by Wilton H. Strickland

I was alive during the Bicentennial in 1976 but too young to remember it. It gives me great honor and joy to have lived long enough to experience my nation’s 250th birthday (the Semiquincentennial, or half of five hundred years, a good word to add to your lexicon). 

A colleague once asked me where I get my political ideas from (she perceived them as odd). “The Declaration of Independence,” I immediately replied. This document proclaims that we are endowed by our Creator with unalienable rights, including the right to abolish any government that fails to uphold them. This is the true source of our greatness. Not the natural wonders. Not the steel skyscrapers or marble statues. Not the robust economy. Not the fearsome military. None of that makes us great. Instead, it is the bold belief that government is our servant, not our master, and that we retain the right to fire it.

Our legal system has some important features that are designed to uphold the political ideals of limited government and individual rights. There are far too many of these to discuss in a single post, such as the jury system, the rules of evidence, appeals, and so on. Two of them, however, loom so large that they often go ignored.

Our Legal System Is Adversarial

The first monumental feature of our legal system is that it is adversarial. Litigants duke it out by advancing their subjective version of events and asking the questions they prefer to ask, while the judge plays only a minor role as referee. Such a system empowers the citizen by keeping the government’s role limited. Such a system also is wise because it acknowledges that everyone is biased and that the truth does not come from a particular individual, especially not a bureaucrat; instead, truth arises from a clash of competing interests. This parallels the wisdom of ancient Greek philosophers, who saw truth as leaping up like a flame during interpersonal dialogue. Many other legal systems are inquisitorial, meaning that the judge plays a much larger role and purports to seek the truth by conducting his or her own investigation. I trust that sort of system far less than our own, not only because it empowers the government at the expense of the citizen, but also because it presumes that the government is neutral and unbiased (a laughable but also dangerous notion). 

Our Legal System Relies On The Common Law

The second monumental feature of our legal system is that is based on the common law, which we inherited from England. Contrary to popular opinion, common law does not come from judges but rather from the people (i.e., the commons). The judge’s role is to observe the people’s customs and to resolve disputes by applying those customs as they gradually evolve. This is a grassroots system of dispute resolution that arises from ongoing dialogue between the judge and the surrounding community. Better yet, once a court finds that a particular custom is the people’s law, courts in later disputes must treat the prior ruling as binding precedent and apply it in similar circumstances. This means that different litigants can expect similar results in similar circumstances, thereby fostering equality among citizens regardless of wealth or status. In stark contrast are the many legal systems based on civil law, whereby the judges are not bound by people’s customs or by rulings in prior cases, but rather apply statutes according to the judges’ personal perspectives in every case. Under this system, litigants cannot expect similar results in similar circumstances, nor can the litigants’ interactions with the judge help contribute to the law’s evolution. Instead, temporary legislative majorities impose their will and leave statutes in place to fossilize, long after their utility has worn out or has been proved wrong.

It is important to note that our system uses the common law only for the resolution of private disputes, not criminal cases, where we strictly rely on statutes because of the need to limit criminal punishment to narrow circumstances that cannot be altered after the fact. This makes good sense and is compelled by certain provisions of the Constitution. With regard to private disputes, however, the common law remains a highly flexible, egalitarian, and democratic tool.

One time I was discussing these points with a colleague (not the one who asked me about my political ideas). He was flabbergasted that I would characterize the common law as more democratic than the civil law. In his view, the people’s ability to elect government officials makes all of the statutes democratic by their very nature, surely more democratic than judges, many of whom are appointed rather than elected. For my part, I am flabbergasted that anyone can believe that elected officials embody or pursue the will of the people rather than the will of monied interests. It is well documented from the left and from the right that “representative” governments do not uphold the will of the people but, in fact, often diverge from it. The manner in which many Western governments have effectively erased their borders and allowed foreigners to enter at will stands as a troubling reminder of this. But even if “representative” governments truly are representative, they cannot match the common law’s reliance on regular dialogue with the community, which occurs on a daily basis rather than every few years. Judges are in the trenches with the people and see what the people are experiencing up close. Moreover, the common law organically changes when the people’s customs do, unlike statutes that remain frozen in amber long beyond a sensible expiration date.

In short, the political ideals of the Declaration of Independence are well served by our legal system, whose foundations in adversarial dispute resolution and the common law help keep the people sovereign.