Thoughts on the "Two Kinds of Law"-Part 2

I was glad to see so much interest and discussion on my earlier post about the law. It never ceases to amaze me how many engaged, intelligent people frequent the blogosphere. The different points of view usually help me change or refine my own views. And for that I am grateful.

Ok then, now that the mutual admiration society has adjourned, I am not sure any commenter really caught the meaning of my post. I hope to expand on that meaning in a later piece, maybe tomorrow if the big blue room will let me have some time off.

In the meantime, I wanted to take an opportunity to respond to some of the comments to keep the discussion going.

Comment: ZenPanda views the law as "black & white." That's sort of what I was alluding to, but not quite. You see, some parts of the law are "black & white." And I recognize that, like Treasure State Jew opines, even the parts that are fairly well-defined (if still highly complex) are subject to interpretation to the point of enriching many lawyers and other professionals.

Maybe I am putting too fine a point on it, but that is not quite what I was driving at. Zen and TSJ are, in my reading of their comments, discussing statutory law and its myriad interpretations. What they are discussing is but one aspect of what I was trying to raise.

Some people's comments raised another important point, although not directly what I was talking about, and this is the notion of objectivity. One person said: "Although our legal system seems to work well enough, certainly there are many participants at one level or another that don't necessarily feel it is just." Perhaps more to the point, another person weighed in as follows: "There is no justice in our legal system! It is extremely flawed! The rich get off and the poor little guy gets screwed because he can't afford the high powered attorneys and experts to bolster his case! Been There!"

The latter comment, especially, betrays the difficulty of a subjective analysis of a party. I have not met many persons involved in lawsuits who were not convinced of the complete rectitude of their positions. From a party's subjective point of view, then, when that party loses, an injustice has been wreaked upon the society.

Remember, though, that the person on the other side of the case no doubt feels as firmly as you. When he wins, he feels society has been served justice. It is often a zero sum game.

Imagine the difference, then, if you are a facilitator of the system rather than a participant. Can you imagine why a lawyer's point of view is more objectively geared to recognizing the other party's strengths? I would submit that a lawyer without objectivity will soon be out of business.

Wulfgar weighs in with a great analogy, that "the law was a rubber band, pulled and stretched by the aims of lawyers. Whoever pulled it furthest to their side ... well that's the law. Those words ring true to this very day, and that's why I have little more than derisive laughter for those who cry about 'activist judges'." He makes a point, but I disagree with him on his last conclusion.

Somewhere along the line, it was decided in jurisprudence that the best way to reach a 'just' or 'fair' result in the most cases is an adversarial approach. The parties' attorneys act as advocates and adversaries. Assuming reasonably competent attorneys on both sides and no significant mismatches of talent (which in my opinion occur far less frequently than the average person believes they do), usually the tugging in different directions will reach the best result, probably something in the middle. (Lawyers often refer to this as cutting the baby in half, something many judges tend toward and not altogether wrongly.)

I disagree with him about the lack of activist judges, though, because for all of us lawyers pulling on the rubber bands, ultimately it comes down to a judge who decides who wins a particular tug of war. I will tell you for a fact that there are certain individuals who are more inclined, indeed whose very philosophical outlook leads them, to view the law as a changing, evolving process that should accomplish what they believe to be justice. (Note the lack of reference to political persuasion.) Someone who is willing to change or ignore precedent to achieve changing outcomes, as opposed to recognizing changed circumstances, is absolutely an activist judge. And they absolutely do exist.

Next, the 3-minute rule raised in several comments, and defended by Wolfpack. (Who, by the way, I know and who does not work for City government.) In a way, the Overfield case illustrates what I have been talking about. In other words, how does "Congress shall make no law ...abridging the freedom of speech, ... or the right of the people peaceably to assemble, and to petition the government for a redress of grievances" translate into a citizen being forcibly removed from a public meeting?

On the other hand, the Overfield case is a fairly mundane legal proceeding. We have a rule that is most likely legal and it was enforced. Overfield will assert her defenses, and a jury will decide the friction between rights and obligations.

Actually, I think this person came the closest to what I was discussing: "It seems many items passed by the city commissioners have been done so in closed meetings. The 3-minute limitation is one such example. That would make it null and void as it is in direct opposition to the state law." And, I hope to use this post as a springboard for further discussion.

Finally, I apologize if some of my comments seem contradictory because they might be. This is a weblog, not a scholarly paper. I do not have time to do extra research, and I view this more as an exercise than a result. In other words, from your comments, I learn a great deal about your viewpoints, and my own.


ZenPanda said...

I still am looking forward to your posts on this subject.


Anonymous said...


WolfPack said...

"There is no justice in our legal system! It is extremely flawed! The rich get off and the poor little guy gets screwed because he can't afford the high powered attorneys and experts to bolster his case! Been There!"

Poor get screwed in criminal court and the rich get screwed in civil court. Frivolous lawsuits are rarely brought against the poor. The justice system is an equal opportunity discriminator.

Treasure State Jew said...


You are going way beyond simple law here and to something much more basic (and important). What is the purpose of law? What is justice?

Plato once wrote (as part of an argument he was disproving) that justice was nothing more than minding one's one business -- but minding it well. (See chapter 4 of the Republic.) He also wrote, in The Statesman, that the purpose of law was to administer justice in the absence of a perfect ruler.

Plato recognized that law was imperfect. However, he also recognized that it was necessary.

People throw around words like justice all the time. Unfortunately, most of us have very different ideas of what "justice" actually is. Most only have a vague notion of the idea.

What we need is a definition of justice upon which we can all agree. However, it will take more than a few blog posts to continue such a conversation.

And don't give me Rawls as an answer. All he did was restate Plato.

GeeGuy said...

Rawls? Lou Rawls? Breaking My Back (Instead of Using My Mind)?

GeeGuy said...

P.S. I am not so sure that "justice" exists.

WolfPack said...

Judge Dredd knows justice.

Treasure State Jew said...

That, my friend, is a very sad comment. For law can never be anything other than the organized implementation of justice. Otherwise, law is nothing more than a tool used to consolidate power.

GeeGuy said...

So now you're a critical legal studies scholar?

Treasure State Jew said...

no, but I did stay at a Holiday Inn Express last month ...

Seriously though, isn't this what you are talking about? The nature and purpose of law?

GeeGuy said...

To a degree, yes. But not on such a philosophical level.

My observations related more to the dichotomy between relatively straightforward, simple legal principles and highly complex, drawn out legal proceedings.

Treasure State Jew said...

Geeguy; To a large degree, I think you are pointing out the difference between the ideal and the real. In an ideal world, everything would be intuitive. However, EVEN WITH THE BEST OF INTENTIONS AND PURPOSE, real life gets more complicated.

Intuitive rights sometimes conflict with each other. Therefore, balance must be found between them. Some of that is done through procedures that are decidedly not intuitive.

I guess I can stop pretending I am back in college philosophy class now. However, it has been a really long time since I have had the opportunity to debate Rawls v. Nozick.