The Trump administration’s policies must run a gauntlet of lunatic left-wing judges before they can be implemented. Infrastructure of every type in the U.S. faces huge additional costs, with its real cost ten times what it was a century ago and three times that of similar infrastructure elsewhere. Mergers can be delayed for years, to the great damage of all participants while spurious legal claims are adjudicated at a snail’s pace. The U.S. medical system is forced to suffer suboptimal treatments, and other complex bureaucracies are forced to suffer gigantic additional costs and delays because of the risks from opportunistic trial lawyers. Yet legal costs are included in GDP as a positive item. This makes no sense; almost all of them subtract value and their costs should be subtracted from GDP, not added to it.

At their most basic, lawyers are necessary, as is the law. Civilization would be impossible without the rule of law, and modern industrial civilization even more impossible. Fans of Christopher Nolan’s “Odyssey” movie would mostly not claim to be capitalists, but one of the many unhistorical features of that movie, as I gather from the reviews, is that it updates the Bronze Age ethical world about which Homer sang to a late mediaeval Christian world, in which one can imagine Shakespeare’s Merchants of Venice doing good if risky business. Odysseus is burdened with a conscience, not something known in the Homeric era, where misdeeds were punished by the Gods, not internally.

Technologically, it is true, there was not much difference between the two eras, but in outlook there was a huge difference; life in the real Bronze Age was nasty, brutish and short, in Thomas Hobbes’ memorable phrase. Conversely, the merchants of Shakespeare’s and Hobbes’ time had the protection of established legal systems, with lawyers to protect both their contracts and if necessary, their physical existence by deterring the thugs that infest every age. Dick the Butcher who wanted to “kill all the lawyers” in Henry VI Part II was supposedly a ringleader in the 1450 Jack Cade’s Rebellion and represented a more primitive social view. At an Early Modern level, therefore, we need lawyers and should be grateful for their existence.

The English legal system under the great Lord Chancellor Earl of Eldon worked well, despite innumerable complaints of the law’s delays and costs. Criminal law trials were quick and simple, generally over in a morning, with the parties involved knowing their fate immediately. The death penalty and transportation to Australia were available as punishments to deter miscreants (though as Liverpool said in 1819, New South Wales was becoming so pleasant that transportation to it was no longer a sufficient deterrent – there were cases of savvy London rogues committing crimes so they could be sent there free of charge).

Eldon’s legal system had lengthy and economically damaging civil trials, notably that of Jennens vs Jennens, arguing the claim to William Jennens’ 1798 fortune of £1.5 million, serious money in those days, which ran until 1915, a total of 117 years, by which time the fortune was (of course) exhausted – Jennens had prepared a valid will, but being 97 when he died, had forgotten to sign it. However, these cases were prompted simply by the need for lawyers to make a living; they had no significant economic effect beyond the unfortunate parties concerned and the lucky or greedy lawyers.

In Eldon’s legal system, the law did not attempt to come after citizens who said things the authorities did not like. Even though there were fanatic Whig judges and clever and unscrupulous Whig lawyers like Henry Brougham, they had no power to block the Liverpool government’s laws simply because they did not like them – although they did delay George IV’s Coronation for a year because his estranged wife insisted on being present. Eldon’s legal system did not invent fresh constitutional rights to flood the country with “birthright” immigrants. The British constitution was what the Earl of Eldon said it was; he was a 1-man Supreme Court, greatly simplifying the appeals and law writing processes.

Eldon’s legal system did not impose massive delays on new infrastructure; you had to get an Act of Parliament to build a railway, because of the Eminent Domain it needed over landowners’ property, but even Eldon himself objecting in a memorable speech did not significantly delay the construction of Brunel’s Great Western Railway. There were no “trial lawyers” seeking to sue business for imagined transgressions against woke regulations or environmental fads – any such lawsuits would have been thrown out of court. Medicine was primitive, but its costs were not inflated by fanciful lawsuits seeking to prove that some medical procedure undertaken in good faith had been mistaken.

In short, the Eldon legal system worked. The railway from London to Manchester was completed in eight years from its first Parliamentary authorization (in two parts, joined at Birmingham) and cost a total of £7.1 million, equivalent to about £2.13 billion today, despite all work being carried out without any kind of power digging equipment, and with the inefficiencies (substantial on the London-Birmingham portion) of its being the world’s first major railway project. Compare that with the projected cost of the HS2 railway over the same route of at least £87.7 billion without the extension to Manchester and its projected completion time of 23 years from final Parliamentary authorization in 2020. That 41-fold plus increase in real construction costs, despite massive new technology, is almost entirely caused by lawyers and their pernicious allies in the environmental movement and the NIMBY NGOs.

Not only do lawyers and their nefarious non-profit allies make infrastructure inordinately expensive, but they often prevent it altogether. The state of New York does not allow fracking, despite having a major shale deposit south of Binghamton, in a very depressed region of the state, and it has now placed a 1-year moratorium on data centers — which could end up looking clever, as the data center bubble may well burst before then. However, the fracking ban has done huge damage to New York’s economy and the unfortunate mostly welfare-recipient inhabitants of Binghamton, while a parallel ban on gas pipelines may well cause the state’s electric utilities to cease operating, some hot or cold day.

There are worse crimes to attribute to lawyers than merely adding delays and costs. During the Biden administration in the U.S., and more seriously in quasi-democratic leftist countries such as Brazil, Ukraine and possibly now Hungary and Poland, lawyers have sought to imprison or ruin their political opponents, and given the number of politically extreme, unscrupulous judges on the Bench, they are quite often successful. This undermines the central pillars of democracy or any other kind of legitimate state, because it undermines the rule of objective law, on which that legitimacy is based. The damage wrought by such legal shenanigans cannot be quantified as can cost overruns in railway projects; it is essentially infinite. Judges who provide gigantic quantities of glue in the works to any administration whose policies they dislike are another pure cost center in the economy. Naturally, the worst legal excesses are seen in institutions that have no democratic control and consist entirely of the worst lawyers, such as the EU, the UN, the International Criminal Court and other supranational bodies.

Lawyers at the early modern Eldon-period level of simple criminal trials (by all means enhanced today with DNA and other modern evidence, so the false conviction rate would be lower) are unquestionably valuable and should be counted positively in output. Lawyers to squabble in the innumerable lucrative private disputes that are inevitable in a rich society are not adding economic value but are probably necessary in a world not entirely inhabited by rational men and women. However, the lawyer/regulator/environmentalist/nonprofit nexus is wholly damaging, has grown grotesquely in the last century, and subtracts both from the wealth of society and its economic dynamism. If Britain was not spending £87 billion on HS2, it could buy something useful with the money, though under its current management, it would probably merely find an alternative way to waste it.

Let’s not “Kill all the lawyers” – but let’s send the younger ones to welding or plumbing school, where they can learn skills that are genuinely useful!

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(The Bear’s Lair is a weekly column that is intended to appear each Monday, an appropriately gloomy day of the week. Its rationale is that the proportion of “sell” recommendations put out by Wall Street houses remains far below that of “buy” recommendations. Accordingly, investors have an excess of positive information and very little negative information. The column thus takes the ursine view of life and the market, in the hope that it may be usefully different from what investors see elsewhere.)