There was a time not so long ago, when reading the law was the job Judges were hired to do. No more was expected – no more was tolerated. No one was interested in the Judge’sopinion of law. Opinions about right or wrongness of a law was made by the representatives that created the law - legislators.
If the people became unhappy about the laws created by the legislators they elected new representatives - at the very next election.
Judges were not allowed to change law. Their role was limited to reading the law. It may seem odd that specialists (Judges), were required for such a simple task as reading. Reasons for this oddity come from centuries-old traditions about legal writing.
Most legislators start out as lawyers. Lawyers are trained to write law by precisely citing, word-for-word, portions of previous laws. They do this to ensure precedent for their new law.
Precedent means nothing more than something previously accepted. In legal writing it means nothing more than the wording previously accepted.
Many of these legal precedents cited are written
in an older style of English not easily understood by contemporary readers. The older styles of phrasing are
often confusing enough to require specialists (Judges) to untangle.
Interpretation of awkward archaic wording is perfectly legal. It’s why Judges are needed to read the law.
Unfortunately, false interpretation of legal interpretation has led to confusion about the proper role of Judges. Interpreting the language of a law is very different from interpreting the intention of the law.
News reports on judicial rulings constantly mislead; they regularly declare that some Court approved or rejected this-or-that policy. Reporters may do this because of ignorance, or more likely, because of willful ignorance.
Courts cannot decide policy. Court rulings are restricted to point-of-law. Courts can only rule on whether the law being challenged conforms to State or Federal Constitutions - or not.
The judiciary is not empowered to decide whether
a law is good or bad. They can only decide if a law is legally permissible. The question of good or bad is decided by legislators.
Modern confusion on legal interpretation was accelerated by peculiar language famously used during the course of the Roe vs Wade Supreme Court case. Roe vs Wade was about a Texas law restricting abortion.
For those whom the word ABORTION triggers immediate emotional twitching; relax.
Abortion is not my topic. Misuse of legal interpretation is my topic.
At some point in the argument Supreme Court Judge Harry Blackmun used the phrase, “emanations from the penumbra”. In standard English this would mean stuff (emanations) coming from the shadow (penumbra) of something actually there - legalistic mumbo-jumbo intended to obscure clear thinking.
Judge Blackmun was not the first to use this ridiculous phrase. Precedent came from Oliver Wendell Homes, who said something similar in 1873. Others followed, including Judge William O. Douglas in Griswold vs Connecticut.
Inscrutable language used as precedent has made
a legal mess of common sense; with successive emanations from the penumbra becoming progressively more cloudy.
Even judges who restrict themselves to reading the law find themselves forced to interpret the meaning of the law because the oblique wording makes meaning unclear.
Fuzzy language makes it easier for social-engineering judges to invent their own meaning; meaning that was never intended by those who wrote the law.
Inscrutable language is also the reason few people ever read the contracts they sign.
Laws and contracts that obscure meaning defeat the purpose of both laws and contracts.
Should we sheepishly accept the notion that we’ll only know for sure we’ve broken a law or a contract when the lawyers tell us we have?
I don’t think so.
Shakespeare’s’ Dick-the-Bucher suggests killing all the lawyers as the straightforward solution. It’s an idea that still appeals. Probably undoable. The lawyers would all file appeals extending their execution into infinity.
Maybe we should require legalistic jargon to be accompanied by translations written in plain English.
Certainly something needs doing. There is some hope in the movement called, “Strict Constructionism”, which is a philosophy that limits interpretation of law to the meaning actually intended by the original writers of the law.
What a good idea.
It sounds a lot like, Reading the Law,
I hope it catches on.