Did you know that you cannot read the law to find out what the law means?
It might sound crazy, but it's true.
The law is not the law?
Ask 20 lawyers to tell you what a law means (don't forget to pay them!) and you will get at least 20 different answers, possibly many more.
A really good lawyer who is honest will not answer your question, but instead do the following:
- Ask you which jurisdiction you will be in when determining the meaning of the law
- Tell you that they will need time to research your question in order to provide an answer (unless they are completely familiar with the law in question)
Good luck finding such a lawyer.
Applicable laws depend on location and status
Laws are limited by location. This can be clearly seen by considering the following:
- Does chinese law apply in the united states? No.
- Does georgia law apply in california? No.
In addition to being limited by location, what types of law (and which laws) apply based on your relationship to them.
- Common Law applies to everyone in the country except those specifically exempted (such as diplomats)
- Constitutional Law protects the people and applies to governments
- Statutory Law applies to those in the jurisdiction that the statute is relevant to OR to those who have opted in via contract
- Private Law applies to those that have chosen to be subject of the law
When researching law, you need to make sure that any laws you reference are relevant to both your location and your status.
We will talk more about status as we get into the process of law.
Court records hold the law
While it is true that legislators write the law, what any particular law means is determined by established case law. This means that judges decide what legislators mean when researching the law. Legislators generally dislike this and call it legislating from the bench.
Legislating from the bench
To decide what a law means, judges are supposed to do the following:
- Check to see what any higher courts have said about the law. If a case is found that is relevant (on point) then the decision in that case will apply.
- If there is not yet a ruling by a higher court, check for rulings in other areas higher courts. If such are found, a judge will generally give serious consideration to what was decided in that court, though they could potentially rule differently.
- If there are no other rulings by higher courts, check the law as written and consider the common law to interpret what the law means. Keep in mind that if the law, as written, is contrary to a higher law (e.g. unconstitutional, etc.) then the judge will try to come up with an interpretation that does not conflict with the law.
For this reason, a judge may (with validity) decide that the law means something other than what it states, ensuring that the law does not get repealed for breaking higher laws.
Of course, this power can be abused. Lower courts typically do not abuse this power simply because they look bad if a higher court overrules them on appeal. The real problems come when the highest courts (e.g. the Supreme courts) abuse this power for political or personal gain.
Evidence of the law
Written legislation, our constitutions, and coded law are, at best, just evidence of the law. Rely on them at your own peril.
Even if you read them with 100% accurately, you cannot be guaranteed that the law means what you think it means without consulting what has already been decided by controlling courts in your jurisdiction.
Consider the following example law
Short people, under the height of 5 foot 6 inches, are not allowed outside on sundays.
You might think the meaning is clear.
However, if you go into court and rely on this definition you might be in for a shock.
If a higher court has already reviewed this law and decided that 5 foot 6 inches includes the height of any footware (to ensure that anyone can be tall enough to avoid this law), then someone who is 5 foot tall would simply need to wear 6 inch platform shoes in order to go outside on a sunday without breaking the law.
If you relied on what was written by legislators and sued based on such a law, you would likely lose.
Higher courts control lower courts
When you are in a legal battle, you need to have an accurate view of any law that applies to your case.
To do this, you need to realize:
- We have a hierarchical court system
- Rulings by judges in higher courts control decisions by judges in lower courts
- The real law is what a higher judge has said it is
If you can find a higher court that has already ruled on the facts of law being tried in your case (e.g. an on point case), then you can force the judge in your case to abide by the definition that a higher court has previously provided.
If you provide the law as used in a higher court, the judge in your case has no choice but to agree with it unless he wants to be overruled on appeal... and no judge wants to be overruled on appeal.
If you cannot find an on point ruling by a higher court, then you might need to resort to using evidence of the law (e.g. statutes or laws as written). In such cases, you should realize that citing the law as written is typically given more weight than citing statute. Where there is a conflict between the two, what was written by the legislature is better proof of the law... provided it is not contrary to already established case law.
When challenging someone elses interpretation of the law (whether that someone be a government, a corporation, or a man or woman), you need to seek out decided case law that is on point in a controlling court.
By doing this, you present the judge in your case with two choices:
- Rule in your favor
- Rule against you and have the decision reversed on appeal by a higher court for error
If you choose to quote a statute instead of case law to back up your views on the law, do not expect any judge to rule in your favor.
This is one of the most important things to know concerning the law.
- I am not a lawyer
- Nothing I write is legal advice
- Verify what I say for yourself and make use of it at your own peril
- Attempting to use law without truly knowing the law is asking for trouble, especially in criminal cases.
This is part of my ongoing legal self defense series. Previous articles:
If you want to see future articles in your feed as I write them, don't forget to click my name below and follow me! Next up will most likely be how to actually read the law once you have found it.
Be well! @tony.jennings