There is one concept from law school that I wish everyone has studied and considered: legal formalism vs. legal realism, or how we view law. These legal philosophies have been the subjects of numerous writings from far more esteemed writers than I, but the basic concepts are easy to understand and, in my opinion, of vital importance when assessing lawmakers and judges.

Legal formalism is the idea that judges should look at the facts and the plain language of the law, and nothing further. The benefit of this approach is it increases the certainty as to the legal outcome, allowing parties to more accurately plan for the future. Put simply, it’s the “law is the law” approach. Put in Seinfeldian language, “The card says Moops.” If the card is wrong, it’s on the legislature to change it. The downside to this approach is its rigidness, as it’s easy to have an unjust or immoral result. Laws are imperfect tools created by man, and will fail. This is often the conservative approach, although legal conservatism is not the same as political conservatism (though there is overlap)

The opposing theory is legal realism, which means that while judges should look at the facts and the law, but also consider morality, fairness, and public policy generally. The benefit here is it acknowledges the context matters, laws are imperfect, and judges are not robots blindly and heartlessly applying a formula. Judges hear cases involving real people in real life, and should have some flexibility in order to see that justice is done. The downside, here, is that if one goes to far one loses all standards, and people will disagree as to what is moral and just. We do not want justice decided on mere whims, as that is no justice.

As with many things, I don’t believe in the extreme application of either approach, as both are flawed. The wording in laws matters, and should not be quickly or easily discounted. However, without hesitation I side with legal realism. Laws are made to serve society and effect justice. When that fails, something has to change. Legislative change is the preferred avenue, but sometimes that path will lead to justice in the long term but wrongness in the short. Judges must have some discretion to use their experience as a human being and decades of legal training to do what they thing is right, and if they are so wrong they can be appealed. The judiciary is a co-equal branch of government with its own obligations to uphold the Constitution. Yes, we must be vigilant against whim and anarchy, but we must be vigilant anyway. I would always free a guilty man over jailing an innocent.

I don’t write this today to persuade you to my approach, but simply to urge you to think about the role of law in society. Our elected officials, state and federal, choose judges, and those judges (hopefully) have legal philosophies. At the federal level, these people are appointed for life, and at the state level they are helping to make the law that most effects your life. These things matter. Honorable people can usually be trusted to do the right thing.

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