Insidious judicial activism - The Washington Times: Commentary

Insidious judicial activism - The Washington Times: Commentary

As an alum of the Indiana International and Comparative Law Review, I find the study of foreign law and procedure as well as their histoies invaluable. In my recent study of the English system of equity formerly embodied in the Chancery Court, I find the state of lawyer's understanding of their own history woefully inadequate.

What David Limbaugh writes about is another permutation of that inadequate understanding. In my experience on the law review, I found that there is little common methodology of analyzing international law. This means that looking at other countries' laws can be used to reinforce whatever law is espoused as the solution.

Without some methodology, we lose what of the most valuable aspects of the common law system which is its predictability. It is this growing loss of predictability that is destroying our system.

With no methodology and 150 or more different countries in the world, let alone their component states and provinces, a legal essayist or judge can probably point out a good standard for us to follow.

What about security of property? Well, in China, they can prevent terrorism easily because they have little protection of home and hearth. We need more security. Let's be like China.

What about freedom of speech? Well, in England, libel and slander laws are very tight. This prevents famous persons, including the Prince of Wales, from being spoken ill of in some respects. We need less libel and slander, so let's be more like England.

In fact, to make sure that libel and slander is reduced, we should be more like the Taliban . . . .

Clearly, with these examples, we can justify capital punishment for libel and slander and no protection against unreasonable search and seizure.

This debate about whether to consider foreign law is not new. Even professors on the history of equity debate whether Roman law may be considered to reach decisions in equity because the first chancellors (i.e., judges in equity courts) were priests and versed in Canon Law, an outgrowth of Roman law. See C.J.S. Equity sec. 3. There is no evidence of this assertion in the Chancery's records, because chancellors did not explain their decisions for centuries. McClintock on Equity sec. 1-3. They are just inferences. No historian worth his salt can back up this assertion.

This is just a simple example of how this problem of lack of knowledge about our own legal system exists. In future, I will write about why this lack of knowledge is dangerous. But imagine this lack of knowledge of legal systems can start running rampant through our own legal lsystem! What will that do the predictability of our law? Add that to lack of methodology, we have disaster.