by Michael Patrick

Created on: December 03, 2008

American law is institutionally blind and, therefore, not always in agreement with our hopes for real justice. Law, itself, is a moronic instrument, not unlike a computer, that responds to the best input (or argument) offered in light of "stare decisis," a Latin phrase for the doctrine of legal precedent: in other words, that which has been adjudicated in the past leads inexorably to how future judgments will be made. Whether that legal history is justified, whether it gives reasonable insight to a specific moral or ethical conflict, is up to the judge who would much rather rely on precedent than set precedent.

Roman senator and historian Publius Cornelius Tacitus in the First Century AD said, "As formerly we suffered from crimes, so now we suffer from laws."

The problem is that there are good judges (the biblical Solomon comes to mind) and notorious judges like Judge Roy Bean, the "hanging judge" of the American West. Actually, Judge Bean was far more temperate in the 1890s than his peer, Judge Isaac Parker of Fort Smith, Arkansas, who sentenced 172 men to hang.

American law is based on the Judeo/Christian Ten Commandments that set basic standards of human behavior. Beyond those tenets, every ruler in history randomly established laws to secure his or her dominance, protect his or her property and ensure the succession of his or her progeny to the throne. That was pretty ad hoc and couldn't work as cultures expanded and interfaced with other groups with conflicting mores and disparate values. In the Western world, the Magna Carta was signed in 1215 by King John of England which began the legal tradition of rights of property, habeas corpus, and was the founding theory for America's legal system.

The doctrine of habeas corpus permits an accused the right to appeal against "unlawful" or unreasonable imprisonment. And that's where the "law" began its evolution to a "system" defined by the clever expression of those who understood the law (lawyers) and could mount convincing arguments in favor of the prosecution or the defense. The doctrine of common sense (apparent to everyone) became less important than a well-crafted legal argument understood only by a select intelligencia of attorneys and judges. Justice in its purest form began to lose prominence to the articulation of a compelling argument.

American jurisprudence suffers from that evolution. To be fair, laws can't and don't make us do anything; they can only guide us away from committing an error that offends

• 1
• 2
• Next Page >>