A Common Misstep of the Common Law

A judge is a servant of the law and not its master. The role of a judge is to apply the law in particular cases; the role of the Legislator is to create law for universal governance. The letter of the law is an expression of the spirit of the law, which is the intention of the Legislator. Thusly, although law is a composite of letter and spirit, the law is truly found in the spirit, which is known most directly by the Legislator. Therefore the authentic interpretation of the law is reserved to the Legislator, who knows to the fullest extent the spirit of the law, the most essential element of law of which the letter of the law is an expression (cf. CLIF 52 §101.2).

On Law, Order, and External Force

It is in the very internal logic of Western legal thought that the mere written word has no actual force in itself. Hence the need for a tribunal to apply the general principle to particular cases and the police to physically enforce such abstract judgment. This enforcement mechanism is what orders Western society.

Yes, it would be ideal if citizens simply followed the clear meaning of the law—assuming the law could be clearly understood (a separate juridical problem). But the fact that citizens do not does not thereby necessitate law being reduced to mere force.

Law is an ordering to the good, be it the common good, the individual good, the last end of man, etc. Law by its nature is an ordering of persons in the jurisdiction of the law (society). But the law can only order if it is effectively enforced. Consequently, in the non-ideal situation of not-wholly-voluntary obedience to the law, the very external force behind a law is the order which the law denotes, since only though external enforcement can the law be effectively implemented and order to the good.

This post was inspired by the writings of Chief Luther Standing Bear and is derivative of an original work from 12 September 2014.