Wednesday, November 30, 2016

The legal heritage of the United States

I have not studied the legal heritage of the United States.  I've heard (and believe it's true) that the United States uses "common law" as the foundation of its legal system because it divorced itself from the rule of the king.  "Common law" is a "term of art" but it is also an English phrase.  The term of art and the phrase have different meanings, and I wonder which one more accurately reflects the legal foundation of the United States.  I root for the phrase rather than the term of art because the "artists" who use that term are lawyers, and lawyers have their own dilemmas.

The gist of the definition of the term of art is "the part of English law that is derived from custom and judicial precedent rather than statutes." (so says Google). But we're not talking about English law, so let's find something that would make sense for the United States.

Right now, Wikipedia says that common law is "law developed by judges, courts, and similar tribunals, stated in decisions that nominally decide individual cases but that in addition have precedential effect on future cases."  It provides some pretty good references for that meaning too, but let's remember that Wikipedia here is defining "common law," not the words "common" (which Wikipedia doesn't do - it just identifies several domains in which "common" can be used), and "law"(which Wikipedia DOES define, but fails to mention the oldest and most obvious source for "law" as a system "of rules that are enforced through social institutions to govern behavior."  What source is that?  Juries.

On the "Jury Trial" page, Wikipedia says "Jury trials are of far less importance (or of no importance) in countries that do not have a common law system."  This claim has been in Wikipedia since 2007, uncontested and unattributed.  It suggests to me that jury trials are important in common law jurisdictions.  This blog post is written to suggest and request anyone who has it to produce evidence that the phrase "common law" is more useful when one considers jury trials to be its main source.

As written above, the term of art does include "courts" as a source for the law described as "common law," but it does not mention juries.  Juries are groups of people that operate in courts, but there are also courts in which no jury is used.  Therefore, the referenced meaning of the term is ambiguous about the importance of jury trials as a source of "common law," but, as Wikipedia shows, a nine-year effort to define the term has steadfastly maintained that juries are important in common law jurisdictions.

The point here is not about the term of art or the phrase.  The point is that juries are important as a source of the laws we and our fellows ought to follow, or, more properly, can, in the eyes of "society" justifiably be punished for breaking

Let us suppose that judges were to make decisions based only on what juries decided in courts where two adversaries hashed out their differences, and only when both adversaries agree to allow a judge to decide the case instead of having a jury hear it to make the decision.  There is a theory that life would be far worse than it is today, and an opposing theory (to which I adhere) that life would be far better than it is today.

In 1933, Prohibition was repealed, attributed in part to juries that refused to convict criminals whose offense was related to the use of alcohol.  Lawyer Clay Conrad says "During the Prohibition era nearly 60% of cases ended in acquittals."  Sometimes the system actually enshrines jury decisions into the Constitution of the United States.  Granted, the cost of enforcement and the rise of organized crime also heavily contributed to the motivation to repeal prohibition, but one can see that what processes those circumstances into law could be the jury, if that mechanism was recognized and respected more heavily.

I use the phrase "common law" as the simplest way to identify the system of laws that is created through the judgments of juries because juries best represent the common understanding of "rules that are enforced through social institutions to govern behavior."  Since it's a term of art, I'm looking for a new phrase.  Please let me know if you have any ideas, or help me beat back the perception that politicians, lawyers, and judges, rather than twelve random people assigned to any given situation, should determine how we should behave.

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