The Law – What Is It, Exactly?
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.
Photo credit:
Unedited picture of a sign found at the Flickr page of slmp.co.uk, shared under a CC BY 2.0 license.
J. P.'s Blog 
Thank you for the clarification between common and statutory law. For the uninitiated it can be a tricky path to navigate and to determine what falls where. This has worked wonders for making a distinction between the two.
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Understanding the whats and hows of common law is maybe the biggest hurdle of first year law students. It is so not like what most of us are used to.
I am among the aging crotchets who see a beauty and a genius in the common law, and fear that it is slowly being eradicated from our jurisprudence.
It is my belief that code-based systems are inferior for the propagation of a free society, in that they tend towards a complexity that stifles initiative. Common law is more malleable and adaptable to unforseen change. I am a fan, as you can tell.
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Thanks for explaining all of that. It is a delicate balance, but I am of the opinion that the law must also adapt with the times, but then I may have been influenced recently by watching that movie about Ruth Bader! I grew up in the 70’s but had forgotten how archaic some of the rules were before women’s lib….
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I would agree that some of the really old common law concepts (such as women being unable to own property) were outmoded and needed to go. The benefit is that those common law doctrines can be replaced in a common law way. And in the US criminal law was taken out of the realm of common law from pretty much the beginning. The flip side is that sometimes in the rush to make changes, other things are affected in an unintentional way.
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Very interesting article. Surely a topic for a thesis at some level.
An acquaintance of mine is a judge in a Midwestern state. From time to time we have conversed briefly on how he keeps his job through elections every few years. Your article led me to try to clarify how someone here in Canada become judges, and how they keep their assignment to the bench.
I found this on how they are nominated to a committee for assignment to the bench. https://www.cbc.ca/news/canada/choosing-judges-in-canada-1.866668. I also believe, but don’t quote me on this, that once a judge is appointed to the bench, either provincially or federally, they are there for life (unless they screw up). I could be incorrect on that. It does give weight, to the argument that appointing of a judge here, if politically influenced, or decided by the government of the day, would sway legal decisions for years to come based on the person’s leanings. Interesting.
I’m not yet sure if I like this way, or the getting re-elected way, every few years.
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Federal judges here are lifetime appointments but state judges are kind of all over the place, depending on the state. Even in Indiana most are elected but some are appointments. Some stand for retention elections that are a yes-no with no opponent.
I have seen advantages and disadvantages of each.
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I think my buddy has been a retention electoral candidate. With elections, you get less of the lifetime duration judge who leans in a particular direction, one would hope.
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Unless that judge is in a place that is lopsided in one direction politically.
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I think many of us would be much more comfortable with the tension between the dichotomy you describe if we had reason to believe that each justice was fully committed to the “impartial” application of pre-existing rules.
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I think this is the rub – something that sounds as simple as impartial application of pre-existing rules is a lot more complex than it sounds, especially when there is a basic disagreement over how the whole thing is supposed to work. And this is not a modern disagreement, but one that has its beginnings over 100 years ago.
I believe that it is easier to ascribe bad faith to judges who rule in ways we don’t like than to dive in and understand their legal philosophy. In all of my years of reading rulings of cases I have been involved in, I can think of perhaps only one where I could not understand how the judge came to the result. I may not have agreed with the result, but I could at least understand how he/she got there. I believe that the same thing applies in our modern Supreme Court disputes. Nobody on that bench is a political hack.
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It seems to me as a non-lawyer that the main problem is the reduction of law to nothing more than power. Many people seem to embrace Thrasymachus’s view that “justice is the interest of the stronger party,” so whoever wins the fight gets to define what’s just. That’s often true from a pragmatic standpoint, but it’s harmful to see it as the essence of the law. IMHO.
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I think there is some truth here, but especially as a perception as you have picked it up. There are some basic disagreements about how the country should be run and since the late 1960s this has been a more-or-less 50-50 split. There has been a tendency of one side or the other to take disputes to the courts instead of to the legislatures and (in what I see as a big failing) the failure of courts to stay out of some of these fights that should be political.
Law goes through cycles just like everything else does. And as I stated, hard cases make for bad law. An example was the GM bankruptcy a few years ago. Traditional bankruptcy law would have either allowed the company to reorganize and pay at least some of the debts or to liquidate for payment to creditors. The courts allowed some kind of hybrid that you or I could never have gotten away with – a new company got formed by the people running the old company, they got to cherry pick what assets they wanted and to dump the rest on the old company. The creditors, stockholders and bondholders in the old company got shafted and management got to start fresh, free of old obligations while running the same operations and selling the same products. I understand how the courts were fearful of sending a delicate economy further into the toilet, but their way of making things work made a hash out of bankruptcy law and fed the perception that you note.
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I. Paragraph 3: You’re lumping the Ten Commandments with Hammurabi and Napoleon? Is there no such thing as divinely inspired or natural law?
II. This idea of “precedent” leads to all kinds of problems. I’m sure you’ve heard of all the ridiculous verdicts judges and juries have handed down over the years. Bad verdicts become precedent, and this corrupts future cases. Each new case should be judged on its own merits.
III. I think the idea that judges weigh the evidence impartially is mostly fantasy. On the Supreme Court, liberal judges vote one way, conservatives the other. Where’s the impartiality? I could be a Supreme Court judge. All I would do is rule the way I want, and let clerks write opinions to justify my actions.
IV. We should have professional jurors. People called for jury duty typically don’t want to be there, have little to no wisdom or knowledge of the law, and no accountability for doing a good job or not. It is also a hardship for many people called. Lawyers also get to exclude jurors they don’t like (another corruption). We also have “venue bias”.
The American system is not as “pure” and “righteous” as many patriotic Americans assume. It was certainly more so when it was created, but many corruptions have degraded it since its beginnings in the late 18th century.
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You raise good questions.
I. My example was to illustrate a code vs. the common law as two very different systems. A code is a code whether it is divinely inspired or the product of a grubby city council back room committee. Those two codes have wildly differing worth, but each is a code.
II. A “verdict” and “precedent”, properly understood, have very little to do with each other. A verdict (whether from a judge or jury) is about the finding of facts. Was the light red or green, or did the guy who left the barbecue grille unattended on the balcony have a reasonable idea that this could cause a fire. Without precedent, the common law falls apart and everything is decided arbitrarily with no idea what the next ruling will be. There is a certain element of this now, of course, but such a system would make the system far worse than it is now, IMHO.
III. There are undoubtedy judges who are political before they are judges, just like there are economists, professors and television personalities who are that way. And the higher up you get in the process the more the big picture comes into play. I can only say that for every legal dispute in which I have been involved, I have understood the ruling (except for perhaps one, and it was on a procedural issue). I may not have agreed with it, but I understood how they got there based on the law and the evidence. There are political hacks on the bench, but I think the differences on the Supreme Court are more about legal and judicial philosophy than they are about politics.
IV. I would be wary of professional jurors. That is kind of what we get in a lot of judges (for bench-decided trials). I see the risk of all kinds of bribery and mischief. How are they chosen? Who goes on which cases? What do you do when one shows a history of bias? Lots of issues. And we kind of have professional politicians too and look how well that has turned out. 🙂
Don’t think I am trying to be critical, I appreciate that you have asked some thoughtful questions.
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