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Some thoughts on our legal system

December 21, 2010

I don’t know about you, but I love me some courtroom drama.  I am talking fiction here, not reality.  Especially movies.  I believe there are three ways of doing a movie based in the courtroom, the first method is to have the good-guy lawyer plead directly to the jury and tug at their heartstrings to rule in favor of his client, usually a wrongfully accused defendant.  This method is the most contrived and has the worst pay-off to the consumer.  The penultimate method is similar to the first, but instead it involves a sharp-tongued lawyer tricking the real bad-guy into “outing” himself in front of the court audience, sometimes to violent effect.  This is much more gratifying to the viewer than the first – everyone enjoys the wily lawyer who can convince the similarly wily perpetrator to admit to his crimes (though it can get a little stale, which is why Law & Order Criminal Intent is no more).  The final method, and by far the one that offers the greatest pay-off is where the overpowered young lawyer, against insurmountable evidence to the contrary, finds a legal loophole or stipulation that allows his innocent client to gain the freedom he so richly deserves.  Generally, we all love this final type of drama.  I believe the enjoyment we receive from this style of movie is truly telling about America, not we the people, but our government.

First off, generally speaking, we enjoy courtroom dramas because it is like viewing a strange and unintelligible world through a focused lens.  Most of us have no concept of legal procedure but we are drawn to watching it because it’s an interesting anachronism, so based on centuries of legal jurisprudence (at least we don’t where wear the wigs).  Plus our legal system is so convoluted, when the genius young attorney pulls the rabbit out of his hat to gain his clients freedom, it appears to be just that, some form of magic trick.  And that is the problem, our legal system makes no damn sense.

The majority of our laws have developed over centuries of common law.  It was evolutionary.  Groups of people came together to address grievances, and the resolution was written down in some form or another.  Methods that worked would be used again, those that didn’t would not.  Over time, a standard set of rules and punishments came into being.  This is the best way to develop rules for a peaceful and organized society.  The main reason is because it is based on practical experience – we learned through evolution what methods most satisfactorily resolved disputes, and which did not.  Unfortunately, top-down law creation is the exact opposite.

Our federal government is an example of this top-down method.  People who support this concept assert it is the only way to ensure an equal and uniform code of justice, but I suggest our legal system is neither legal nor uniform, and honestly, it shouldn’t be.  Obviously the government desires it be uniform, and when they implement it in such a way, it is an abject failure.  Take zero-tolerance rules in our schools.  This is a cut and dry rule saying that anything having to do with guns (or knives) is subject to punishment, regardless of the circumstances.  Thus we are awarded with temper-inducing news pieces telling us of the 5-year-old suspended from school for making a gun with his fingers and “shooting” at this friend, or the 8-year-old suspended because his mom left a butter knife in his lunchbox.  If this is what uniform law and equality promises, I will pass.

Not to mention, “forcing” uniformity on the law means we learn nothing from each other.  The beauty of the actual Constitution was that it made the states into incubators.  Each state could try to tackle the role of governance in the method it decided was best and suited each state’s unique and specific situation.  The methods that worked could then be implemented by other states with similar situations who might have tried a different approach and failed.  But our federal government has no such method.

The Federal government’s approach is to decide something needs to be regulated, and then they start writing a bill.  Of course once word gets out that the Congress is starting to work on a law that affects a certain group of people, those people whom have the money to influence that regulation, begin to do so.  This outside influence eventually makes its way into the regulation usually in the form of waivers for a certain group of people, for example unions being excluded from the DISCLOSE Act.  Again, if this is what uniform law and equality promises, I will pass.

Others claim top-down law making forces the process to be open, allowing the citizens to be aware of what rules and regulations they are subject to, unlike common law which was often just “known”.  My answer to this is, are you freaking kidding me?  Does anyone actually believe it is possible to know every law and regulation we currently live under?  We have so many regulations its impossible to actually get a specific number of how many we have.  Back in the common law days, you didn’t have to hire an attorney to redress your grievance, you just showed up and explained what happened.  What happens nowadays if someone wants to represent himself in court as is his right?  Most often they are thought of as crazy, and are appointed a lawyer anyway just so he can properly navigate procedure.  I would say this is the exact opposite of being aware of the rules and regulations we are subject to.

The beauty of common law is it is based on common sense, hence the phrase.  The failure of top-down law is it is based off nothing but the desire to regulate.  It is a heavy-handed system that results in nothing but the exploitation of those whom have no political power by those who do.

Oh well, enough of this talk, The Devil and Daniel Webster is on TCM.  Gotta see how Daniel beats the Devil through his elegant and patriotic speech to the jury of the damned.  It might follow the first method of making a courtroom drama, but it is still a fine tale.

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2 Comments leave one →
  1. December 21, 2010 10:51 pm

    Interesting post, Colin. I have always said that evolution didn’t exist and here it is, right under my nose. I suspect our founding fathers would roll over in their graves if they could see how our legal system has “adjusted” itself.

    • December 22, 2010 2:05 pm

      The difference is a top-down legal system is not evolutionary. Our founding fathers knew the top-down system did not work, that’s why they did not enumerate very many powers to the federal legislature – it is the bastards that have followed that have screwed everything up.

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