Lawyers learn the law by reading thousands of appellate judicial decisions during three years of law school. This is known as the case law method of learning the law. These case law decisions form the body of America's common law which is ultimately derived from English common law. Does our common law system make sense? If our judiciary does not follow the The Rule of Law commensurate with the common law then lawyers cannot properly counsel their clients on how to proceed.
(If you are a lawyer and are comfortable that you know the precepts of our legal system under the common law, please don't give up yet -- read on.)
The Rule of Law -- We are supposed to be a country governed by The Rule of Law. The Rule of Law is defined in Black's Legal Dictionary as a legal principle, of general application and usually expressed in the form of a maxim or logical proposition. Wikipedia observes that The Rule of Law means that "...no one is above the law", not even England's King John who was required to abide by the law through the Magna Carta.
John Rawls, a Harvard professor, wrote in his seminal book, A Theory of Justice, that the purpose of The Rule of Law is to protect citizens through the regular and impartial administration of public rules. Rawls goes on to point out that "One kind of unjust action is the failure of judges and others in authority to apply the appropriate rule or to interpret it correctly." He observes that injustice does not necessarily come about by revelation of judicial crimes or corruption, but rather through "...subtle distortions of prejudice and bias as these effectively discriminate against certain groups in the judicial process."
Common Law -- Basically, common law is judge-made law (case law) as opposed to law made by legislators which are either statutes or other written rules. In the comedy that holds forth in the United States Senate Judiciary Committee hearings for federal judicial positions, the concept of stare decisis is inevitably discussed. Stare decisis requires judges to adhere to principles of case law (also known as precedent) previously settled by the courts when the facts are substantially the same. Knowing that judges are required to adhere to these rules of law permits hard-working lawyers to supposedly predict for their clients what judges will do in a given fact situation.
Loopholes -- The current problem with this seemingly orderly process is a concept known as legal realism. Legal realism occurs when judges do whatever they want to without regard to stare decisis depending on how the judge feels that day and depending on who they like among the lawyers before them that day. In short, we have the very problem Professor Rawls warned about over thirty (30) years ago.
A closer examination of the concept of common law reveals the following. The common law is also the embodiment of "....broad and comprehensive unwritten principles, inspired by natural reason (see below) and an innate sense of justice." See 15A American Jurisprudence 2nd, Common Law, page 593, et seq. The term 'common law' has no fixed meaning since it varies from state to state and varies with time. Moreover, it mixes the concept of 'natural law' into the laws that judges make. What the heck is natural law anyway?
Natural Law -- Natural Law is a system of rules and principles for the guidance of human conduct which are independent of enacted law or those systems peculiar to any one people, and which might be discovered by the rational intelligence of man. Black's Law Dictionary, page 1177
Lest you think this is just mental gymnastics, think again. Mark Tushnet has recently written about the Rehnquist court in his book A Court Divided., WW Norton & Co., (2005). There Tushnet points out that natural law jurisprudence guides Justice Clarence Thomas in his approach to United States Supreme Court decision-making. Justice Thomas along with others have chosen the President of the United States and in his speeches, Justice Thomas has made it clear about why he invokes natural law. "He said that the Constitution framers held the natural law view and the Constitution they adopted used terms that should be interpreted in light of those views." A Court Divided, page 94 Justice Thomas's views on abortion are consistent with his views on natural law notwithstanding that precedent is contrary to his views.
The Problem -- So, where does this leave America's jurisprudence and justice in the United States? Do judges at any level have to follow precedent (stare decisis, The Rule of Law, case law, judge-made law) or can they do what they want depending on how they feel that day and depending on which lawyers they like on that particular case under the precepts of the common law and natural law?
I can tell you what I have observed in over thirty (30) years of applying the law in every state of the union. Most of our judiciary are doing exactly what they want to do, ignoring The Rule of Law at every level in state courts and in federal court. There is no citizen protest and no accountability by the judiciary to those citizens. The legions of books written about our judiciary are confined to the United States Supreme Court and are benign because no one wants to upset the apple cart. In consequence, your local lawyer has no way of predicting outcomes for clients free of bias, whimsy or subtle discrimination.
Whispers and Wisdom from your small town lawyer -- Common law does not make common sense. At common law, a woman who behaved badly or was too noisy was subject to criminal sanctions "....for the crime of being a 'common scold'. Thus, if legislators have not specifically addressed a subject by statute or written rule, then the common law steps in to fill the gap. At common law if a woman acted as a shrew or was quarrelsome, then our legal system could criminally punish her for being a 'common scold'. 15A American Jurisprudence 2nd, page 621, et seq.
Common law makes no sense. It does not give the public the predictability they are entitled to under our defective legal system. We should demand that judges adhere to stare decisis and the precedent of established case law. The entire legal system needs to be accountable to the needs of the public rather than serving the narrow interests of the judiciary. It is an appropriate time to act. Chief Justice John Roberts is asking your elected United States Congress for a raise just now.
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