The Use and Misuse of Law* After four years of intensive study of law, I hope you have come

to the certain conclusion that you have yet to know what law is all about. As well observed by a legal commentator, one of the oldest questions in the philosophy of law concerns the very subject of the study: what is law?[1] Differentiating between science and philosophy, the venerable Bertrand Russel said science is what we know, philosophy is what we dont know. For centuries, various schools of legal philosophy have contended for dominance in the market of ideas. With your leave, let me give you a quick rundown of these major schools of legal philosophy. First, we have the school that teaches natural law. It was Aristotle who planted the idea that there is in nature a common principle of the just and the unjust that all people, in some way divine, (discern) even if they have no association or commerce with each other.[2] They aver that man can know, through the use of his reason, what is in accord with his nature and what is in accord with this nature is what is good. It was, however, St. Tomas Aquinas who, in his monumental work, Summa Theologica, placed natural law within the context of divine law and as part of Gods design. He pointed out that through reason and with the aid of revelation, we can decipher natural law.[3] Then we have the school of philosophy known as legal positivism, proffered by such towering intellectuals as John Austin, Hans Kelsen, H.L.A. Hart and Joseph Raz. All positivists share two principal postulates: first, that what counts as law in any particular society is fundamentally a matter of social fact or convention (the social thesis); second, that there is no necessary connection between law and morality (the separability thesis). This separability thesis sets them apart from the proponents of natural law.[4] Then we have the school of philosophy known aslegal realism which was led by American law professors and lawyers including Karl Llewelyn, Jerome Frank, Felix Cohen and others. According to their philosophy of law and adjudication, judges decide cases according to how the facts of the cases strike them and not because law requires particular results: judges are largely fact responsive rather than rule responsive.[5] Then we have the contending

school of thought championing sociological jurisprudence whose most eminent priest is Roscoe Pound. For Pound, law is an ordering of conduct so as to make the goods of existence and the means of satisfying claims go around as far as possible with the least friction and waste. He crafted the term social engineering which espoused the proposition that law is shaped by social ends.[6] And lastly, we have the Critical Legal Studies movement, which gained momentum in the 1970s. Its followers are united by their commitment to a more egalitarian society. They use insights from social and critical philosophy. They assert the inescapability of commitment and reject the x x x search for value neutrality[7] I dare not advise you which legal philosophy to adopt. All these legal philosophies have distinct merits of their own. Your social, cultural and religious background and bias will largely determine which philosophy will attract you. But whatever philosophy will light your path, I assure you, you will fare better in life with one rather than be without any. True cases will illustrate how the history of man has been changed by the advocates of these different legal philosophies. Allow me to begin with the adherents of natural law. Perhaps this is the oldest of the legal philosophies. It can be traced back to Socrates, Plato and Aristotle, propounded by the Stoics, developed by medieval churchmen like Aquinas, elaborated in secular terms by Protestant jurists like Grotius and Pufendorf and reshaped to justify natural rights by Locke, Montesquieu, Jefferson and Adams. With these intellectual giants championing natural law, it is no source of wonder that this school of legal philosophy has guided and still guides mans search for justice. To be sure, Hitler and the Nazi criminals would have made a mockery of justice for Hitler controlled the parliament and their acts were in accord with law. They were in accord with law but in discord with natural law. It was natural law that condemned them. I quote the following observations: During the Nazi period in Germany, all attempts at passive and active resistance to the regime were necessarily grounded on natural law, ideas or divine law x x x. After the war, the Courts of the Federal Republic of Germany x x x

recognized the necessity of universal higher standards of objectively valid supra-positive principles for the lawmaker and relied on natural law in punishing actions that were legal under the Nazi regime x x x. In rejecting the defense of accused physicians that their killing of prisoners in medical experiments had been authorized by the laws of Third Reich, a court ruled that law must be defined as an ordinance or precept devised in the service of justice. Whenever the conflict between an enacted law and true justice reaches unendurable proportions, the enacted law must yield to justice and be considered a lawless law.[8]

Or consider how todays greatest and most advanced country the United States was thrown into civil war because of the wrong understanding of its fundamental law no less than its highest court. I am referring to the Dred Scott case decision, which has been denounced as the most thoroughly perverse and reprehensible in judicial history[9] Let me fast forward the facts of the Dred Scott case. Scott was the black slave of Dr. John Emerson, a surgeon in the US army, who in 1834 took him from the slave state of Missouri to the free state of Illinois. In 1838, they returned to the slave state of Missouri and his master, Dr. Emerson died. Dr. Emerson left all his property to his wife, in trust for his child. His property included his slave, Dred Scott. The trust arrangement involving Scott became a problem as Mrs. Emerson planned to transfer to Massachusetts, a free state. So she gave Scott to a certain Mr. Taylor Blow, who did not know what to do with his new property. Fortunately or unfortunately, Mr. Blow sought the advice of the law firm of Field and Hall. As expected, the lawyers said, let us go to court, and they filed a suit on behalf of Scott, who hardly knew the implications of the case to the nation. They argued that Scott had become free since he has been brought to states where slavery had been abolished. In the meanwhile, Mrs. Emerson, who has a trained eye for doctors, married another doctor, Dr. Calvin Chaffee of Massachusetts, a representative in Congress. Congressman Chaffee, who was an outspoken opponent of slavery, suddenly found himself a slave owner. To avoid politically embarrassing her new husband, Mrs. Emerson transferred the ownership of their slave Dred Scott to her brother by the name of John Sanford. Thus, the case is entitled Scott v. Sanford.

As fate would have it, it fell on CJ Roger Brooke Taney to decide the transcendental case. By all standards, Taney was not a mediocre justice. In 1836 he succeeded the legendary John Marshall of the Marbury v. Madison fame as Chief Justice of the US Supreme Court. He was one of the best lawyers of his time, served successfully as Attorney General of Maryland and of the United States, and was a close confidant of President Andrew Jackson. He wrote some 250 opinions and after 20 years in the High Court, he had gained a reputation, which could rival that of CJ Marshal. His decision in the Dred Scott case, however, caused his free fall from grace. In a decision that caused weeping and gnashing of teeth, the majority of the US Supreme Court led by CJ Taney, ruled that Scott, as a slave, belonged to an inferior class of beings and could claim no right. I quote the relevant ruling: They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.

In short, the Court considered a living person endowed with natural rights as a lifeless property bereft of any right. Historian David Blight interpreted the Scott decision to mean that to be black in America in the late 1850s was to live in a land that said you didnt have a future. Rev. Henry Ward Beecher, whose sister Harriet wrote Uncle Toms Cabin, said that CJ Taney outHerod Herod himself. If the people obey this decision, he warned, they disobey God. To be sure,CJ Taney anticipated all these brickbats. In his ponencia, he washed his hands by holding that it is not the province of the court to decide upon the justice or injustice, the policy or impolicy of these laws. Obviously, CJ Taney shut his senses to the higher laws of man and God. The consequence was tragic. Law lost the opportunity to bring justice to the American people - - - a bitter and bloody civil war did. Those in favor of slavery scored a legal victory but it was a victory worse than a defeat.

Oliver Wendell Holmes, Jr. turned sixteen when CJ Taney announced the Dred Scott decision. Holmes fought in Taneys civil war and during his three-year enlistment in the army, he sustained three wounds the first in the chest, the second in the back of his neck and the third in the heel of his foot. Little did Holmes realize that later in his life, he would don the robe of Justice of the US Supreme Court and that he would be confronting again the role of wealth and the function of property in society although in a different context. As we know, the Industrial Revolution brought us unprecedented progress but it also aggravated the problems of the marginalized of society who found difficulty adjusting to the march of modernity. Their poors descent to lifes bottom was exacerbated by World War I and the economic depression that ensued. Labor and the little people needed a lot of legal protection from their exploitation by big capital. Labor received widespread support from the state legislatures that enacted beneficial laws to improve the working conditions of the poor employees. Big capital was not to be outdone. To protect their property rights and prosperity, they shifted the venue of their battle from congress where they failed to win the sympathy of the elected representatives of the people to the courtroom manned by judges, who were unelected by the people. This was the setting of the famous case of Lochner v. New York, 198 US 45 (1905). In a 5-4 decision, the US Supreme Court invalidated a New York law that sought to protect the essential health of bakers by outlawing their employment for more than 10 hours a day. In a precedent setting ruling, it held that the law violated the substantive due process clause of the constitution because it was an unreasonable, unnecessary and arbitrary interference with the right of the individual to . . . enter into those contracts in relation to labor which may seem to him appropriate or necessary. The right to contract was elevated to new constitutional heights and as the US Supreme Court refused to redress the inequality of power between bakers and their employers, it adopted the Social Darwinist shocking view that it is wrong and useless for government to interfere with the process of natural selection, through which the strong will succeed and the weak must perish. In a strong dissenting opinion, Justice Holmes objected to the adoption by the court of the views of Herbert Spencer, a prominent Social Darwinist. In memorable words, Holmes declared that a

constitution is not intended to embody a particular economic theory, whether of paternalism . . . or of laissez faire. He added that liberty is perverted when it is held to prevent the natural outcome of a dominant opinion. In upholding the right to contract, nay the right to property of the prosperous employers, it was obvious that the High Court ran roughshod over the right to decent life of the poor employees. The anti-labor aspect of Lochner, however, was not to last. The Courts unprecedented use of substantive due process to invalidate laws in favor of labor brought it to a confrontation with President Franklin Delano Roosevelt and resulted in the New Deal constitutional crises of the mid 30s. After his reelection in 1936, President Roosevelt proposed a court packing plan that would allow him to appoint a new Supreme Court Justice for each incumbent who was 70 years old and had served ten years in the Supreme Court. The plan would have provided President Roosevelt with six new appointments. It was his way of getting even with the 9 old men of the US Supreme Court. The plan, however, drew a lot of criticisms and failed to generate support even from Roosevelts supporters. Nonetheless, the High Court junked its Lochner ruling in subsequent cases as it refused to invalidate key New Deal laws like the National Labor Relations Act and the Social Security Act. In line with Holmes dissent, the High Court followed a policy of extreme judicial preference to economic legislations. The era saw the rise and prominence of sociological jurisprudence of Holmes, Brandeis, Cardozo and Pound. I took pains in jogging your memory about the Nazi cases, the Dred Scott and the Lochner decisions because they demonstrate how law can be misused. They show that its misuse is worse when made by the best and the brightest, and worst, when directed against the poor and the powerless. I stressed the Dred Scott and the Lochner decisions because they concern the struggle between rich and the poor; they concern our ideal of an egalitarian society and our fight for social justice. They will be your concern in this world where globalization is the continuing buzzword. They bring to mind Jesus Christs two principal concerns in His brief sojourn on earth. If you look at His life, Christ exerted His best efforts first, in explaining to the

experts in law how to interpret the law with justice, in accord with Gods purpose, and second, in explaining to all but especially to the rich, how to be saved. As the Book of Life reveals, it was the misuse of law by the legal experts that sent Christ to the Cross. It also tells us that Christ succeeded in converting every kind of sinner, except one, the rich, young ruler. The rich young ruler obeyed all the laws, but when he was told he had to give up his wealth to be saved, he refused. He was so unlike Ignatius who offered all to the Lord saying in his words, Take Lord, receive all my liberty, my memory, my understanding and my entire will, all that I have and possess. You have given all to me. To you Lord, I return it. In a few minutes, you will walk out of this hall as part of our educated elite --- as certified intellectuals. I am not sure how long you will be happy with your new found knowledge. The great guru Socrates never felt happy about his stock of knowledge, however overpowering and piercing his intellect was. In fact, Socrates disclaimed any knowledge when in one of his usual burst of genius he said: As for me, all I know is that I know nothing. To be sure, humility set apart Socrates from the intellectual giants, then and now. Humility is a virtue espoused by all worthwhile religions and moral movements. Thus, the Hindu scriptures tell us to forget all the wordly knowledge that you have acquired and to become as ignorant as a child if you want to get divine wisdom. Confucianism advises us not to be concerned that we are unknown but to be concerned with being worthy of reputation. Taoism teaches us to forget conquering others and to remember conquering ourselves stressing that he who wins over others may be strong, but he who conquers himself is mighty. Christ was equally explicit when He counseled let us never strive to be greatest in this world rather let us strive to excel ourselves and do more good than we have done. In fine, the acquisition of knowledge should not be an end to itself. Some say knowledge is power and I agree. But there is more wisdom in the reminder that knowledge is power only under three conditions: first, if it is knowledge of things worth knowing; second, if it is known by a person worthy of using it; and third, and most important, if it is used for a worthy purpose.

Let me therefore emphasize that there is no glory in the mere accumulation of knowledge; there is no grandeur in being a mere repository of ideas; there is nothing worthwhile in being a mere encyclopedia of inert information. If there is any profession that has been maligned since time immemorial, it is the legal profession. 2000 years ago, Seneca accused lawyers as smothered by their prosperity. Plato condemned them for their small and unrighteous souls. Today, there is a strong public perception that the legal profession has lost its fine sense of dignity and honor because it has been contaminated with the spirit of commerce.[10] The charge that constitutes more than an inconvenience to our conscience is that lawyers follow the rule of the cannibal - - - we eat what we kill. Let me conclude by saying, let us get together and dismiss all these charges. Let us prove that law is a calling and that the voice that calls belongs to the God of love and therefore lawyers serve a purpose higher than themselves. Let us show that the legal profession is not a mere economic occupation and that its call does not come from the God of gold and therefore our actions as lawyers are not dictated alone by the invisible hand of the market forces. I say and I say it again, the business of law is not a business but service to God and men.