The virtue of a democratic system [with a constitutionally guaranteed right to free speech] is that it readily enables the people, over time, to be persuaded that what they took for granted is not so and to change their laws accordingly
United States Supreme Court Justice Antonin Scalia
The world would be a better place if law was the most boring occupation about.
Lawyers and the court room make for great TV drama, but if the outcome of most litigation was fairly predictable, we would all be better-off.
Ordinary people would not fear law suits or suing to uphold their rights if the law was simple. With the law clear-cut, every-one knows where they stand. People settle out of court. They do not misbehave in the first place because they know they will be liable and will have to pay.
Richard Epstein contents that
…greater judicial sophistication has not brought forth higher quality judgments, but rather the reverse
…An easy mistake for a modern judge to make is to assume that the tools he or she possesses are capable of being put to good ends, and that it is possible to tell which of the parties in a given case are the ‘good guys’ and which are the ‘bad guys’.
…Most of the cases that a judge sees are aberrations.
Yet it is a great mistake for a judge to assume that the rules a court creates only apply to the aberrational cases.
The legal rules will also govern the mundane cases that remain within the system, to be resolved without litigation.
The judge needs to fear that laying down an ideal rule for this one case in a thousand may unglue the system that works well for the other 999 cases.
We all bargain in the shadow of the courts and the law. Bargaining and the enforcement of contracts and property rights and the resolution of disputes would be a lot cheaper if we knew what would happen if we did not settle and went to court.
As an example of the simple rules he champions, Epstein proposed that the default divorce settlements be 50:50.
Epstein also supports employment at will as the default rule because "you’re fired, I quit" could not be simpler to understand and administer.
Everyone knows where they stand and a free to make more detailed marital or employment agreements if they wish. Many do: contractors and short-term routinely earn a premium over permanent employees with more job security.
The law attracts more than its share of reformers wanting to use the courts and judge-made law for political purposes.
If you want to reform the world, do what we ordinary people have to do: change your vote, write a mail to an MP, protest, donate to or even join a political party, or run for parliament.
Some lawyers think themselves above how ordinary people must resolve their differences in democracies: by trying to persuade each other and elections.
The great strength of democracy is a small group of concerned and thoughtful citizens can band together and change things by running for office and winning elections.
That is how new Australian parties such as the Labor Party, the Country Party, Democratic Labor Party, the Australian Democrats and the Greens changed Australia. One Nation even had its 15 minutes of fame with its 11 MPs. Australian state upper houses even have Christian, family and shooters parties and many independents. A middle-of-the-road Senate independent in South Australia nearly topped the poll.
All of these parties started in a living room full of angry, motivated people.
I agree with Antonin Scalia when he said that the purpose of the law is to slow the impassioned majority down:
Judges are sometimes called upon to be courageous, because they must sometimes stand up to what is generally supreme in a democracy: the popular will.
Their most significant roles, in our system, are to protect the individual criminal defendant against the occasional excesses of that popular will, and to preserve the checks and balances within our constitutional system that are precisely designed to inhibit swift and complete accomplishment of that popular will.
Those are tasks which, properly performed, may earn widespread respect and admiration in the long run, but — almost by definition — never in the particular case.
Democracy is government by checks and balance by putting the parties and branches of government in continual tension with each other – it is not trusting the specific people who are currently in power.