Acton Commentary

Tort Reform and Thomas More: Lessons from a Christian Lawyer

Sir Thomas More

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 numerouscounter-examples, in which people seem anxious to fix blame for their problemsupon someone else--invariably someone with substantial financial resources.

The specter offrivolous lawsuits continues to inhibit many business leaders, doctors, clergy,and educators from taking prudential risks, and even giving commonsenseguidance to those they serve. But at an even deeper level, spiraling litigationcontinues to tear America's social fabric. Employers and employees are forcedto adopt defensive postures towards each other, with everyone viewing everyoneelse as a potential litigator.

Severalproposals have been outlined to curb this litigation crisis. Many are worthy ofconsideration. Few such suggestions, however, confront some of the problem'sroot causes.

One is what hashappened to the legal profession itself over the past few decades. For years,many law schools have presented law to their students either primarily as amoney-making exercise, or just another way of wielding ideological power.Usually such ideas are cloaked under the guise of yet another theory ofjustice, although in recent years certain legal scholars have actually arguedthat law is nothing more--and should be nothing more--than a means of utilitariancalculation.

Given such acontext, it is not surprising that many lawyers perceive tort law primarily asa means for personal material profit, rather than a last resort for redressingserious injustices.

Christian legal thinkers, of course, have made perhapsthe most substantive contributions to the Western legal tradition. It woulddifficult for even secularist fundamentalists to deny that the whole canopy oflegal institutions, processes, and concepts that exist today are unthinkablewithout the contributions of Christian belief, institutions, and legal thought.

Perhaps the mostfamous lawyer of all is the 16 th century Christian humanist andmartyr, Sir Thomas More. Widely admired today by Orthodox, Protestant, andRoman Catholic Christians (and more than a few secularists) as a man whorefused to endorse a tyrant's illegal machinations, less attention has beengiven to More's work as a solicitor, legal scholar, judge, and ultimately, LordChancellor, England's highest legal office, which More was the first non-clericto occupy. A cursory look at More's conduct reveals marked contrasts to that ofmany contemporary lawyers.

Inpre-Reformation London's vibrant commercial society, there was ample need forgood lawyers. Thomas More's legal work was intimately tied up with London'scommercial life, especially the most important merchant association, theMercers' Guild. In 1509, they helped elect him to Parliament, and appointed himhead of two large commercial missions to Europe in 1515 and 1517.

We know thatMore's legal practice was, before he entered government service, netting himapproximately 400 pounds a year (the average skilled worker at the time earnedabout 10 pounds annually). Leaving aside serious misreadings of his most famousbook, Utopia , ThomasMore was no crypto-socialist. On several occasions, he underlined thelegitimacy of just profit and private property.

Moreover,despite such earnings, even More's detractors, both then and now, acknowledgethat his integrity as a lawyer was unquestionable. More was notorious forrefusing bribes. Nor did More see the law's ultimate point as being his ownmaterial success.

More's greatfriend, 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 thatthis 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 wouldtell them, and advise them to drop the case, “saying that it was not righteither for him or for them to go on with it.” In one instance, one of More'sson-in-laws, Giles Heron, brought a civil case before a court presided over byhis father-in-law. More is recorded as telling his son-in-law to “ceaselitigation, as his cause was not just.” Heron persisted. More dismissed thecase.

These factssuggest that More had a classical Christian understanding of law. Like anyserious Christian, he believed that law had a role in addressing violations ofjustice 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 alsoconsidered recourse to legal action as a last, rather than first resort. LikeThomas Aquinas, More regarded justice as, first and foremost, a virtue that people should be encouraged toexhibit towards each other--the courts being an avenue for redress only whencriminal acts were involved or all other forms of resolution broke down. Thatwas certainly his practice as a lawyer, and one followed by More when slanderedby an intellectual opponent in a 1520 book entitled Antimorus .

For Thomas More,law was too serious an enterprise to be corrupted by disputes proceeding fromrefusal to acknowledge personal responsibility, unwillingness to engage inreasonable non-legal resolution, or a desire to make money. A litigious societyis a one that reflects and facilitates dearth of trust, lack of concern forneighbor, and, perhaps above all, absence of the very Christian quality ofmercy. Perhaps that, above all, is why Christian lawyers should ask themselveswhether they model their litigation practice upon someone like Thomas More, or,by contrast, their neighborhood ambulance-chaser.