This post represents my small attempt to address some of the many issues raised in the comments to the post entitled “Does ‘The Law’ Exist?” Please feel free to contribute your thoughts in the comments section below.
I begin with two basic presumptions:
· We no longer ground our perceptions of the law in natural law theories (i.e., there is no “The Law”); and
· If we no longer believe in natural law (and therefore, “The Law”), our conception of the law must be based on something else.
Before we get into what this “something else” might be, I want to quickly address one of the reasons why it is important that we know what the law is based on.
Unwritten vs. written law:
We expect the laws to be written so that we are “on notice” as to what our respective rights and obligations are. (But contrast our written law system with that of the UK, and even early American common law, where judicial opinions went unwritten, for want of necessity and/or resources.)
Technically speaking, common law and statutory law are written: Common law, in judicial opinions; statutory law, in the codebooks (as well as in judicial opinions). However, the law cannot be drawn so narrowly to apply to every conceivable factual scenario. For that reason, much of the law is necessarily broad, and we leave it up to judges to apply the law to specific facts. Because we don’t know how a judge will decide a particular case, this gives the law some element of uncertainty.
Whatever uncertainty we ascribe to the law may be due, at least in part, to the practice of judicial interpretation (here I bracket the separate issue of juries and unwritten law, which involves even more tenuousness than where judges are concerned). It seems to me that judicial interpretation lies at the heart of this problem of unwritten law, for how are we to know on what bases a judge has interpreted the law? Is she appealing to her personal moral values? Community values? Economics? Religion? Astrology? The voices in her head? Tea leaves? You get the picture.
The elusive “something else”:
So what is this “something else” on which the law is based? I would say judges ultimately base their decisions on our shared values, and not, say, oracle bones. If we can agree that the purpose of the law (a purpose, anyway) is to maintain order in our relations with one another, we can also agree that the law must be based upon standards on which we all agree. What society deems to be reasonable and acceptable, and therefore permissible, constitutes our shared values.
Would a judge issue an opinion that stands largely at odds with what the rest of society deems acceptable? Highly unlikely. There are many reasons for this, but some of the most basic reasons are as follows:
- Judges (at least those of lower courts) will be held accountable for their decisions by higher courts. No (sensible) judge wants to be told that he was wrong. His opinion, therefore, will be based – as much as is possible – on precedent, which represents our shared values. Precedent is only overturned when our values have shifted; even then, it is really only higher courts that change precedent. We notice a shift in values through common indicators of social change, such as when issues gain public recognition, the media gives attention to the issue, momentum builds, politicians are urged to support one side or another, and sister courts begin to alter their holdings, among other indicators. The resultant changes in the law reflect changes in culture and society;
- Even the U.S. Supreme Court, which is the “highest court in the land,” and whose decisions are not subject to review by any higher judicial body, is still concerned with meeting some minimal level of social acceptability. As we are commonly reminded (in law school, anyway), SCOTUS decisions set the legal floor (and state courts set the ceiling). The SCOTUS must consider what legal standard would be acceptable to all fifty state jurisdictions (and territories);
- Finally, judges (and citizens, and lawyers (for the most part, unless it is in their clients’ interests to the contrary)) want the law to remain stable and predictable. Constantly revising the law does nothing to accomplish this end; upholding precedent (which, again, represents socially-acceptable standards) does.
But just because we would like the law to complement our shared values does not mean that it always does. (See, e.g., the debate between the government and the public over what constitutes torture under law.) Some judges (and I would say, to a larger extent, our legislators) are able to get away with creating legal standards that are out-of-line with what most Americans would deem acceptable.
This is an unfortunate tragedy in our legal system; what is fortunate, however, is that we have in place several corrective measures that may be invoked to set right these divergent legal standards (e.g., appealing lower-court decisions to higher courts, seeking review by the SCOTUS, seeking corrective measures through legislation or ballot initiatives, etc.). For the most part, though – and forgive my idealism, as the world has so far failed to jade me – our judges can and do render opinions that are widely accepted, and any incongruent legal opinions are eventually set straight.
So how do we measure these social values?
Surveying public opinion:
If it is true that judges do base their opinions, at least in part, on shared values, then do we have some way of measuring what those values are? It is difficult to conjecture what people truly think without actually testing our hypotheses. However, the remedy suggested by Ben – surveying public opinion – could become rather costly, in terms of both time and money (among other things). Imagine if we had to survey public opinion for every area of the law (or, heaven forbid, every case!).
Even if we were to measure public sentiment regarding only the *most important* issues, 1) how do we decide which issues are of greatest import?, 2) who makes that decision?, and 3) to what extent do we survey the public (i.e., how large a sampling, will this sampling be surveyed multiple times to ensure consistency, etc.)? Questions of research design aside, and practically speaking, I think something like this would inevitably forestall the enactment of any important legislation (although it certainly would prove a boon to Zogby and other pollsters).
Unfortunately, I have no solution to offer. How do we gauge public opinion and public values? My only response would be that I don’t think our shared values are so vascillating that we can’t gauge them with a fair amount of accuracy. I already listed a number of ways in which to gauge public sentiment above. Should we require that judges undertake to conduct an even more extensive analysis of the Public Opinion of The Moment? I don’t think so.
Legislators and public opinion/values:
(Going off-topic just a bit…) I admit, you caught me red-handed in paying lip service to politicians. (But compare my first comment to this post.) You’re right that politicians are motivated by concerns additional to simply pleasing their constituents (lobbyists being quite a festering sore on the American political institution).
However, I wouldn’t completely disregard the effects that a dissatisfied constituency can have on a politician’s tenure. See, e.g., U.S. Senate Election 2006 (wherein no incumbent Democrat was voted out of office, but six Republican incumbents were defeated by Democrat challengers). The phenomenon of incumbency advantage isn’t necessarily due to a politically-unaware constituency.
Consider other potential causes for tenured incumbents: The incumbent enjoys greater name-recognition than challengers; she belongs to the “right” political party; she has more political capital by virtue of having served in office for so long; she has more financing available to her; and, she simply has more experience in office (which appeals to her politically-aware constituency). To assume that incumbents stay in office solely on account of a disinterested public would be a failure of imagination. Determining the precise breakdown of politicians’ incentives in appeasing public sentiment versus special interest/lobby groups, however, may require additional study, rather than mere speculation.
In any event, I don’t think we can completely disregard the fact that politicians are held accountable by voters. That being said, I still maintain that legislators would be ill-advised to pass laws that fail to conform with their constituents’ ideology.
