For a European, American seems suddenly a nation of litigants, where judicial power and thought dominate a moribund political culture.
So many of the country's 450,000 lawyers have access to or actually possess power that they best approximate, in this heterogeneous society the European concept of a ruling class.
The American ratio of lawyers to population -- one for every 500 inhabitants, not to mention one for every 200 in New York City -- is three times greater than Britain's, four more than West Germany's and 21 more than Japan's.
"Too many Americans," it has been said, "present to the court the frustrations and difficulties that they would formerly have atrributed to the imperfections of society. Here, again, the figures are eloquent: 40 percent of the population have engaged in litigation.
Diverse causes explain the growth of the contentious mood in America. One could be called the devaluing of the future. In 1911, the Russian political scientist Moise Ostrigorski wrote; Confident of the future, Americans manifest a remarkable endurance to an unhappy present, a submissive patience that is willing to bargain about not only civic rights, but even the rights of man."
Today, the individual, pushed by the competing demands of society, seeks immediate satisfaction of real or supposed rights.
Would the American go to court so often if he felt better supported by a network of friends and family ties? The American family is not "nuclear" as it was in past years. Family relations seem to run on a revocable contract -- as evidenced by divorce statistics. Even the relationship of parents to children seems to borrow from the idea of a contract. A recent cartoon in The New York shows a young boy taking leave of his father and saying to him, "Good-bye Dad' It was an interesting experience being your son!"
A contrast comes from Japan, a country with a social fabric so closely woven that business and finance are seen as an extension of the family unit. Japan needs only a fraction of the number of lawyers that the United States has.
The numerical progression of lawyers here also underlines this: Massachusetts in 1765, year before the Revolutionary War, counted only 50 lawyers for a population of 250,00 persons. The community was still compact enough to impose its own decisions, and suspicion of legal parasitism was still strong.
It has not entirely disappeared on May 4, 1978, on the occasion of the 100th anniversary of the founding of the Los Angeles Bar, President Carter used again his populist accents to denounce judical greed and the slowness of justice manipulated by lawyers, of whom "90 percent are in the service of 10 percent of the population," leaving entire categories of interests insufficiently protected.
Carter also echoed complaints of incompetence aimed at lawyers who possess neither the skills nor the profesional conscience of their predecessors. According to Chief Justice Warren Burger, 25 to 50 percent of U.S. lawyers misserve their clients by negligence or lack of interest.
More than half of America's lawyers have never and will never set foot in a courtroom. These are business lawyers who are the necessary go-betweens charged with large and small socail maneuvers and are most often grouped in 'law firms," of which the most extended join about 400 jurists distributed among 24 cities.
Although the income of these lawyers varies according to their services and fame, annual salaries from a minimum of $20,000 to 10 times that figure and more attains a total annual "turnover" of $25 billion. The profession exercise an attraction that does not diminish with time. In 15 years, the number of lawyers has tripled, while law students (125,000 in 1978) have tripled since 1963.
Truly, American lawyers come as close to being a "ruling class" as is possible in a country too vast and varied to produce one. Since Franklin D. Roosevelt, each president has had around him lawyer-confidants, so that Congress and state legislatures are dominated -- even if less so than before -- by a majority who come from the bar.
About 40,000 lawyers work in Washington, double the number 10 years ago. Eight of 13 cabinet members are lawyers; 8,000 participating in government. And when the White House needed to reorganize its staff, it brought in Lloyd Cutler, one of the most eminent representative of the
The execptional position of the American lawyer derives from the power of American judges. Their power in turn springs from their role in interpreting the Constitution. In Europe, and in France particularly, the application of a law depends on subsequent administrative measures, which can limit or restrict "the intent of the legislator."
But in the United States, administrative measures are only one element of the tracing-back to the intent of the legislative text. Judges, in specific decisions, give to the legislative history the force of law.
The judge writes the clear and unequivocal version of most American laws, which are often conceived and voted upon in disorder.
American opinion and its agencies understand this: the newspapers devote considerable coverage to decisions of the fedral judiciary, while they still do not know how to clarify the mysteries of the Congress, which remains impenetrable to ordinary mortals. Coverage of the Supreme Court earns attention and adwards. The public here acts as if Congress decided nothing.
Is it because it is so untouchable that the American political system is not the subject of serious original study? The prosperity of American "political science" is not able to hide that American political thought is at the point of death. But the nation's judicial achievements testify to a pulsing vitality.
Omitting the purely technical literature, constitutional history adds each year works of value, a general exchange of ideas that goes to the very foundations of law. You would have to cite a dozen titles to be fair, but that one work so arduous as "a Theory of Justice," by John Rawls, is now in paperback indicate that its audience exceeds the circle of specialists in the philosophy of law.
The modern view of the categorical imperative has engendered a whole literature of commentary. The same is true for the work of Lauarence Tribe, "American Constitutional Law," a broad dialectic of the development of jurisprudence in the Supreme Court since its beginning.
What do these differing repercussions mean, this advance of the judiciary over the body politic? Most of all, it is an exact reversal of what we are used to in Europe. On the Old Continent, the Napoleonic formula of politics as a sestiny remains valid.
Whether it is seen as "political" or not, politics affects our lives directly, by the incessant discourse of its practitioners and by the administrative framework of the citizen's life. We are touched by the judge only in cases of disturbances of the community, divorce and serious crime. Politics remains the routine, the judiciary the exception.
In the United States, the judiciary leads. It legitimizes the laws and gains control through them. It intervenes on all levels and at all times.
The judiciary puts the community in order with itself. Politics is at most the superfluous, the hazardous, the eccentric.
Hence the weak voting turnout. Hence the perpetual circus of a presidential election drawn out for months.
But also, it is the equality of conditions of life -- the driving force, according to Alexis de Tocqueville, of the American democracy -- that works for the primacy of justice.