In Defence of Liberty

Driven by data; ridden with liberty.

The Ghost of Law

Law is the body of rules that regulate human behaviour within its jurisdiction, and forms the framework in which all human interaction takes place. Casting our gaze into history and across the globe, we see that desirable law systems share a number of qualities: the judiciary is impartial and not controlled by the government, the legislature writes the laws, the laws themselves are consistent with one another, and the laws are dependable and well-known to nearly all citizens. The British legal system is one of the country’s finest exports, with warranted judges, open trials and proportionate punishments being replicated and perfected across the world.

Can justice be blind and balanced when considering the ‘spirit of the law’? (Photo thanks to Ben Sutherland, found here:

For centuries, the debate has raged over whether to apply the ‘spirit of the law’, and supplant the ‘letter of the law’. The 14th Chief Justice of the United States of America, Earl Warren, once said: “It is the spirit and not the form of law that keeps justice alive”. The ‘spirit of the law’ is often described as the intent or purpose in which the legislature passed that law, whilst the ‘letter of the law’ is defined as what the law actually says. Human beings are imperfect, which possibly leads to a wide gulf between our intentions and our words, so these two concepts do not necessary align with one another.

By submitting to the law’s spirit, we will have readily accepted that the legislature, the British House of Commons, would no longer write the laws of the land. The law would simply become what the judge believes the rules to mean, consequently the defendant would only discover what the law is by who the judge that sits before them, rather than knowing precisely what the law is beforehand. The judges would be unleashed from the ink in the statute book, and would simply become a surrogate law-maker during the trial itself. Given the demands for the ‘spirit of the law’ to be followed in tax law, a particularly muddled bundle of British rules and European directives, companies would only truly know the headline rate of various taxes in advance.

The farcical cases of injunctions and super-injunctions has exposed the dangers of the judiciary essentially writing laws, which bound the media from even printing basic details and discussing court cases involving certain wealthy individuals. It also included the instance of oil company Trafigura blocking The Guardian newspaper from covering remarks made in Parliament about their alleged dumping of oil in the Ivory Coast. These resulted of the unresolved dispute between the clauses of the Human Rights Act 1997 that sought a ‘right to privacy’ and a ‘right to free expression’. In the legal vacuum created by these declarations, judges gave out injunctions, which were powerful restrictions on press freedom. Whilst this case points out that legislatures can sometimes construct bad and confusing laws, the prevailing vision encapsulated in the law’s ‘spirit’ can override our most treasured freedoms. However, even if legislatures can write bad laws, it is also up to those legislatures, not the judiciary, to amend those laws.

However, the ‘letter of the law’ can often run completely counter the law’s supposed spirit. A potent example of this, given in Thomas Sowell’s Intellectuals and Society (pg. 169), was a 1979 case in the United States, the case of United Steelworkers of America v. Weber. A provision of the Civil Rights Act 1964, Section 703(a), explicitly forbade an employer “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race”. Specifically, Section 703(d) made it illegal to discriminate against employee with regards to “any program established to provide apprenticeship or other training”. Brian Weber, a white employee with the United Steelworkers of America, was not awarded a place on a training programme where seniority decided admission, whilst black employees of lower rank were. This is because racial quotas decided positions on the course, with racially separate ranks of employees. Justice William J. Brennan subverted the plain meaning of the Civil Rights Act, and rejected “a literal interpretation”, and sought the “spirit” of the Act in the concern for “the plight of the Negro in our economy”. A dissenting judge, Justice Rehnquist, described this decision as “a tour de force reminiscent not of jurists such as Hale, Holmes, and Hughes, but of escape artists such as Houdini”. It is also highly debatable whether Justice Brennan’s divination of the law’s spirit was the only possible interpretation of the Civil Rights Act, as the Act itself ended widespread discrimination and segregation, most of which derived from the Jim Crow Laws. This case also exposes the serious problem with relying on the ‘spirit of the law’: the divinations made by judges are far more inconsistent and subjective than their possible interpretations of written words.

Since experience forges law,  legislatures should change written laws which diverge completely their actual intention, and not just interpreted to mean their intention. If the law’s spirit was followed in tax law, there would no longer be tax inspectors, there would be tax inquisitors. If the law’s spirit was allowed to haunt criminal courts, there would be no fair and open trials; there would only be a judicial séance. Like every séance, it will be a sham, with the ‘spirit of the law’ being ventriloquized for the judge’s own personal feelings. If the ‘spirit of the law’ was followed, there would not be law anymore, there would only be the ghost of law.



This entry was posted on June 18, 2012 by in Law and Philosophy and tagged , , , .
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