Friday, March 21, 2014

Stare Decisis and Becoming a "Law Unto Themselves"

President Joseph F. Smith, prophet and president of The Church of Jesus Christ of Latter-day Saints from 1901-1918, once made an interesting statement about "False Teachings."  He wrote:

Among the Latter-day Saints, the preaching of false doctrines disguised as truths of the gospel, may be expected from people of two classes, and practically from these only; they are:
First—The hopelessly ignorant, whose lack of intelligence is due to their indolence and sloth...those who are afflicted with a dread disease that may develop into an incurable malady—laziness.
Second—The proud and self-vaunting ones, who read by the lamp of their own conceit; who interpret by rules of their own contriving; who have become a law unto themselves, and so pose as the sole judges of their own doings. More dangerously ignorant than the first.
Beware of the lazy and the proud; their infection in each case is contagious…[1]

The phrase that caught my imagination in this quote is "who have become a law unto themselves."  

You should know I am not a trained attorney, although law school is in my life plan.  In preparation for that goal I have done some research on law and legal thinking.  That research led me to one thing in particular that concerns me about the practice of law and the legal culture--the doctrine of stare decisis.  According to the Cornell Law website:

Stare decisis is Latin for "to stand by things decided." It is essentially the doctrine of precedent. Courts cite to stare decisis when an issue has been previously brought to the court and a ruling already issued. Generally, courts will adhere to the previous ruling, though this is not universally true. See, e.g., Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 US 833 (1992).[2]

Read any legal opinion.  What does it contain?  "The court ruled this way because 'case A' was decided that way and 'case B' was decided this way, etc. etc. etc."  To me this says that lawyers are arguing cases and sitting justices are upholding (or overturning) our laws based on what other former sitting justices have said about this law or that law.  And you know what this sounds like to me?  A group of people "who have become a law unto themselves." A group of people who are "making" laws that are disguised as good, true laws, but in actuality are the philosophies of men (which is the topic for another essay--judges are to execute the law, legislatures make laws).

In truth, what is the very foundation of "good laws?"  A hint...a prophet once came down from a mountain with ten of them in his hands.  If you mentally said, "God's Commandments" or "God's Laws," you are right.  We have laws against stealing because God once told us that it was a commandment, "Thou shalt not steal."  That wisdom still exists in our laws today (thankfully at least a few have survived).

This is one of the key reasons our founders decided to break away from England and form a new nation.  They wanted us to become a nation of people who did not believe laws came from a king, but from "the Laws of Nature and of Nature's God."  In a way, that vision did not last very long and may have been dying even before it was canonized.  The practice of stare decisis actually started taking root about 70 years before the Declaration of Independence was written and thus about 80 years before our Constitution was adopted.  

Here is my is my vision...that one day we will live in a nation of people who cite God's law in all legal decisions.  "The court has ruled this way because God has taught us, 'Thou shalt not steal,' and it is very clear in this case that the defendant stole from his company."  In my view, and in the view of a lot of like-minded people, God's laws make good law and a society that embraces His laws will be blessed and prosper.

No comments:

Post a Comment