Tort Reform and Thomas More: Lessons from a Christian Lawyer
Scarcely a day passes by without the media reporting, in half-amused, half-despairing tones, yet another lawsuit against a business, doctor, or school. No doubt, many actions are justified. But there are numerous counter-examples, in which people seem anxious to fix blame for their problems upon someone elseinvariably someone with substantial financial resources.
The specter of frivolous lawsuits continues to inhibit many business leaders, doctors, clergy, and educators from taking prudential risks, and even giving commonsense guidance to those they serve. But at an even deeper level, spiraling litigation continues to tear America’s social fabric. Employers and employees are forced to adopt defensive postures towards each other, with everyone viewing everyone else as a potential litigator.
Several proposals have been outlined to curb this litigation crisis. Many are worthy of consideration. Few such suggestions, however, confront some of the problem’s root causes.
One is what has happened to the legal profession itself over the past few decades. For years, many law schools have presented law to their students either primarily as a money-making exercise, or just another way of wielding ideological power. Usually such ideas are cloaked under the guise of yet another theory of justice, although in recent years certain legal scholars have actually argued that law is nothing more—and should be nothing more—than a means of utilitarian calculation.
Given such a context, it is not surprising that many lawyers perceive tort law primarily as a means for personal material profit, rather than a last resort for redressing serious injustices.
Christian legal thinkers, of course, have made perhaps the most substantive contributions to the Western legal tradition. It would difficult for even secularist fundamentalists to deny that the whole canopy of legal institutions, processes, and concepts that exist today are unthinkable without the contributions of Christian belief, institutions, and legal thought.
Perhaps the most famous lawyer of all is the 16th century Christian humanist and martyr, Sir Thomas More. Widely admired today by Orthodox, Protestant, and Roman Catholic Christians (and more than a few secularists) as a man who refused to endorse a tyrant’s illegal machinations, less attention has been given to More’s work as a solicitor, legal scholar, judge, and ultimately, Lord Chancellor, England’s highest legal office, which More was the first non-cleric to occupy. A cursory look at More’s conduct reveals marked contrasts to that of many contemporary lawyers.
In pre-Reformation London’s vibrant commercial society, there was ample need for good lawyers. Thomas More’s legal work was intimately tied up with London’s commercial life, especially the most important merchant association, the Mercers’ Guild. In 1509, they helped elect him to Parliament, and appointed him head of two large commercial missions to Europe in 1515 and 1517.
We know that More’s legal practice was, before he entered government service, netting him approximately 400 pounds a year (the average skilled worker at the time earned about 10 pounds annually). Leaving aside serious misreadings of his most famous book, Utopia, Thomas More was no crypto-socialist. On several occasions, he underlined the legitimacy of just profit and private property.
Moreover, despite such earnings, even More’s detractors, both then and now, acknowledge that his integrity as a lawyer was unquestionable. More was notorious for refusing bribes. Nor did More see the law’s ultimate point as being his own material success.
More’s great friend, the Renaissance scholar Erasmus, recalled that More gave his clients “helpful and useful advice, thinking much more of their advantage than his own; the majority he used to persuade to settle their actions, on the basis that this would save them expense.” One of More’s biographers, Thomas Stapleton, notes that if More did not believe that a client’s cause was just, he would tell them, and advise them to drop the case, “saying that it was not right either for him or for them to go on with it.” In one instance, one of More’s son-in-laws, Giles Heron, brought a civil case before a court presided over by his father-in-law. More is recorded as telling his son-in-law to “cease litigation, as his cause was not just.” Heron persisted. More dismissed the case.
These facts suggest that More had a classical Christian understanding of law. Like any serious Christian, he believed that law had a role in addressing violations of justice and shaping a society’s moral ecology. The contemporary aspiration of “amoral” law would have struck him for what it is: logically nonsensical.
Yet More also considered recourse to legal action as a last, rather than first resort. Like Thomas Aquinas, More regarded justice as, first and foremost, a virtue that people should be encouraged to exhibit towards each other—the courts being an avenue for redress only when criminal acts were involved or all other forms of resolution broke down. That was certainly his practice as a lawyer, and one followed by More when slandered by an intellectual opponent in a 1520 book entitled Antimorus.
For Thomas More, law was too serious an enterprise to be corrupted by disputes proceeding from refusal to acknowledge personal responsibility, unwillingness to engage in reasonable non-legal resolution, or a desire to make money. A litigious society is a one that reflects and facilitates dearth of trust, lack of concern for neighbor, and, perhaps above all, absence of the very Christian quality of mercy. Perhaps that, above all, is why Christian lawyers should ask themselves whether they model their litigation practice upon someone like Thomas More, or, by contrast, their neighborhood ambulance-chaser.
Dr. Samuel Gregg is Director of Research at the Acton Institute in Grand Rapids, Mich. He is the author of Economic Thinking for the Theologically Minded (University Press of America, 2001) and On Ordered Liberty: A Treatise on the Free Society (Lexington Books, 2003).
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