Foundations of Anglo-American Law

Reply Thu 12 Dec, 2002 11:44 am
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.
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Reply Thu 12 Dec, 2002 11:57 am
One quickie tangent: The Shakespearean quote, "First thing we do, let's kill all the lawyers." is by Ned the Butcher in, um, I think it's Richard III. And it's not meant as a joke; it's intended to be an expression of the first thing one should do if you want to live in an oppressive society.
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Reply Thu 12 Dec, 2002 01:05 pm
I stand corrected, and apologize for the slight misquote. The line often gets a good laugh in the theater, though it is truly not a joke at all. I suppose we could have a thread of lawyer jokes.
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Reply Wed 21 Jun, 2006 11:06 pm
Separation of church and state
I have an axe to grind here. Maybe you will grind it differently.

It seems to me the United States' original separation of church and state principle did not refer to legislating morality; rather, to previous governmental structures based on "divine right of kings" to rule. Kings got their mandate from the "official" church who declared the royalty in question legitimately mandated by the almighty to reign.

Today I hear people saying i"separation of church and state" assures nothing religious can intertwine with law or government,.

Discussing that with my son, the lad said times change--and Constitutional principles evolve with them. Therefore, the old "divine right of kings" no longer denotes "separation of church and state," and a modern secularist connotation is what it's all about. What the founders had in mind is not as important as an adaptive government.

Those who evangelized to abolish slavery did not do it on one-man-one-vote, or proto secular libertarianism. They wanted to create a model nation that made holy law from the Bible the law of the land and citizens the sanctioned rulers. Although people both defended slavery and opposed it with Biblical quotes, the minority anti-Constitutional evangelist fanatical Christians agitated to ban slavery because they considered it immoral. They asked others to declare it immoral and to demand that the government enforce _their_ morality.

By that standard today, why would it be a problem with separation of church and state to define marriage as a pact between a male and female? (I happen to support gay marriage, union, etc.) What seems to escape people yapping about church and state today is that the public morality is what the public majority says it is. Don't like it? Change it. Gay marriage becomes public morality as much as banning gay marriage.

Maybe this will raise some legal debate.

SM Evil or Very Mad
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Reply Wed 21 Jun, 2006 11:09 pm
Thanks so much, Jespah. I never knew that.
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