[A good friend of mine who comments on this site as "The Freak" offers this discussion of the current state of understanding about the judicial system, and the historical context surrounding it.]

The recent discussion on judicial appointments – from talk of filibusters to discussion of “nuclear options” – points to a fundamentally flawed approach to the law and an upside-down perspective of what it means to be liberal and conservative. The former is driven by an irresponsible focus on outcome over process while the latter is related to a misunderstanding of legal development; both are rooted in an overwhelming congressional failure to understand the proper legal historical context coupled with a failure to exercise even minimal leadership.

Our legal system evolved from the tradition of Roman law and our understanding of the source of laws derives from Roman legal notions. The Roman legal system recognized different sources of law; at the risk of oversimplification, these can be classified as natural law (or law of nature), positive law, and the opinions of the learned (jurists).

The law of nature is what was considered essential and inherent in the very dignity of being a human. When Jefferson wrote “We hold these truths to be self-evident” he spoke of natural law. Most people still acknowledge the existence of fundamental rules and rights; whether these originate from their Creator or merely from the dignity that societies of men award their own is irrelevant to their existence.

Positive law is law enacted by those possessing legislative power. Roman law vested legislative authority in the senate, consuls, governors, plebes (from whom comes the term plebiscite) and other similarly situated legislative groups (later, the emperor).

Roman tribunals also recognized the opinions of noted jurists (teachers of law, respected practitioners, judges, and authors of meaningful legal work) as having the binding force of law. One of these, Gaius, even provided in his treatises on the laws a rule for resolving differences of opinions amongst these learned men.

The study of Roman law languished briefly after the fall of the empire and was revived at the university in Bologna during the eleventh century. During its revival, traditional concepts of Roman law were integrated with Church law and thus gave birth to European Common law (ius commune). Support for traditional sources of law began to lose steam, however, as legislators increasingly flexed their legislative muscles. Sovereigns, both clerical and secular, eroded the notion that legislative authority could be found in natural law or in the opinions of experts.

The final blows in favor of legal positivism were delivered by Jeremy Bentham and John Austin in the eighteenth and nineteenth centuries. They argued that sovereigns were not bound by natural law or any other precepts; laws were mere commands given by one person (or group) to another. The power to issue such commands rested solely with those affirmatively vested with legislative authority.

This idea – that people are sovereign and endowed with a natural power of self-determination – rapidly revolutionized legal systems across the world. As a result of this sea-change of legal philosophy the great democracies of the world (Spain, France, Germany, Italy, and Japan among others) did away with the last vestiges of the ius commune and created codes of law, including extensive constitutions. The codes, promulgated by their respective legislators, are an exhaustive representation of the will of the governed. Under these systems judges become mechanical interpreters and applicators of these laws; fundamental rights (natural law) are either explicitly included in codifications or do not exist (they are not presumed or implied against the expressed will of the nation).

This great legal innovation impacted the United States but only partially and therefore left us in an ambiguous state. We have codified many laws but still cling to the outmoded idea of stare decisis, the idea that legal precedent makes law. Much of our legal system is still built on the medieval, paternalistic idea that wise, learned judges need to temper the irresponsible impulses of the masses; our representative government is thus partially democratic, our vote is devalued.

Under this analysis then, Supreme Court justices like Antonin Scalia and Clarence Thomas are truly liberal. They embrace the notion that laws represent the will of the people and that judges are mere servants of that will as it is expressed. They view the law within its four corners and apply it mechanically; if the people – duly represented by their legislators – don’t like the outcomes, they have the power to change them through the legislative process.

At the other side of the spectrum are justices such as Ruth Bader Ginsburg and Stephen Breyer. By clinging to the older philosophy of Roman and medieval legal scholars (the idea that the natural law and the opinions of jurists can legislate and in effect augment positive law) they are clearly conservative. They are more concerned with outcomes (in terms of the specific impact of individual cases but also, more broadly, in terms of public policy) than the written law. This archaic approach dilutes the American people’s self determination and trivializes our contribution to the democratic process.

The fact that liberal judges yield conservative outcomes and conservative judges yield liberal outcomes is inevitable. The law is necessarily conservative and adherence to it must perforce lag the legislative process.

Yet this sorry state of affairs is entirely within the congress’ power to change! The very first sentence of the constitution provides them with all the authority they need. Congressmen must explicitly legislate the outcomes the American people (whom they directly represent) expect, make rules of interpretation clear and demand that judges obey the law.

Anything less will continue to disenfranchise the people and further lead to bitter senate confirmation disputes that are not focused on a judge’s juridic skill but on his political views. This is legislation by proxy and a paternalistic, obsolete, medieval model of government; the American people deserve better.

The Freak