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Indiana Judges Association: Judges struggle with 'rule of law' questions daily

October 8, 2014

IJA-Dreyer-DavidI love these law books for what they represent to our profession … [and] … our branch of government’s core purpose: … fair, impartial, effective and timely justice … while always respecting the “rule of law” …

Indiana Chief Justice Loretta Rush’s remarks at swearing-in

As Indiana made history in August by selecting its first female chief justice, people were once again reminded that we are a nation of men – and women. But as the chief justice also reminds us, we are always gratified by our unique legal standing in the world. Power in the United States is determined by open elections. Livelihoods are gained by free enterprise. And you do not have to be the chief justice to admire the principle that we are, as our founding fathers [and mothers] first pointed out, a “nation of laws, not men [or women].”

When John Adams first wrote those words to the Boston Gazette in 1774, he was directly engaged in persuading our early citizens that the “law is king,” and that no person is above it, not even a king. One historical account describes the Federalist’s persuasive depiction of a stack of law books with a king’s crown over it (hence, Chief Justice Rush’s wise choice of a library for her swearing in). Apparently, our colonial ancestors were apprehensive about having a nation without a king in charge. “Decision by committee” was as unpopular then as it sometimes is now.

But laws are written and enforced by lawyers and judges. There are some serious and thoughtful people in our country who make arguments that Adams’ old maxim is just pie in the sky, or at least not exactly accurate. No less than the late Frank Zappa supposedly said, “The United States is a nation of laws: badly written and randomly enforced.” He underscored the human element of America’s legal system.

Critics claim that we are a nation of men/women who can personally define and enforce laws according to our own code. The first dean of Harvard Law School, Christopher Columbus Langdell, argued persuasively that law is a science – with inductive, analytical and deductive aspects. So, only specialists can know how to use it, write it and enforce it. Although he would disagree with Zappa, indeed Langdell’s conclusions lead scholars to wonder if these specialists can dominate the law. By defining the law for the public, don’t individual legislators actually determine the law? When judges strike down law or interpret a new common law precept, are they not acting like “kings” of the law? In 1890, James C. Carter’s address to the American Bar Association addressed this head-on. It was a time of rising legislative law-making. Furthermore, there were complaints that the common law was really run by manipulative lawyers and judges. But as Carter explained, “. . . the true rule must somehow be found. Judges and advocates – all together – engage in the search. Cases . . . are adduced. Analogies are referred to. The customs and habits of men [and women] are appealed to. Principles . . . are invoked . . . and finally a rule is deduced . . . . [Common law] is not a command, or a body of commands, but consists of rules springing from the social standard of justice, or from the habits and customs from which the standard has itself been derived.”

The “rule of law,” as Carter says, may really be a dynamic endeavor. Rather than a monolithic book with a crown on it, as our founders would prefer, maybe the better symbol is a group of explorers in a jungle of books. When Richard Nixon resigned, new President Gerald Ford proclaimed, “. . . our long national nightmare is over. Our Constitution works. Our great Republic is a government of laws and not of men. Here the people rule.” One month later, Ford pardoned Nixon. Regardless of the merits of that decision, it calls into question whether the “rule of law” can, or should, ever be an absolute theorem.

As judges, we struggle with “rule of law” questions every day. The gray areas between a fact and a supposition dog our paths. The tension between the letter of the law and the conscience of the community complicate our considerations. In some cases, the rule of law just seems to be unjust. But overall, the true meaning of “rule of law” should not be a barrier.

Deciding cases can be accomplished according to rules well established, as well as rules found during the search, as Carter says. Either way, it is a journey, an endeavor, a process. Judges know this journey all too well. To them, the “rule of law” can be a tightrope, sometimes without a net. All too often, law is used as a means to an end. But to judges, law is the only end. Most importantly, it is a good-faith effort to do the right thing. And that will always be good for our legal system – and for our people.•

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Judge David J. Dreyer has been a judge for the Marion Superior Court since 1997. He is a graduate of the University of Notre Dame and Notre Dame Law School. He is a former board member of the Indiana Judges Association. The opinions expressed are those of the author.

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