Foundations of Anglo-American Law

The "Have you ever served on a Jury" thread seems to have evolved to the point where a new thread focused on the foundations of our legal system is justified. There seems to be a great deal of ignorance and misunderstanding about our legal system, even among some in the legal profession.

Shakespeare has one of his most popular characters say, "First, we will hang all of the lawyers". I'm sure that wasn't the first lawyer joke, and lawyers are usually the best sources of that genera of humor. Knowledge about our legal system is, however, almost entirely confined to those who study the Law. That is unfortunate, especially in a land where the Will and sovereignty of the People is expressed through Law and the Constitution. It's disturbing when one hears popular clamor for radical change in our legal system.

The integrity of the system is founded upon the faith that the People have in its ability to deliver justice impartially. That system is, and always has been, under attack and accused of the most heinous faults. There are Courts clogged with individuals charged with crimes, acts that society at large sometimes doesn't even believe should be crimes. There are innocents convicted and executed, while guilty monsters are set free by a "technicality". Corruption is said to flourish.

There are several characteristics of our system that distinguish it from others. Separation and independence of the legal system from the Executive branch is enshrined in the Constitution. Crimes are acts, not thoughts. A person cannot be tried or punished for that which was not a crime at the time the act was committed (Ex Post Facto, or Bills of Attainder). An individual must be reasonably charged with breaking the law before arrest and trial. Trials must be open to the press and public, unless the State can clearly establish that to do so would endanger the nation. The burden of proof lies with the prosecution and the State, not the individual charged. The Judge alone supervises the law by which a trial is conducted, and the jury's duty is to evaluate the facts derived only from the evidence presented by the prosecution and defense teams. A person can only be tried once for a particular crime. The outcome and conduct of trials are subject to appellate review, where the applicability of the law and the judge's decisions are the focus, and facts are generally accepted.

Each of these, and other fundamentals of our system are complex issues and the result of historical evolution. In our system each of the fundamentals is questioned again and again by attorneys as judges interpret general rules to fit them to specific cases. Our legal system is never complete, never so set in stone that it cannot be adapted to meet the changing world that it must serve. That which was once a crime may, by the change of social values and fashions, becomes a positive virtue. Other acts that in one time and place that were acceptable as praiseworthy may later be criminal. As the world changes, so do our ideas of what should be promoted, or discouraged. The Law is meant to provide structure, and predictability, to insure social stability.

Let's discuss some of those principles; the history of their evolution, and perhaps a better understanding of this most essential foundation for our very lives will result.