LEGALISTIC V. SCIENTIFIC VIEWS OF LAW
The following paper, written by a reform minded attorney, is very
revealing as to the legalistic v. scientific views of law, touching on the
root cause of many of the problems in legal education, the structure of
the legal system, and the legal culture.
Thus I have decided to employ it as an introduction to the legal system's
problems; leaving the following sub-sections to deal with specific issues.
This article was included with an article by AntiShyster Magazine that I
(Bob Allston) downloaded from "dadejustice" on the Web. The Antishyster ARTICLE is interesting in that it portrays
Florida as having the worst courts and strongest legal reform movement in
First a few basics. By whatever methods are employed to formulate laws,
they must meet the requirements of human nature and the human condition.
The better law meets these requirements, the better the law. The worse it
meets them the worse the law. When the gap between law and human nature
and the human condition becomes too wide to be tolerated, no matter the
cause, accelerated social deterioration, anarchy and revolution result
if the process is not reversed. This Web site takes the position that
America is currently on dangerous ground because of the legal system
and other problems and therefore this issue is in dire need of
Unlike previous centuries, because of the build up of scientific knowledge
in the 20th century the best way to formulate law so that it most closely
meets the requirements of human nature and the human condition has been
increasingly through scientific perspectives and analysis. This follows
from the philosophy of science which proposes that science is the shortest
route to knowledge in disciplines amenable to scientific treatment.
And of course, population surveys, statistical analysis, and other methods
of scientific analysis are the necessary link between human nature and
formulating such laws. Thus, for example, the better that law can reflect
a realistic understanding of the psychological, sociological, economic,
etc., character of drug addiction or divorce, the better the law.
For its part, one of the scientific aspects of the legal profession is the
fact that it is in the service industry selling a service to the public.
This fact appears to be the best kept secret in the legal profession as
well, for even though the author's profession has a jealously guarded
monopoly to practice law, over half the public have no access to the
courts when they need access to them (as discussed in a subsequent
And of course as any business person it seems other than a lawyer knows,
there is a well established standard approach to improving market
penetration. And that is to employ market surveys to get to the bottom of
the specific cause of the unpopularity; thus allowing specific corrective
measures to be formulated. In general, the more detailed and accurate the
data, the more detailed and accurate the cure.
Thus, whether viewed as a problem in market penetration or viewed in the
context of any number of other economic, sociological, psychological,
etc., perspectives, any social scientist is going to want the best, most
detailed relevant information obtainable in order to start assembling a
detailed profile of the problem-- and hence solution of this very serious
problem. And as such, he would consider the study mentioned in her article
as an appropriate and necessary first step in the right direction. I
don't know precisely what study she is referring to but it may be one
of the studies referred to in subsequent sub-sections of this site.
The fact that the author completely dismisses out of hand the study as a
waste of money, suggesting moreover that knowing people don't like lawyers
is all that needs to be known, clearly suggests she has no perception of
her profession as a service provider subject to the same free market
forces, market analysis, and market cures-- as any other service provider
in the service industry. Indeed any business or profession having such
dismal market penetration in spite of enjoying a rigidly enforced monopoly
would almost certainly have gone out of business long ago without the
monopoly. This is of course a serious issue, addressed in subsequent
More fundamentally it suggests she has no perception of the very
fundamental relationship between her profession, science, and human
nature, as discussed above, either. For as any marketing person will
tell you, understanding human nature is what marketing is all about.
All of which suggests as well that she may be oblivious to the fact that
there are in fact scientific solutions to most of her profession's most
serious problems. And here we touch on one of the main findings of this
Web site; for indeed, the fact that lawyers do not perceive there are
scientific solutions to their profession's problems is a tragically
recurring theme; documented throughout this Web site.
One sees this not only in her perspective on this particular study of why
people don't like lawyers; for, it is also corroborated throughout her
paper as well. For, characteristic of legal thought, the language and
perceptions in this paper are all in essence-- legalistic-- constitutional
rights, separation of powers, etc. One gets the feeling from reading the
paper that if only these existing legal maxims were respected and met, her
job as a lawyer-- and legal reformer-- would be satisfied; and the
discipline of law would then be back on its proper and destined track.
Unfortunately however, this is all part and parcel of the legal
profession's deceptively simple but very dysfunctional dogma.
At the same time, we could scarcely argue with the value of most of the
maxims she wishes to invoke. The Constitutional and separation of powers
doctrines have been honed and molded through centuries-- the ultimate test
of meeting the requirements of human nature and the human condition.
However for all their value, in and of themselves they simply do not reach
most of the problems. For, as we learn in following sub-sections of this
Web site, what good are constitutional rights if 59 percent of the
population has no access to them? What good are all the laws to this 59
percent of the population if they are written in legalese that can't be
understood? What good are lawyers in defending them if they refuse to
learn and accept ethical standards? What good are lawyers who have
serious mental problems?
The simple fact is that many of these problems are at best only marginally
addressed through legalistic means. Indeed, in many of these areas the
laws are more the problem than the solution.
This state of affairs in turn points to a serious deficiency in legal
education. For, it seems reasonable to assume the author learned that the
source for virtually all of her thought and deliberations, as a lawyer,
would be substantive law-- statutes, constitutional law, case law, etc.,
as well as practice and procedure. Having been immersed in this study and
dogma for three years of law school, she has thus contracted "statute
addiction". This is a belief structure that finds knowledge outside of the
limited and narrow world of substantive law and practice and procedure--
legalistic knowledge-- to be irrelevant and inferior-- simply because it
is not perceived to be-- "law".
And moreover, this belief structure and psychological mind set holds that
the source for law is law itself rather than human nature. Thus she is
doomed, and dooms all of us, to work out of this inward focused, circular,
often faulty and very narrow knowledge base as a source for operating the
And here we touch on another problem. The legal profession needs to take
on much broader responsibility-- to match its authority. A judge has
authority to dish out orders all day long with no responsibility
whatsoever for the result of his actions. However, in the theory of
organization management, responsibility is required to be commensurate
with authority. If a corporate manager was allowed such authority without
having to accept the responsibility for his actions, he would become the
worst conceivable kind of tin god to those under him. So what kind of
judges do we have? And worse than merely being tin gods, they are mindless
statute addicts as well. This issue is addressed in later sub-sections.
Of course, the self interest of the legal profession has much to do with
these problems as well because a dysfunctional, degenerate, inward focused
legal system is of course a source of jobs, money and power for lawyers
Thus it is long overdue to take the problem that 59 percent of the Florida
population has no access to the courts to the marketing department of a
And to take the problem of legalese to the linguistics department-- or the
English department-- or the education department.
And to take the problem that law students refuse to learn ethics to the
psychology department-- or the sociology department-- or the anthropology
department-- or the education department.
And to take the problem that lawyers have serious mental problems to the
psychology department-- or the sociology department-- or the anthropology
And when you do, put the modus operandi of the legal system on the table
too. For the structure and culture of the present legal system is the
greatest problem of all. It, like all the rest needs to be redefined to
meet the requirements of human nature so the legal profession will be
sufficiently motivated to address these and other massive problems on its
own-- and without having to have countless more statutes to do it.
For, one of the great fallacies of the present mindless obsession with a
legalistic approach to law is to turn out masses and masses of detailed
statutes and case law in a very self defeating attempt to micro-manage
every conceivable aspect of human behavior; thus only producing a serious
and destructive irritant to human nature and all segments of society.
But take these and the hundreds of other problems that aren't being
addressed in the present legalistic legal system-- somewhere. For if we
don't, the final epitaph on our civilization is going to be-- we knew how
to address the problems-- but didn't do it.
For, as I write this, the number of people abused by this legal system
continues to grow. And a certain percentage of them will join militias
which are also continuing to grow-- all awaiting the day when this corrupt
dysfunctional system can be destroyed.
Lastly, we need more well motivated reform minded lawyers like Ms.
Hendricks. And hopefully she and others might consider broadening their
perspectives along the lines suggested in this web site; whether she would
wish to view it as science, or otherwise. For shaking the shackles of
degenerate state power (as exemplified by the Florida Bar) from the backs
of lawyers themselves is a necessary step in shaking the shackles of
excessive law, regulation, state power, and legalistic perspectives from
our own backs and returning our legal system to its roots in human nature
and the human condition; thus allowing law to work with and for us rather
than being destructive as it so often is now.
Most of what Ms. Hendricks proposes is consistent with a scientific
perspective of law. For the most part her program simply needs to be
broadened and deepened into scientific perspectives of human nature to
address the larger psychological, sociological and economic issues that
these limited legalistic means can't reach.
Most lawyers would argue that such issues aren't within the scope of a
"legal system" whereas a science based legal system would in fact
incorporate them very comfortably. Indeed, most of this sociological real
estate, that which is between what the legal profession claims under its
current narrow definition of "legal system" and that which would be
claimed under a broader science based legal system is currently unclaimed
territory; a "no mans land", not administered to by any profession.
It remains unclaimed in spite of the fact that many professions such as
psychology, sociology and economics, to name a few, have rightful claims
here, because the legal profession maintains a "keepa you hands off"
stance toward it; knowing that allowing other professions to enter here
would cost the legal profession money, power, jobs and prestige.
In short, since the legal profession doesn't have the culture or knowledge
to take it over itself, they are making sure nobody else gets it either. A
modest exception to this is criminology; which in return for the
"privilege" of operating here, is largely constrained from attacking the
legal profession's dysfunctional legalistic world.
The bottom line is that the present legal profession knows that
incorporating such scientific capabilities into their antiquated world
would provide vast efficiencies and vastly simplify the law, costing jobs,
billable hours, and prestige to the present legal profession while
rendering much of their education obsolete.
As you read many of the following sub-sections, you will find many of the
problems that Ms. Hendricks relates here about how the Florida Bar relates
to lawyers, to be mirrored in how the entire legal system itself relates
to all of us.
I hope you find this introductory sub-section and the article below
informative. Following sub-sections document specific problems of the
legal system in detail.
REBELLION WITHIN THE FLORIDA BAR
By Jane E. Hendricks, Esq., February, 1996. Downloaded from the
Web site "dadejustice"
Ms. Hendricks is a member of The Florida Bar and a member of the Board
of Directors of the Attorney's Bar Association of Florida, Inc. She
has practiced for 15 years in Miami. She is a solo practitioner in the
area of general civil law.
- The Florida Bar and the Florida Supreme Court are out of control. They
have no business intruding into the personal rights of lawyers. Lawyers
have the same civil rights as all other citizens, including the right to
earn a living free of harassment and unreasonable government meddling. Did
you know that The Florida Bar is investigating an attorney for true
statements made in court pleadings? It seems we lawyers must surrender
our First Amendment rights and our other rights as citizens when we are
sworn in as lawyers.
- All attorneys deserve a voice in Bar affairs, a right too often denied
us by an ever increasing Bar bureaucracy which does thing to us rather
than for us. The profession is over-regulated. One of many effects of this
over-regulation is a stifling of the attorney's function as client
advocate. If an attorney must look over his/her shoulder at The Florida
Bar in the course of litigating the client's cause, a timid and feeble
effort, rather than a zealous presentment of the case, will be the result.
- Comment: The above comments about the stifling effect of the Bar on
lawyers, could well be said about the stifling effect of the legal system
on all citizens.
- This is not to say that all regulation of attorney conduct of
litigation is wrong. Clearly, the Bar should promote honesty and integrity
in the course of a case and should regulate and sanction dishonest and
fraudulent conduct. But to investigate [and possibly sanction] the
expression of true statements in a pleading.... One can only shake one's
head in disbelief.
- The Attorneys' Bar Association of Florida, Inc., a group which dates
from 1993 and now has 600 members, is striving to limit the power and
authority of The Florida Bar and Florida Supreme Court as to the
individual rights of lawyers who practice in Florida. As retired Florida
Supreme Court Justice James C. Adkins, a member of the Attorney's Bar
Board of Directors until his death in 1994, said, "lawyers today feel like
passengers in a wagon hitched to unbridled horses."
- The Florida Bar is the nation's fourth-largest bar association with
membership in excess of 53,000. Membership in The Florida Bar is
mandatory, rather than voluntary as it is in the Attorney's Bar
Association of Florida. This notion of "compulsory unionism" alone is
abhorrent to the sentiment of the "right to work" in this country and is
under attack by the Attorney's Bar Association of Florida. What is the
rationale for obligatory membership in an organization and how does this
further the public good? Physicians, accountants and countless other
professionals are regulated without having to belong to a professional
organization. The license itself is enough to bring the professional under
the auspices of state regulation.
- One of the goals of the Attorneys' Bar Association of Florida is to
remove the regulation of attorneys from The Florida Bar and the Florida
Supreme Court and to place it under the state legislature's Department of
Business and Professional Regulation which oversees 52 professions in
Florida. This would be accomplished through a state constitutional
amendment. Why should lawyers be treated differently? The public will be
better served if lawyers were regulated like every other profession.
People do not trust a self-regulated profession and rightfully so. The
colloquialism says it all. It's a situation of "the fox watching the hen
house." The lawyers are the foxes and the lay public is the hens. Foxes
are going to police each other to ensure the rights and safety of the hens
are not jeopardized in a system run by the foxes??! Get real! The
incestuous relationship between the Florida Supreme Court and The Florida
Bar [an "arm" of the court, by its own admission] results in an imbalance
of power and absolute corruption not found in the regulation of other
professions. It promotes an abuse of power reminiscent of Nazism and the
- COMMENT: She is of course absolutely right. The regulation of the Bar
should not be by the Bar. The relationship between the modus operandi of
the Florida Bar and that of organized crime is explored at length in a
subsequent sub-section entitled "Florida Government for Sale: Only Lawyers
- The Bar is lobbying vigorously [such lobbying being funded by
attorneys' dues payments] to keep the regulation of attorneys under the
aegis of The Florida Bar and the Florida Supreme Court. If this power goes
to another agency, the Bar would be emasculated and reduced to a
relatively powerless voluntary organization.
- The Florida Bar is big business. It's all about power and money.
Retaliation and tyranny. Dictating values, opinions and morals while
invading privacy. Regulating matters of individual conscience and free
- Currently, the Bar is under attack in the Florida legislature on the
issue of why its budget is not reviewable by the legislature as is the
budget of every other state agency. Even the Florida Supreme Court's
budget is reviewable by the state legislature. The Florida Bar, The Board
of Bar Examiners and The Florida Bar Foundation are all state agencies.
The Bar admits it is an "arm" of the Florida Supreme Court and a state
agency. The Foundation and the Board of Bar Examiners are administrative
arms of the Florida Supreme Court, thus they should all be subject to
public-records laws, personal financial disclosure and budget review by
- The Florida House of Representatives Appropriations Committee is
presently looking into the legitimacy of the collection of mandatory dues,
fees and trust account interest as if the entities were state agencies
where the spending was done as if the entities were private organizations.
- In dues alone, the Bar receives in excess of $10.7 million per year.
The Bar's total revenues for 1995 were $23.3 million. The people of
Florida, through their elected representatives, ought to have a say in how
that money is spent. The Bar spends 35% of its budget regulating
- The fact is the Bar has done a poor job of disciplining attorneys.
Attorneys are dissatisfied and the public is most assuredly dissatisfied.
- It is inappropriate to have one agency [The Florida Bar] writing,
adjudicating and enforcing rules regulating attorneys. Writing rules is
the function of a legislature. Enforcing rules is the purpose of the
executive branch of government. Adjudicating rules is the province of the
judicial branch. As the Bar currently operates, it is in direct conflict
with classic constitutional doctrine of "separation of powers." The reason
our nation's forefathers adopted the principle of "separation of powers"
was to implement a system of checks and balance whereby one branch of
government would not become too powerful and, with that power, become
corrupt. We have lost that separation of powers, not only as to attorney
discipline, but as to attorneys as officers of the court being in all
branches of the government [another article, another time]. The stench of
corruption is overwhelming.
- COMMENT: Her point above about the corruption caused by attorneys as
officers of the court being in all branches of government could not be
overstated. In a subsequent section FLORIDA
GOVERNMENT FOR SALE: ONLY LAWYERS NEED APPLY much of the abuse of
power comes from the fact that the same lawyers control both political
power, and through their cronies on the bench, state power. This is
clearly an abrogation of the separation of powers leading in turn to
massive amounts of corruption because such powerful people can just mow
down most of those who get in their way.
- The Bar prides itself on the number of attorneys it disciplines each
year and boasts of how the numbers are increasing. However, the attorneys
who get sacrificed in the guilty-until-proven-innocent approach to lawyer
regulation in Florida are often the small practitioners who lack the
political clout in the Bar or the financial resources to hire "big gun"
counsel to get the complaint "swept under the rug." But that does not
explain the Bar's coddling of small practitioners who outright steal
client's funds and render no service in return. A closer look at these
situations often reveals the fact that the complainant is a legal reform
advocate or a friendship between the attorney and a judge or some other
"connection" in the legal system which convinces the Bar to whitewash an
incident. The Bar is especially inquisitorial toward the small
practitioner who is outspoken about the need for legal reform and who
attempts to expose the corruption in the legal system.
- COMMENT: All of what she says above fits all too well within the
character of the Broward County and Lee County Bars as brought out in
subsequent sub-sections. She is in Dade County which is adjacent to
Broward County. One would feel particularly sorry for the small
practitioner who has attempted to expose the corruption of the system and
then gets caught in its tentacles. The unfortunate fact is, as explored at
length in later sub-sections, that virtually all lawyers simply ignore
their own ethics rules when it comes to reporting the unethical or
unlawful conduct of other lawyers.
- A recurring complaint by attorneys and the public is that the Bar
simply does not discipline those attorneys responsible for the most
egregious offenses such as taking clients' money or the opposing party's
money with no legal [let alone moral] basis. It amounts to legalized
extortion. This writer has personal knowledge of abuses in the family law
arena and the general civil litigation field where persons have
effectively been held hostage by their own attorneys or the opposing
counsel until they "sweetened the pot" for the lawyer and paid a clearly
excessive fee. These lawyers were never disciplined, even when six-figure
malpractice settlements were paid to the clients by the lawyers' insurance
carriers. These lawyers are in good standing today with The Florida Bar.
- Legitimate Bar functions are: disciplining lawyers, maintaining client
protection fund, operating a lawyer's assistance program [e.g. substance
abuse rehabilitation] and monitoring compliance with continuing legal
- Illegitimate Bar activities include: political lobbying, law-related
education, social policy engineering and public relations, all of which
the Bar engages in.
- A classic example of social policy engineering is the IOTA (interest
on trust accounts) program. This program was enacted in Florida 1981,
became mandatory in 1989, and requires that the interest generated from
clients' funds held in an attorney's trust account shall be handed over to
The Florida Bar Foundation which channels the money to legal aid groups
aiding the poor. This is a clear violation of the Fifth Amendment in that
it constitutes the taking of property without compensation. The fact is
that the interest belongs to the client and The Bar has no right to take
that money without the client's consent. A seizure of property has
occurred. Every lawyer who establishes a trust account is bound by the
Bar alliance with the banking industry to have interest on trust accounts
funneled directly to The Florida Bar Foundation. If the client objects,
the attorney must go to the bank, set up a separate account for that
client's funds. However, this writer's experience when such was attempted
was to effectively prevent the attorney having signatory power on the
account unless her social security number was attached to the account ,
meaning the interest generated would be reported to the IRS as her income
rather than the client's. If the client's social security number was used,
only the client could sign checks, which is totally unworkable if the
funds are being held to pay costs of litigation or the client is
- Furthermore, the interest sent to The Bar Foundation, $11 million in
1995, has been used for purposes other than legal aid for the indigent
and, in some cases, has even been spent outside the state of Florida. The
Orlando Sentinel in November, 1994 stated that part of the funds were
spent on Florida law school scholarships. A recent Wall Street Journal
noted that in 1995, $85,000.00 went to the American Civil Liberties Union,
a controversial lawyers group which defends almost anyone whose case raises
constitutional issues. Indigency is not a criterion. It is simply a scheme
by the judiciary to control enormous channels of money to some groups
which are charitable in name only. The funds are used to finance all
types of political issues and the Bar lies about where the money goes.
There is no accountability. The judiciary is not subject to inquiry under
the Freedom of Information Act.
- The Bar routinely engages in political lobbying on issues highly
controversial within the Bar membership. Much of the lobbying budget is
funded by membership dues. There is a mechanism in place for obtaining a
refund of that portion of an attorney's bar dues used on lobbying [maybe
$8-9.00 they say], but the process is cumbersome. So the Bar gets aways
with it. With 53,000 members at $8.00 per member, the Bar is spending in
excess of $424,000.00 annually on lobbying. Any lobbying not directly
related to the discipline of lawyers, admission of lawyers to the
practice, competence of lawyers and the manner in which the courts operate
- Further evidence of irresponsible spending by the Bar is the
expenditure of $50,000.00 in 1995 [from membership dues] to commission a
study of the public's perception of lawyers. One would have had to have
been in a coma for the past 10 years to not know the public's perception
- This is where I would differ with her, as discussed in the
- The grass roots support among attorneys is strong, although many are
afraid to publicly join the Attorney's Bar Association of Florida for fear
of retaliation by The Florida Bar. We are prepared for the long haul. It
will not happen overnight. But we fully expect to neuter The Bar and
achieve a more equitable system of regulating lawyers, a more honest
judicial system and a more lawful government in the end.
- Persons interested in furthering legal reform and reining in Bar
associations should discuss the issue with their legislators. Point out
the constitutionally dysfunctional manner in which lawyers are regulated.
- Individual and personal rights are at issue. The function of lawyers
is to protect individual rights and freedoms against abuses by others. If
we allow The Bar to run roughshod over our rights and to re-program our
principles within the microcosm of our profession, how can we effectively
protect the rights of the lay public?
- COMMENT: She of course makes a very strong point here.
- For more information, contact Jane Hendricks, Esq. in Miami at (305)
This is a page in the Web site entitled LEGAL REFORM
THROUGH TRANSFORMING THE DISCIPLINE OF LAW INTO A SCIENCE.