Whatever Happened to Justice Ch 17

Discovery vs. Enactment: Key Differences

• Common Law (Discovery): Common law is a process of discovering principles, not creating them. Courts existed before laws were codified. Judges sought to discover and apply Natural Law, analogous to scientists who find and refine physical and chemical formulas. The common law system evolved gradually, case by case, and over many centuries.

• Political Law (Enactment): Political laws are enacted by legislators, reacting to political pressures. Unlike discovering principles, political lawmaking creates arbitrary laws. Truths change, as rights and wrongs shift dependent on political pressures and the legislators' aims. There's no attempt to discover Natural Law.

Common Law Characteristics

• Evolutionary: Common law developed gradually over time, meticulously refined through court precedents.
• Natural Law-based: Judges aimed to reflect inherent natural laws; the idea that there are higher principles independent of human laws.
• Problem-solving: The courts attempted to resolve disputes fairly rather than create new rules.

Political Law Characteristics

• Arbitrary: Political laws are often based on temporary political pressures rather than underlying principles. Laws can change frequently and change based on political aims.
• Man-made: Political law is seen as the product of humans' will, not an existing, discoverable, fundamental principle.
• Lacks permanence: Legal truths under political law lack permanence. Something considered right today may be wrong tomorrow.

Volume and Complexity of Political Law

• Excessive Legislation: The US produces a vast quantity of laws, rules, and regulations annually (over 100,000).
• Unmanageable Volume: The sheer volume of laws makes it difficult to comprehend and implement; this leads to confusion and poor outcomes.
• Regulatory Explosion: State legislatures alone created nearly two million new laws (and the regulations they spawned) between 1976 and 1986 alone.
• Lack of Understanding: Lawmakers frequently fail to understand or adequately study the laws they create.
• Inability to Read and Understand: Laws are often so complex and numerous that even those who make them struggle to understand every detail.

Critical Assessments of Political Law

• Arbitrary and Primitive: Political law is considered an outdated way of establishing rules, akin to earlier eras of primitive human societies and tools.
• Harmful to the Economy: Frequent changes to legislation create market instability, making accurate business planning near-impossible.
• Example of Absurdity: Numerous absurd and outdated laws have been enacted, demonstrating a fundamental disconnect between the law and reality.
• Loss of Trust in the System: Laws are seen by many as a "running joke" due to their frequent, illogical changes. This erodes public trust in the legal system.

Historical Views on Law

• Madison's Concern: James Madison stressed the dangers of complex and incomprehensible laws.
• Patrick Henry's Warning: Patrick Henry warned that unchecked legislation could transform law makers into arbitrary deities.
• Samuel Adams's Opposition: Samuel Adams argued against British legislative encroachment upon colonial rights.

Relationship between Law and Society

• Litigation Explosion: Society has shifted towards excessive litigation, with more individuals participating and seeking remedies in legal avenues.
• Impact on Creativity and Innovation: The massive amount of legislation stifles innovation and creates an environment overly focused on litigation.

Explore the fundamental differences between common law and political law in this quiz. Understand how common law seeks to discover innate principles, whereas political law is influenced by legislative actions and political pressures. Test your knowledge on the characteristics and implications of both legal systems.