John G. Simon
BAMSL President, 2018-19
Managing Partner, The Simon Law Firm, P.C.
Originally published in the March 2019 issue of the St. Louis Lawyer magazine. View in the archives.
What would it be like to have no meaningful access to the legal system, no remedies for many wrongs and a highly constricted version of justice?
Imagine life without lawyers.
To make this question more vivid, let’s take a journey to an imaginary place where all lawyers suddenly faded away. Imagine that lawyers, instead of doing legal work, become ghostly spectators much like George Bailey, who was forced to see how Bedford Falls would fare without him. I can imagine hearing some sardonic chuckles at this point, but please hear me out.
Protection of Property, Health and Lives
What if you were a business owner and a corporation unfairly raided your company? Who would you turn to in a world without lawyers? What if your health insurance company stiffed you? What would you do? Perhaps you would try to start a boycott of these companies or maybe you would complain on social media. These would be extremely impoverished versions of “justice,” however.
What if the state threatened to take away your children based on false information? What if someone destroyed your reputation through lies? What would you do if an intoxicated truck driver paralyzed your spouse? Truly, what would people do if there were no lawyers? What if you tried to represent yourself in court, but you were being denied a meaningful hearing? In this Kafkaesque world where there were no lawyers, who would fight for your right to be heard? For serious wrongs, many people would be tempted to lash out in violence, but that is not the type of world in which most of us would like to live.
In this imaginary society without lawyers, what would you do if someone carjacked you? You might be thinking that you would call the police but remember—there are not any lawyers in this society, meaning that there are not any prosecutors. Even strongly worded criminal laws would not have any teeth. Without lawyers, carefully drafted laws would only be good ideas and aspirations, mere scribbles on a page.
Consistency is extremely important to all of us, even where stakes are not high. Would you invest even a couple hours of your time watching a sporting event where you knew that the rules of the game would not be fairly enforced?
What if the stakes were much higher? What if you were fortunate enough to have some money to invest? Would you invest your hard-earned money in a society where there were no lawyers to systematically enforce the laws regulating investments? Would you invest in a stock market where unscrupulous profit-takers were running amok? In such a society, who would you call when you suspected insider trading or when you suspected that management was ripping off the shareholders?
Would you ever start a business in a society where contract disputes were resolved ad hoc or not at all? In this imaginary society where there were no lawyers, would you trust any high-stakes contract such as a long-term loan? Would you work hard as an innovator if you had no one to recoup your losses for you if someone infringed on your intellectual property?
In a society without lawyers, would you have confidence to invest in any real estate? Would you even invest money to buy your own home, given that it could be taken from you? To what extent would consumers purchase goods or services, given that there would not be any lawyers to enforce the broken promises of the disreputable merchants?
The dystopia I am describing is one where the whole would be far worse than the sum of the parts. Where lawyers do not exist to enforce the rule of law, the resultant damage would permeate the entire society in numerous ways that would repel investment. We would see high prices for low-quality goods, inefficiencies on mass scales, low incentives for technological innovation and a bourgeoning shadow economy with ever more unscrupulous methods of enforcement.
Shakespeare’s line from Henry VI, “The first thing we do, let’s kill all the lawyers,” was a backhanded compliment to lawyers, who were seen as critical for upholding social order. This is still true today. Even if we do not know how to force all people to act morally, bad actors often do seem to understand the threat of a lawyer bringing a lawsuit and this forceful pushback has resulted in a robust social and commercial flourishing.
Who would you call if politicians threatened to sanction you for criticizing their poor performance? Who would you call to help you if someone threatened to take away your right to vote, gather or worship? Who would even the playing field if the government shut down newspapers? What if the government threatened to take away your right to birth control or your guns? What other options would be available to you if the legal profession were not available to fight these fights?
Maintaining a social order in the context of a democracy involves a constant stream of complex conversations that can become contentious. When lawyers work hard to give voice to unpopular causes, and to those who are disenfranchised, they help to make abstract principles vivid, coherent, and ripe for a more productive discussion. By taking on tough cases, lawyers shed light on the core principles of our democracy. This work is done by real-life lawyers such as Clarence Darrow, Thurgood Marshall and Bryan Stevenson, author of Just Mercy: A Story of Justice and Redemption. Also important are the lawyers portrayed in moving works of fiction, such as Atticus Finch. Without lawyers, civil discourse would atrophy and we would lose critically important narratives that would have inspired the work of future lawyers.
The Bottom Line
Our society has become extraordinarily complex. Because of this, we often ask our legislators to pass new laws to protect our property, our livelihood and even our lives. We pass these laws under the assumption that these laws will actually be enforced, but laws are not magically self-enforcing. At its best, our profession serves a high calling of ensuring that our laws have consequences. Lawyers do this by stepping into the middle of difficult disputes and working hard to resolve them peacefully.
Yes, if all lawyers suddenly disappeared, there might be some initial cackling, but that would soon turn to silence and then to widespread panic. A society without lawyers would be as paralyzed as a society without any laws, and the stakes could not be higher. As Robert Cover famously wrote, “Legal interpretation takes place in a field of pain and death.” This is often literally true.
When we are at our best, we are advocates for our own clients but also cognizant that, as a profession, we are also serving society as a whole. When we maintain a focus on the broader social importance of the legal profession, we also help satisfy the universal human craving to become part of something bigger than one’s self.