David Watts, short papers
Sources of Law, Short Paper #2,
The sources of law are an important consideration. We need to look at where are laws have come from and where they are going. I will consider different sources of law, and then propose what I take to be the most important ones. When we brainstorm sources of law, we end up with a list of things which very much related to each other. We may refer to different sources which all fall under constitutionally based law. Or we may not distinguish between common law and precedence. I propose that we group these sources so that we can handle them more clearly. In the end, I think those sources of law which guide and promote change are the most important ones, namely, judges’ rulings and meta-law, in our case, the constitution. -Law falls into a broad dichotomy. There is positive and normative law. When we say "sources of law," we are talking about sources of positive law, or the law that actually is enforced. The sources themselves fall into the same dichotomy. There are sources which already are written law, with fixed crimes and their punishments, and those which insist they ought to be law, based on some criteria other than written law. -Positive law sources include common law, precedence, and written law in all its different forms. Common law is what the outcomes of cases were prior to being written down, so it is a historical precedence. Precedence usually refers to the history of what has been the case and judgment, but written down. Written is the basis for most court judgments, as most cases fall within parameters and conditions stipulated by those laws. The difference between written law and positive law is that positive law is the activity of law in the present and the phenomenon of what happens and what is decided in court. A judge may or may not use the written law exactly in a case, although, most of the time, positive law reflects written law. -Normative sources include natural law, religious or moral codes, judgments made by judges that don’t align themselves with positive law, history, and meta-law. The last two can be contested as positive law, but I will defend myself soon. Natural law is usually appealed to as a law which exists in the world, and as seen in nature, or a state of nature between men. Kind of vague, I know. Religious and moral codes are rather self-explanatory; people who follow these codes want them to be enforced legally. Judgments made by judges can be seen as a positive law source, because that power is granted to them. As such, their discretion is positive law itself. However, I consider it a normative source because it a choice based on what the law ought to be, in the judge’s mind, rather than what the written law is. Meta-law, like the constitution, is something that acts a guiding principle for the making of law. It can be considered law itself, but as a source of law, it says what law ought to be or how it should be decided and doesn’t explicitly spell it out. -I think that the most important sources of law are meta-law and judgment. This is because one of the more important aspects of the law is its evolution. We all admit that the law isn’t perfect. We can be pessimistic about it and say this is the best we can do, or it’s impossible to achieve a perfect legal system, or we can think about it as a community effort, evolving towards an ideal. To avoid existential resignation, it’s important to always maintain the state of striving-towards. Meta-law defines what we believe that ideal is. It helps guide the evolution of law towards that ideal. Judgments are where positive law is able to change. The written law is altered slightly by a judge making a decision that is different from it. Hopefully, the judge is keeping the ideal in mind, and helping the evolutionary process towards the ideal.
-David Watts