Inter arma enim silent leges. “In time of war, the law falls silent” as Cicero said. I submit the law also falls silent in the court of public opinion.
If you have been watching the news lately, you have probably heard the term “rule of law” thrown around a lot. Well, what does that mean in non-legalese? It is something we all must trust in (and depend on) for our society to function.
In a Sunday school class in which I recently participated, it was asked “why is murder wrong.” Someone answered “it’s against God’s law.” Well, as a Christian, I believe that to be the case, but as a participant in our democracy, the analysis does not stop there. Right or left, believer or atheist, we all depend on a set of predicable rules to govern human behavior and, of equal importance, the resolution of disputes. Predictability and order is the goal. Chaos is the fear.
When I go driving in my car, I trust that other motorists will drive on the right side of the road. Likewise, if I contract for services, I have faith that, if the other side fails to perform the contract, there will be a legal remedy available in the courts. Hopefully, there is even some predictably to what that remedy would be based upon the record of how previous cases with similar facts were decided. Finally, I have faith that the deed on file at the register’s office secures my ownership interest in my home and is superior to all others’ rights (save of course the bank which holds my deed of trust).
An important corollary to the rule of law is that decisions (or judgments issued by a court) have finality. A legal system in which decisions are always subject to re-review would simply be chaotic. However, it seems as a society we are obsessed with reviews and re-dos whether we are talking about video review of football plays on the weekends or death sentences. United State Federal District Judge Cormac Carney recently described a sentence of death as a sentence of “life in prison, with the remote possibility of death.” A decision in a case that has gone as far as it can in the court must be recognized as the law whether one agrees with it or not.
Another important aspect of the rule of law in our country is that we have an adversarial justice system. This means more than just one side versus the other. This generally means that a party seeking to establish a claim against another party bears the burden to establish the facts that constitute the claim. We have all heard innocent until proven guilty. The criminally accused does not have to prove his innocence, the State must establish his or her guilt. The same is true in civil court. If you claim someone civilly wronged you, i.e. did not pay you for a service you preformed or negligently damaged your property, you have the burden to establish the case. Criminal or civil, the court, subject to extensive rules and procedures and many times with the help of a jury, painstakingly determines the facts.
There is no finality in the court of public opinion as everyone is entitled to his or her opinion and to change it as he or she so chooses. It is also nearly impossible to agree on a set of facts. When your favorite university’s hiring decision for head football coach is “tried in the court of public opinion” that is one thing. It makes for good sports talk show fodder. However, when those in executive leadership positions openly and exhaustively question the decisions of other parts of our government, such as courts or legislative bodies, the outcome can be disastrous as it undermines the entire process we depend on to establish the rule of law. The higher up the official, the larger their “court of public opinion” and the greater the potential for harm. Those of us without a large “court of public opinion” must take our cases to courts of law. Executive officials should have to do the same, and, above all, should respect the result obtained. As an attorney who has practiced for nearly ten years, I have seen firsthand how serious judges in my district take the run of the mill DUI case. I have faith that their counterparts in the courts of the other states and in the federal courts take seriously lawsuits with national importance. I choose to not give up on the rule of law.