Here in the United States we have a common law system. What that means is that in determining what is or is not the legal outcome in any given case that comes before the court the judge takes into account not only the law as enacted by the legislature but precedent, the previous decisions of judges. The sheer volume of precedent is enormously larger than that of actual enacted law.
And we have an adversarial system: opposing advocates present arguments for their clients. These cases made by the plaintiff’s attorney and the defendant’s attorney constrain the judge’s decision in some respects.
That means that judges, who nowadays are virtually exclusively lawyers, who have been educated by teachers who are mostly other lawyers, hear cases argued by other lawyers. That most legislators nowadays are lawyers, too, is just the icing on the cake.
A common law system is a system of lawyer-made law. Believing anything else is either ignorant or mistaken.
It doesn’t have to be that way. Most of Europe operates under a Code Napoleon system in which the role of the judge is to determine how the written statute applies to the case at hand. The role of precedent is greatly reduced or nonexistent. Additionally, judges don’t have to be lawyers. In some countries lawyers go to law schools and judges go to judge school. I think we should be moving in that direction ourselves.
And the adversarial system isn’t the only one. Indeed, IMO our present system is significantly more adversarial than it was even 50 years ago, i.e. what we think of as the adversarial is not how the system was viewed here in the past. And in some places paid advocates don’t make cases. Complainants bring their complaints to court and respondents respond.
But our system is an adversarial common law system and it’s preponderantly a system of lawyer-made law.
Update
Alex Knapp, writing at Heretical Ideas posts a lengthy retort to my post:
Being a member of the bar, perhaps I’m a bit biased, but I don’t particularly have a problem with a system of law that is enforced and interpreted by people who are trained in the understanding and interpretation of law.
Schuler, however, disagrees, and urges instead the adoption of a civil law system akin to that of Western European nations.
No, I don’t, although I can see how Alex might have drawn that conclusion because of my comment on judges.
In my view our adversarial system has reached a point at which the primary virtue of a good attorney is zealous advocacy. That’s not the primary virtue of a good judge and schools in which zealous advocacy is considered the primary virtue will necessarily educate good lawyers to the detriment of educating good judges. As Adam Smith pointed out more than 200 years ago, the key to efficiency is specialization. I’m not advocating that judges be untrained. I’m suggesting that there should be different educational tracks for lawyers than for judges.
I don’t believe that most Americans or, indeed, most Europeans are aware of the substantial differences in our legal systems and I think it’s important for both to recognize that there are differences and the differences aren’t all bad. Different systems have their virtues. And their weaknesses, as Alex ably points out.
I continue to prefer our common law system (with the amendment I’ve already pointed out) over the system of European civil law. However, I don’t see how recognizing that there are different systems can hurt.
I see two problems with Knapp’s idea. First, anyone who deals with the legal system or who even follows the news knows that the legal system is not only of the lawyers and by the lawyers, but also FOR the lawyers, and the rest of us can go to Hell so long as we pay our legal fees. Everyone who is NOT a lawyer or who can’t afford a decent lawyer is effectively a second class citizen.
(In Orlando there has been a long-term effort to build a commuter rail line. That effort has been stymied at times by various interests. Recently it was hung up for months by the state’s trial lawyers, who would not allow the lines to be built until they were allowed to sue anyone and everyone they could think of in case of an accident, regardless of culpability. Eventually the state legislature decided to cave into the lawyers, but by that time the other opponents had organized enough support to stop the project from being built. This same thing has been going on for at least 20 YEARS that I can remember.)
Second, if if requires years and years of specialized training to be able to understand the law, then the law is useless to a society. How is the non-lawyer citizen supposed to live their life if they don’t even understand what will bankrupt them (from legal penalties) or land them in jail, or worse?
I have several solutions in hand for some of the issues you’ve raised, Icepick, although I’m quite certain that Alex would disagree vehemently with some of them. I’ll put them on the floor not as closely held beliefs of mine but only for discussion purposes.
First, it might be a good idea if we had a predisposition against lawyers as legislators. People capable of drafting a well-constructed piece of legislation can always be hired. They don’t need to be office-holders.
Second, it hasn’t always been the case that judges had an exclusive franchise on legal interpretation. Until the late 18th century the prevailing view was that executives, legislators, judges, and the people had the right to interpret the law. This has been neatly documented by constitutional scholars. I’ve got a link around here somewhere to the bibliography. If a reasonableness standard were to be the yardstick, it would make an enormous difference.
Finally, it may well be possible that our entire legal system is in desperate need of a system reset. I’m not sure how that could be managed but it’s something that should be reflected on.
I’m not sure of the proposition, but I think there are three issues to be considered:
1. Louisiana is a civil code jurisdiction. It’s commercial law is the basis for the Uniform Commercial Code, which governs most commercial transactions in this country. Having lived in Louisiana, I don’t discern any less litigiousness; I think that the U.S. is culturally litigious.
2. We have a number of administrative bodies that render quasi-adjudicative decisions without the necessity of lawyers, though their presence is felt. One may want to consider the rise of technocratic decision-makers as an alternative, and whether for example an expert in environmental science is a good conflict-resolver or whether such a specialist is predisposed to favoring the values of his/her discipline. Also, the antagonism of the different branches of government will probably always result in some form of judicial review in the courts.
3. I believe prior to the 60s or 70s, the opportunity for civil litigants to prepare their cases with use of depositions, interrogatories, etc. was more limited than today. It’s possible that the benefits of more information for empirical analysis is overvalued in terms of legal costs.
Yes, and if you ever go up against one, let me tell you what happens 90% of the time: the government finds in favor of the government.
Yes, and if you ever go up against one, let me tell you what happens 90% of the time: the government finds in favor of the government.
Yes, and whenever a citizen deals with lawyers, the lawyers win 100% of the time. The citizens probably win less than 50% of the time.
Dave, your suggestions seem like a reasonable start of discussion. A reasonableness standard would be a vast improvement. I always vote against local and state ammendments if they can’t be easily understood. I don’t care if it’s something I would nominally support: If the language isn’t clear, it shouldn’t be the law of the land.