I wrote this paper for my intro to CLEG (communications, law, economics, and government) class. The assignment was to craft an argumentative paper regarding a theme or topic we had covered in class. I chose to discuss two of the readings we used about the nature of a legal system and originalism versus activism from a judicial standpoint. Throughout the piece I connect the two readings to argue that our legal system is originalist by design.
The Originalist Nature of a Legal System
Human behavior in society is heavily influenced by legal systems, but more importantly legal systems that function properly within their guidelines. These guidelines are what separate a legal system from a normative system. More specifically, the distinction between legal systems and normative systems is rooted in primary institutions, laws, and the limits of law. These distinctions are what make up the basis of our legal system because they focus on upholding preexisting norms. Therefore, although some might argue that courts and judges should be more progressive, this is not possible because our legal system is designed to be reliant on the status quo.
The legal system is too well-grounded to shift towards a system that thrives off of legislating from the bench. A legal system is considered a legal system because of the laws that judges are required to uphold without regard to personal opinion. This is what allows it to function properly and what separates it from the normative system where judges can make decisions without being bound to laws. As described by philosopher, Joseph Raz, a normative system without any laws to adhere to reveals that “[judges] are instructed by a rule of the system
to make the decision which seems to them the best in the circumstances, taking account of all the considerations which seem to them relevant” (Raz 11-112). In this case, anything could be considered relevant including past experiences of either the judge or the defendant, emotions, personal values, or biased opinions. Therefore, decisions rely solely on the ideas of the person making them. He argues that any particular issue will have no clear stance coming from the system (Raz 112). Ultimately, this is not a sustainable system because it is not based off of laws and precedent. Raz states that “It is unlikely that such a system has ever existed or will ever exist.” (Raz 112). Therefore, a system based off of emotion and judicial interpretation is not reasonable and will never manifest.
Increased amounts of progressive judges in courts will not change the vision or actions of the courts because the nature of the system itself is rooted in upholding preexisting norms. Even if a judge holds a personal progressive political view, they cannot let it interfere with the laws themselves. The decision making must come from a strict adherence to the law. However, decisions are instinctively based on views. Since judges’ views play a role in the decision making, Raz reasons that, “But it does follow that they are to apply a certain body of laws regardless of their views on its merits and are allowed to act on their own views only to the extent that it is allowed by those laws” (Raz 113). It may seem as if progressive ideas held amongst judges have the ability to create change because they can act on their views, however only within the confines of the law. The law is set up to maintain a stable government and create barriers for change, hence the views are automatically squashed by an inability to develop within the confines of the law.
Progressive ideas can be furthered through political representation rather than judicial action because the legal system is designed to reject them. Former Supreme Court Justice Antonin Scalia accurately conveys this when he says, “originalism seems to be more compatible with the nature and purpose of a Constitution in a democratic system. A democratic society does not, by and large, need constitutional guarantees to insure that its laws will reflect ‘current values.’ Elections take care of that quite well” (Scalia 862). Progressives can further their ideas through voting in elections and being active in our democracy. However, trying to do so through the legal system is not realistic because originalism is in agreement with the system. Ultimately, it comes down to the basics of checks and balances. The legislative branch is where change occurs, but the judiciary branch is in the position to strike this down on the basis of laws that are consistently enforced. It is not a responsibility of the judiciary to pay attention to whether or not laws are in agreement with the evolution of society. In terms of the judges themselves, “it is very difficult for a person to discern a difference between those political values that he personally thinks most important, and those political values that are ‘fundamental to our society’” (Scalia 863). Distinguishing personal thought from the law is a problem within the legal system. Progressive judges with intentions of legislating from the bench would only perpetuate this problem.
Some might argue that progressivism and judicial activism are the key to creating positive change. On the other hand, progressivism does not match up with the originalist nature of a legal system. A progressive court system would need to establish a distinct approach in contrast to originalism. This would involve reaching consensus on what values should be altered and newly upheld, and as Scalia puts it, “it is hard to discern any emerging consensus among the nonoriginalists as to what this might be” (Scalia 855). Ultimately, this comes down to the idea of limits of law. Legal systems are bound to certain standards and laws even if ideas about these laws shift with changing times. The stability and regularity that comes with this key component is crucial to the proper functioning of a legal system that is in force (Raz 115). Our legal system needs stability in order to properly influence human behavior and this stability comes from an originalist system. Although everyone holds different views, in breaking down the nature of the legal system it is important to understand that it is systematically set up to resist progressivism.
It is easy for people to argue why their political view is superior, but that is what makes it so hard for them to acknowledge when a particular view is engrained within a system. A legal system is distinguished by its laws, institutions, and how they work together to create a main goal: to uphold withstanding norms. Therefore, a legal system that remains open to constant change is one in danger of no longer being in force. The system is designed to resist change, so judicial activism will not be effective. Legislation and representation is where the change will occur. Overall, it is important to recognize the nature of a legal system because it has significant influence over the structure of our nation.
Raz, Joseph. “The Institutional Nature of Law.” Academia.edu, www.academia.edu/8490941/The_Institutional_Nature_of_Law.
Scalia, Antonin. Originalism: The Lesser Evil. www.bing.com/cr?IG=A91F1BDF9DAB4146916CB2157A13911B&CID=34C88461608B6E2716B98FC461246F72&rd=1&h=oB7sZmZT1Tv0bVaoOhITa5qoBnfWC1CjNwe1i8hAaog&v=1&r=https%3a%2f%2fwww.law.uc.edu%2fsites%2fdefault%2ffiles%2fScalia%25201988%2520Taft%2520Lecture.pdf&p=DevEx,5068.1.
Writing this paper taught me a lot about our judicial system both today and in the past. I learned about the perspective of judges and outsiders, and about how the system has developed. I am pleased with the work I produced as it is reflective of my passion for the topic. I felt as though I had a strong argument and that I had tackles a unique and ambitious topic.