Friday, February 17, 2006

My Post-Law School View of the Law

Law school was the hard and cold metal on which one puts the red-hot iron that has just been taking from the stove. I came to law school directly from Yeshiva, where I learned that laws were divinely inspired. The laws I learned in law school were made by man.

After five semesters of law school, I am a bit saddened to say that laws are what we make them to be. Our foundations of law seem to be a murky morality that is based on nothing certain except for a feeling of right and wrong based on our own subjective values. The laws are made by appointed or elected lawmakers who follow the will of the people based on the people's own personal interests and desires. The case laws are made by judges who are also men (gender neutral) who try their best to decide what is right and what is wrong.

What frightens me is that the law generally evolves based on a system to keep regularity among the laws called precedent which is followed with more regularity than it is not. This means that a bad court decision will be followed as long as the result is not so far away from the morality of those judges upholding it. Only a really abhorrent decision that is against public policy (or the morals of the judge) is overturned. This in my view leads to a mediocre system of following the decisions of our predecessors. To their credit, they act in good faith and try to make the best decisions possible based on the information they have and the trust that those before them made good decisions.

Along with the underlying theory that those predecessors of the judges who made legal decisions had knowledge and wisdom based on facts and circumstances of the cases that formed the laws that current judges do not possess with hindsight because they lack the specific knowledge and facts of the case that formed the basis of those laws, there is a theory of reactivity and adjustment that also plays a role in the formation of the codes to which we are bound. This reactivity can be explained by the analogy of the minor adjustments that a pilot makes on an airplane. If he is off course by the slightest degree, by the end of the flight, he will miss his target by hundreds or thousands of miles based on the length of the flight. Therefore, his flight plan is executed with hundreds and thousands of minor adjustments to keep the flight on its plan.

I would posit that the law, specifically Congressional law is the same way sans the political influences that I believe corrupt the system. The goal is to have a workable law with workable bills that benefit the public more than they harm them. I would say that although my opinion is that there are too many laws on the books, for the most part the intentions and the hearts of the legislators are in the right place.

The affect this has on me is that I hold now that there are two systems of law -- one divinely inspired that I am required to follow, and one made by the men and women of our country and state which I am forced to follow or else I will suffer the penalties. I have no qualms about breaking a law if it comes into direct conflict with my religious requirements. So far I have yet to find such a law. On the other hand, as a soon-to-be lawyer, I see the law as a game which has rules which I must abide by. I've spent my law school experience learning those rules and for my clients I will maneuver them to use the rules as they have been written for their benefit. I disagree strongly with the saying that rules are made to be broken because when following man made laws -- unless one has the intent of changing the laws under the pressure of being crushed by those same laws they intend to change -- one is forced to abide by the rules, whether they are right or wrong.

This does not make me jaded; I understand that the laws are the result of a societological contract where all citizens and residents are implied participants of this contract whether or not they agree to it. Therefore, my view of the law is no longer that of an idealist trying to impose his view ONTO the law; rather, the law is there as an evolved entity of its own run by those who spend their lives trying to influence it. It must be respected.


Ger Tzadik said...

Frumpter: I've been reading backwards through your blog, and it occured to me that this is part of why I enjoy your writing so much. Your style and method of thinking is very familiar to me. My girlfriend is in law, and the style of communication used is very distinct.

Bravo on not being jaded by the experience as well. It says something about law that people have to come out and say that, since so many do become jaded after law school.

The real me said...

As bad as it may seem, overall the justice system in this country is based on good values, so while it may not be as good as the torah, its definitly better then anywhere else.