We will soon be into the time of year when the U. S. Supreme Court begins to consider new cases in its annual term. As those decisions follow we will getting the now-familiar analysis about Left v. Right and how the opinion-giver’s less favorite side is ruining America. In order to help you make more sense of all this, I thought it might be helpful to explore more deeply how these things work.
There is indeed a divide between, well, pick your term: Left-Right, Progressive-Conservative, and so forth. I would suggest that many of these disputes about jurisprudence really come down to an irreconcilable dispute about what the law is supposed to be in our society as well as what it is intended to do.
Here in the U.S., there are two kinds of law: the common law and statutory law (or code-based law). Statutory law is the one everyone understands: A legislature or a congress or a city-council passes a law by a majority vote and after following whatever other steps are required (such as signature by a President or Governor) it becomes law. This has been the most common kind of legal system down through the ages, from the Ten Commandments and the Book of Deuteronomy down through the Codes of Hammurabi or Napoleon. In other words, someone decides what the law should be and makes it so.
Code-based law is forward-focused. When something happens (like a school shooting or a terrible accident) and people are unhappy about it, the natural instinct is to cry out that there needs to be a law to prevent it from ever happening again. Legislators will engage in all kinds of political horsetrading (when the system is working well) and we will have a law enacted. The hard part is when it leaves the drafting tables and committee rooms and takes effect out in the messy, messy world.
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Common law is a different animal. It comes from our English heritage and is made by judges instead of by monarchs or legislatures. Over a long history, doctrines have developed. These doctrines have been defined and honed by application to facts in the context of a lawsuit. Common law is created by looking backwards at the facts of an individual case when deciding someone’s claims for damage due to a wrong committed against him. The common law looks forward only in the way that general doctrines and principles can be applied as a guide to one’s actions.
A common law ruling becomes binding precedent – a rule that will apply to similar fact situations in the future. The legal argument here is almost always whether the facts of my case are like those of the case law so that the same doctrine will apply in the same way, or whether the facts are different enough to justify some deviation from the doctrine.
One of the slowly disappearing places that “pure” common law continues to function is in the context of the law of negligence, where the standard (generally speaking) for whether you are legally responsible for the damage your actions have caused is whether or not you acted reasonably. This is a gross oversimplification, but the law sets the standard (reasonable care) and the fact finder (jury) decides whether the defendant’s actions did or did not meet that standard of reasonable care.
The two kinds of law interact all the time. Sometimes common law is impacted by statute. When a statute sets a speed limit, a finding that one exceeded that limit often requires a finding that the driver failed to act reasonably in doing so. But then there are always exceptions, such as where the speeder was responding to an unexpected emergency or where he was attempting to avoid a dangerous situation. There tends to be more room for common sense exceptions in common law than in statutory law.
Also, in deciding what a statute means when applied to a given fact situation, a judge must often rely on common law concepts to fill-in or supplement areas where the statute is silent. For example, one common law doctrine would be that statutes which contradict common law are to be construed strictly so to minimize their disruption of the otherwise existing legal landscape.
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This long windup is necessary in order to set up my main point: that while the last generation or two of lawyers and judges may agree on what the law is (as described above) there is increasingly a dispute about the purpose of the law and how it is to be applied.
The traditional approach (and you just knew that I would identify with this one) is that the law is the law. Whether passed by statute or handed down by judges, it is a system that tries very hard to set out the rules for all of us to live by. When there is a legal injury it is up to our system be the umpire: is it a ball or is it a strike? Is the defendant responsible or isn’t she? The rules are the rules and the judge is there to call them as he or she sees them. Someone is going to win and someone is going to lose. It has long been an old legal adage that hard cases make bad law, which means that even the most “conservative” judge can be tempted to “reverse-engineer” a reading of the law in order to hit a result he needs to hit. But deciding on a result and finding a way to rationalize it is usually to be avoided under a traditional view of the law.
By way of example, I once represented a self-serve car wash. A woman sued the car wash after she got out of her car, slipped on some ice and hit her head. Although most of the concrete floor was heated, the area where wooden slats covered a central drain trough was not and ice had accumulated there. That area was right under the car door in a way that was both hazardous and in full view. My client won the case because there was no proof that it had fallen below the standard of reasonable care.
The more modernist approach has been that the law is there to be fair in ways that other branches of government cannot manage. In this view, the law lives and breathes in that we know what we need to accomplish and we should not be content to stand around and do nothing when a poor person who has suffered some injury which would otherwise be uncompensated or when that person would be otherwise left at an unfair disadvantage.
Taking my example, it could have been tempting for a jury to find the car wash responsible because the woman had been hurt and because the car wash was a business which could surely afford the liability.
In this view the law is there to make policy and to go where legislative bodies fear to tread. A judge (who is often not subject to voters) can insert himself into into the political fray and decide how things will be done. Terms like “public policy”, “balancing test” and “judicial conscience” come into play under this view of the law.
The problem with this view is that what is fair is often in the eye of the beholder. And when well-known rules are subject to being bent without warning in order for a result to be reached nobody is quite sure what is or is not allowed any more.
I don’t think it is a controversial statement to argue that the common law is under seige – from legislatures who continue to pass new statutes every year on the one side to “activist” judges who will mold or stretch the meaning of a statute or a doctrine in order to get the desired result.
No case makes it to the Supreme Court without there being a very good argument for each side. But while naked partisan politics can be a factor, it is much more likely that differences of opinion involve competing understandings of what the law and the courts that administer it are supposed to be. Is the law about impartial application of the pre-existing rules? Or is it about deciding what is fair and using the law as a set of tools to reach the desired outcome?
In today’s legal landscape this is not an easy question to answer.
Unedited picture of a sign found at the Flickr page of slmp.co.uk, shared under a CC BY 2.0 license.