Quote:
|
Originally Posted by roachboy
i dont see anything important or interesting in the arguments for anything like strict construction. i see thinly veiled political posturing. i think the american common law system is among the few things that this system got more or less right. that of course doesnt mean that the application of elements within that system are hunky dory (the system itself is shot through with extra-legal features that, in the end, are determinant of usage)--but the logic of the system itself seems functional.
|
I hope I don't mischaracterize your position, or what I've learned...
as for strict constructionist...I don't think it's at as much odds with common law as you are thinking.
our legal roots, grounded in common law, are also grounded in a particular strain of legal reasoning: 'natural law'
this coincides with the growth of our nation, when American jurists, influenced by Locke and other political philosophers, were trying to establish the nation-state. Locke naturalized things like the economy (capitalism, the market, private property), the State, and etc.
this produces a hodge-podge of legal rulings, depending on which philosophies a particular jurist adhered to. (Mensch referred to this pre-classical era as "conceptual mush")
in the classical period (1885-1920) we have jurists turning to the Constitution as a source of law due to the need of a formal way of arriving at legal outcomes. C.C. Langdell argued that legal reasoning was like a science. this becomes legal formalism
this form of reasoning holds to the belief that law is law and society is society. think of law as a box, and social norms/values should and do not enter into that box; law is objective; law's tenets can and must be found within law; one should and must not look outside that box of reasoning for the premises of law; in order to learn how to "think like a lawyer" one must study case after case after case until one learns, inductively, what the logic of law is and how it operates
central tenet of formalism is that guilt is established through intent. intent is, as we've learned in debates about 2nd amendment, hate crime, for example, is difficult and sometimes impossible to ascertain.
as we developed from an agrarian society where we each took care of our own basic needs to a complex society where we each rely on one another for certain roles, a way of balancing intent with liability becomes a real problem...
if we were to hold people strictly liable (no demonstration of intent necessary), who would develop anything if they were assumed to be strictly liable?
what about strictly non-liable? who would consume if producers were never liable for anything? how could I eat a tomato if I couldn't be assured, or at least feel comfortable, knowing that the producer is developing them safely?
(cf. Weber's formal rationality and it's intersection with the growth of our version of capitalism; and now you can begin to see in our law, as well, as necessary prerequisite)
we start to see some very troubling logic in rulings in the early 20th centuray. logic that awakens the minds of critical legal scholars... (where incicentally, elphalba, we witness some extremely "activist" judicial rulings, but from the conservative , or laissez-faire side of the aisle, particularly in rulings like Coppage v. Kansas 1915)
20's to 30's
nation is struggling, stammering with a whole slew of social ills and cracks in the edifice of unbridled capitalism...and this paradigm shift occurs, and along with it this new way of looking at things through a prism of social sciences, and in particular American sociology.
and so we have Holmes and Pound writing from Harvard about how to integrate social science into law--how to balance intent with liability, how to practice substantive law. that the box between society and law is not so neat and tidy. that we ought to have a "sociological jurisprudence"
out of their writings springs legal realism movement changing the face of law
they demonstrate the fact that "rights" are not a priori. private property is not to be "found" in law, but is created in action. heavily influenced by pragmatism (not the get things done commonsensical notion of the word now, but the philisophical meaning that meaning springs from action)
the recognition that one's rights to engage in business sometimes, perhaps often, contradicts one's rights to private property (we are witnessing this contradiction right now in the debate over eminent domain)
the logic of legal formalism is contradictory, they conclude
but we have a problem...
now we are allowing men to think and read social interaction into the law
Hitler and Mussolini and the rise of fascism make it very threatening that law may not be autonomous from society
ruling by law is much more palatable than ruling by men. the "realist challenge" dies down in the influx of formalism values to ensure the validity and security of a formal rational legal system
scholars manage to argue successfully that althogh the laws may not be unbiased, the process certainly is (the process school). we can trust the system, if not necessarily the content within it.
by and large, our american jurisprudence continues to adhere to the basic assumptions of formalism
I wanted to get this out so people could see our trajectory of legal reasoning.
and also because it struck me that roachboy was wondering what the allure of strict constructionism would be (or maybe not, but it looked as though)
that is reinforces laissez-faire capitalism, the growth of our nation and economy, our particular form of personal values of autonomy and etc, and also how to maintain status quo (the function of law, one could argue)
(but also while maintaining social order, perhaps failing to address social injustice or social ills/needs)
maybe I'll have to come back and tie pieces in but perhaps this is hopeful...