7/13/2007

Thoughts on the "Two Kinds of Law"

It occurred to me not long ago that there are really two kinds of law. One 'kind' of law is what the average layperson thinks the law is, and should be, and the other is more akin to what the law really is. On reflection, the layperson is probably correct in the 'should be' department, because the first 'kind' of law is relatively straight forward and relies on common sense.

It might better satisfy one's need for propriety of thought in this regard if, rather than approach these two analyses as different kinds of law, we merely view them as different analytical approaches to problem-solving. For purposes of my chain of consciousness, one-draft essay, though, I will refer to them as two kinds of law.

The first kind of law is black letter law, or hornbook law. These are "principles of law which are generally known and free from doubt or dispute." Black letter law is fairly simple (but not, necessarily, simplistic), paints in broad strokes, and can be applied to most situations in a manner that is readily understood by anyone with half a brain and a moment to listen.

When a friend asks a lawyer a legal question at a party, the lawyer will typically apply principles of black letter law to the analysis. A friend, even a slightly intoxicated one, can usually understand such an analysis with no legal training, and these principles of consideration will usually lead lawyer and friend to a reasonably 'correct' analysis in a drink or two.

But, alas, that is not what the law really is. Human beings are students of complexity, and lawyers are no different. The second 'kind' of law, is in reality a very complicated, procedure-driven engine that attempts to grind toward precise outcomes on precise issues arising from imprecise situations and even less precise memories.

The complexities and seeming anomalies in the real law are driven by those found everywhere in the world, from agendas of legislators in long ago legislatures, to seemingly contradictory court decisions motivated perhaps by result oriented courts. At its worst, real law can become a morass of legal standards, factors, and three part tests articulated in so many different ways that at the end the lawyer realizes it's "all just words," and the meaning is in the eye of the beholder. At its worst, it is a difficult case made even more difficult by parsing detailed factual situations into issues so diverse they resemble a decision tree that loops back on itself. At its worst, the 'real' law can render a case essentially untriable, at least if one wishes to retain any fidelity to notions of justice and "the law."

This is not, however, to suggest that our legal system is unjust or that it fails to often reach a just result. It is to suggest instead that we in this system constantly totter on the edge of meaningless, and that we need to remain ever mindful of and faithful to black letter law.

Because the lay people are right; this is what the law should be.

(If there is interest in this subject, I would be happy to write more on it, perhaps with reference to specific examples in the law.)

16 comments:

ZenPanda said...

As a "civilian" I view the law as "cut & dried" or "black & white" when I read about or hear about different things.
I would like to read about a lawyers' view of the law.

Treasure State Jew said...

Because of the nature of my family's professional endeavors, my wife and I spend a lot of time talking about tax law. (Yes, we are terribly exciting people).

You want an area where actual law varies significantly from black letter law, I submit that you should look no farther than our tax codes.

Worse, call the IRS with a moderately complicated question. If you call five times, you are likely to receive five very different answers.

PK said...

Dear Mr Geeguy,

I think this line of thought is worth pursuing but it does become a kind of expanding discussion.

My own (lay) perspective of the law changed by listening to a Bill Buckley led discussion about the purpose of "The Law". It was clearly impressed that the primary purpose of the law was to reduce tension in society with justice being secondary or even collateral.

I don't remember now if any of the participants were in fact legal authorities.

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.

An appropriate understanding of what the law is and how it works in our legal system underlies realistic expectations of the law.

So yes, pursuing this discussion would be another service you provide to readers of your blog and the community at large.

Thanks.

PK

Anonymous said...

The biggest fault of our modern legal system is the loss of justice. The entire industry of law enforcement replacing peace officers is a sad testament to our society.

WolfPack said...

Which class does the 3-minute rule apply to? One would think that freedom of speech would be one of those black and white issues but when a specific example is put in front of you it gets kind of gray. Don’t others have a right to only have to hear so much of your speech? I may have it wrong but to me “free speech” only means the government can’t limit the content of your speech but they certainly can limit the means, duration and times of your speech without regard to content. If not there would be no order to our public discussions. Many laymen agree with me and many strongly disagree with my interpretations.

This makes me wonder if there are really two kinds of law or one is just the other put into action by people. PK’s quote about the purpose of the law not being justice but more to “reduce tension in society” somewhat troubled me at first but after thinking about it more, that may be the more pragmatic view.

Anonymous said...

Anon, how do you define "justice"?
Is justice created by public, enforceable, authoritative rules, and injustice is whatever those rules forbid, regardless of their relation to morality?
Is justice the morally right assignment of good and bad things? Or a combination? how do you lose something that is, in reality, a personal ideal, created by each individuals own sense of right and wrong?

Anonymous 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!

Anonymous said...

Some of the comments make me wonder who has bothered to read the Federalist Papers lately, if ever.

A discussion on the law would be fabulous and please, keep linking us to information.

Thanks!

Wulfgar said...

Since I took multiple options in getting my degree, one was the 'pre-law' in which I found myself in serious debate with a whole bunch of proto-lawyers. Though I don't remember who originally said it, I point to one of my classmates who explained that the law was a rubberband, 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".

Though I would love ... desperately ... for 'black letter law' to be the rule, the conditions of our lives are not so easily defined.

And, we need to constantly keep in mind that the so called 'black letter law' is written by people who desperately desire rules and order, and frequently ignore complexity in favor of having been akin to 'deciders'. As such, we frequently end up with the ridiculous and counter-productive 'on the books'.

Seriously, Gee Guy, if you want to pursue this line of thought and writing, I will greedily devour it.

Anonymous said...

RE: the law was a rubberband, pulled and stretched by the aims of lawyers. Whoever pulled it furthest to their side ... well that's the law.

Interesting analogy.

It causes me to reflect upon a statement about how sectarian philosophy hostile to traditional religion has its own orthodoxy.

Who has a greater stake in good government and preservation of basic constitutional guarantees? Judges? Lawyers? Laymen? Or better yet, those who "value and understand a commitment to the necessity for a spiritual foundation of that law in society?"

Anonymous said...

In the context of black letter/real law where does the Overfield incident sit we must ask ourselves.
Wolfpack sounds like a city employee, if not a commissioner, in his attempt to keep the issue on the 3-minute rule. I was there, that was not what Overfield was talking about.
I watched the man before her be allowed to ramble on with many warnings, but nobody hauled him away. He wasn't talking about anything on the meeting agenda.
It is not the 3-minute limit that's the topic we should be looking at, it's what Overfield spoke about. The city, the Animal Foundation and the police, their unholy triad and their illegal doings. Black letter or real law, why is it not one lawyer or citizen in town is discussing that?
I heard her reading, not being "combative". I heard her "stay on point" which was about the bid process and who got it and why. I saw a man grab her from behind and pull away from the stand. I saw her, not escorted as the mayor would have you believe, but dragged through the room asking to be let go of until she finally did something about it. I then followed the media and they didn't report accurately or fairly. This is the black letter law you write about and, you are correct, I am a layman and it's easy for me to understand. This was wrong. This was illegal. As a layman I depend on the 'real' law to put this right. It's not doing that. It's going after Overfield when it should be going after the police, the city council and investigating the cover up and all the illegal doings. I think that makes it more like 'surreal law.'

Anonymous said...

"but to me “free speech” only means the government can’t limit the content of your speech but they certainly can limit the means, duration and times of your speech without regard to content."

Since when did we the people become subjects of the government? You must be a government employee wolfpack with that attitude. Do you believe citizens are above or below the government?

Anonymous said...

"We the People" are The Government insomuch that the creation of government cannot exceed the creator of said government.

Unless one is a pragmatic rubberband man insisting upon a 3 minute rule, (playful slap)...

The baseline for a law discussion taken from originators of the Constitution writings and arguments could “reduce tension" in Ecity Weblog Society.

It could be a challenge for those of us who would like to learn more to link ideas, feelings, and thoughts to documentation from the original writings and discussions by the Founding Fathers.

(eeks, do I sound like a 4th grade teacher?)

WolfPack said...

Too many anonymous's to try to reply signally. Pick a name to allow a discussion. The reason I brought up the 3 minute rule is that I think it shows how complicated seemingly simple legal concepts can be. Many people think free speech means one thing but it really means another. Geeguy who dislikes the 3 minute rule and is a lawyer acknowledges that it is legal. Yet many laymen posters continue to rant about city illegality for choosing to enforce it. The rule may go away, not because it is illegal but because it may “reduce tension in society”. The connection back to Geeguys original post being the disconnect between layperson law and what the law really is.

Anonymous said...

Wolfpack-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. Also, while instituting a limit may be fine, they abridge the First Amendment in that an unspoken content suppression takes place. Some speak, others are silenced and led out. Overfield is NOT the first to be taken out of a meeting. What about the Federal investigator a couple of months ago who queried about the missing 2+ million from the coal plant monies? They cut him off very quickly and took him out.
Real law is ignoring much of this, but black letter law is seeing it clearly. THAT is what is causing "the tension in society." RN

Anonymous said...

shows how complicated seemingly simple legal concepts can be.

“… society cannot exist unless a controlling power upon will and appetite be placed somewhere; and the less of it there is within, the more of it there must be without. It is ordained in the eternal constitution of things that men of intemperate minds cannot be free. Their passions forge their fetters.” (Leo Rosten, A Trumpet for Reason, Garden City, N.Y., Doubleday, 1970.)