundation on which the
American legal system rests. For at least 100 years, American lawyers have been trained in
legal positivism. First-year law students are advised within a week of arriving at school
that they are not there to learn about right and wrong or even fairness, but about
reasonable expectations. That beginning principle is subtly refined with an equitable
gloss that proposes that there is no wrong without a remedy. But that very formulation of
the debate begs the question: What is a wrong?
Lardent asks whether the best course of action might not be to change the focus of
American law away from due process to outcomes seeking a decision which is fairer
and better. But to ask the question is to answer it. Who will judge what is fairer
and better and by what standards? Whose standard of fairness will govern? In our
post-modern world that rejects any absolute truth, where is the moral compass that will
point to the true North? In the past, general consensus formed a center around which law
and freedom could rotate. That center of cultural character and affirmation of truth was
vital to the preservation of our society of law and freedom. But in our world, the center
is gone there is no real consensus. Pollsters report that two-thirds of Americans
do not believe in moral absolutes or in absolute truth. That poses the dilemma: If there
are no absolutes, no Pole Star, how does one reach decisions that are fairer and
In the absence of a
meaningful cultural consensus about right and wrong, law and individual freedoms compete
to fill the vacuum left by the collapsed center. David Wells in Living our Virtue captured
the problem: The result is that fires of license are stoked constantly by our
growing moral relativism and by our individualism, but at the same time they have to be
constantly doused lest they engulf our society. We therefore have to resort to law and
governmental regulation to contain what we have unleashed. What was once an open space
between law and freedom, one governed by character and truth, is now deserted, so law must
now do what character has abandoned.
When Ms. Lardent argues that many lawyers want to exchange the
gladiator role for that of problem-solver, she undoubtedly is focusing accurately on the
desires of many in the legal profession. But imagining that we can abandon, or even
refocus on the adversarial system in favor a new model without a concomitant rethinking of
the underlying philosophical underpinnings of the entire system offers an illusory hope
which will ultimately disappoint.
Ms. Lardent has opened the discussion. The next phase should be a
serious and principled discussion of how to redevelop cultural consensus around
fundamental issues of right and wrong oughtness, if you will.
Stephen W. Reed is partner
in Reed & Brown LLP of Pasadena.