Sunday, September 21, 2008

Statutes, Cases and Codes

So, now that I have survived four weeks of law school, what have I learned? Probably the most important things are (1) the philosophical (as opposed to separation-of-powers) distinction between statutory law and common law and (2) the importance of codification.

Statutes and cases

We'll start with what I already knew from working in the legal field. I came to law school knowing that statutes are not the totality of law. When I started paralegal school, I was completely unaware that law took any other form than statutes and assumed that what lawyers do is memorize the entire statutory code. Wrong!

But it did not take long to realize just how much of "law" in the Common Law tradition is actually cases decided by judges. Each case decided at the appellate level sets a legally binding precedent that lower-level courts are required to follow. Legal education focuses as much on cases and as little on statutes as feasible. (To understand why, read any random statute versus any random court decision and see which you would rather focus on).

But I knew that well before starting law school. Before law school I simply defined a statute as a law passed by the legislature and common law/case law as judicial opinions interpreting the statute (or winging it in the absence any statute). But coming from the legislature is not the true, defining trait of statutes. After all, many countries, past and present, without democratically elected legislatures still have statutes. The source of a statute can be a royal decree, a churchly edict, or God himself (see the Pentateuch, which is full of statutes). Regardless of its origin a statute has a different basic philosophic nature from a court decision.

A statute is general. It sets forth a rule governing a generic type of conduct, rather than a specific instance of conduct.

A statute is impersonal. It governs the conduct of the general public, or of a certain sub-section of the public, but is not addressed to any particular individual.

A statute is prospective. Though it can, in some cases, work retroactively, the point of a statute is to govern what people do in the future, not what they have already done.

Court cases, which form the core of common law, are the opposite of statutes in those regards. A court case is particular. Each one deals with a single, unique occurrence. A court case is personal. The judge is issuing judgment for two (or more) individual litigants. A court case is retrospective. It addresses events that have already happened to see how best to deal with the resulting mess. Or, to give a concrete example, a statute decrees that the owner of a dog shall not be liable if the dog bites people so long as the bite was provoked. A court decision determines whether the two-year-old boy who tripped over sleeping Odie at the beauty parlor and woke him "provoked" the bite.

Of course, in the Common Law system, each court decision creates a precedent that future cases must follow. In that sense, the particular, personal, retrospective decision that a judge makes for any one set of litigants has important general, impersonal, prospective importance for any future set of litigants. But not completely so. If the court does not like the way a precedent would determine a particular case, it can always distinguish. Or, to offer another concrete example, the court found provocation when a five-year-old girl was playing crack the whip and was thrown loose and stumbled onto a dog's tail as it was eating a bone. So if the girl who accidentally stumbled onto a dog's tail provoked him, then the boy who tripped over Odie must have provoked him, too. Ah, but the dog merely scratched the girl, so she provoked the scratch. Whereas Odie bit the boy so badly he required 23 stitches, so the court decided he didn't provoke that much of a reaction.

I had to laugh at one of our text's description of a law school class in the Common Law system: "[A] chaotic place where the professor is gleefully destroying any lingering idea his students may have that a building is possible, and each new hypothetical is introduced to show that the rule we just learned in the last case won't apply to this new one." Yeah, just about.

Statutes and codes

But just as precedent gives judicial decisions a general, impersonal, prospective nature, statutes are more particular, personal and retrospective than they may appear on the surface. After all, statutes are rarely just made up out of thin air. They are usually responses to real, immediate social needs. Some are even inspired by a specific incident involving a specific person; an attempt to create a general, impersonal, prospective rule to deal with a particular, personal, retrospective event. Which leads to another concept in law that I had always taken for granted until starting law school -- codification.

We all speak of general codes of law (the Code of Hammurabi) or of narrower codes (the US Internal Revenue Code), usually without giving much thought to what the term means. Code (or codification) means the organization of statutes by subject matter to make them easier to navigate. Before I entered law school, my response would have been, well, how else would you organize statutes?

The main answers are either chronologically, or not at all. Why would you want to do that? Basically, because the law is always changing and codification is a lot of work. What starts out as a neatly organized statutory code keeps getting added to or modified. New laws pile up sequentially and over time in place of a neat code, you have a messy jumble that takes a seasoned lawyer to pick through and find anything. Until the second half of the 19th century, English Common law accumulated statutes in chronological order and made no attempt a codification. European Civil Law has a long-standing tradition of codification, new laws built up between codifications, requiring periodic overhauls. Today, legislatures have Compilation Commissions whose job is to constantly update the code with all the new statutes being produced. (The rule for legislatures, by the way, is just to make laws and not worry where they will fit into the code. The Compilation Commission will handle that).

So the point of all this is that codification makes statutes even more general, impersonal and prospective. Taken out of the context in which they were enacted and placed into the context of other statutes, they seem part of seamless and timeless whole.

Court cases are still kept in chronological order because they don't codify well. Court cases may deal with any number of unrelated legal issues. And they often contain all sorts of extraneous verbiage that has no legal import whatever. For instance, the boy who tripped over Odie and got 23 stitches worth of bite inspired a witty dissent. The dissenting judge began by warning that we should let sleeping dogs lie, went on to accuse his colleagues of practicing canine psychology to determine how much force is appropriate for a reasonable dog, and concluded by saying, "That dog won't hunt." How do you codify that?

So far as I can tell, many treatises and law reports are, effectively, attempts to codify case law by breaking it into bits and pieces. They organize into sections, just like a statute, and give a legal principle in each section, supported by various small segments of cases. The result is both to make the case law much easier to navigate and to turn particular, personal, retrospective individual decisions into a general, impersonal, prospective imitation code. This imitation code looks so much like the real thing that our Contracts text had to warn us that even though it looks like a statute, the Restatement of Contracts is just a treatise and has no legal authority. But it is hopeless. Even judges keep forgetting the distinction and treating Restatments a binding law, presumably because the codification makes it so much easier to navigate.

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