Friday, October 5, 2007

Questioning the Court

I have been doing mental gymnastics this week about a case I encountered a few days ago. Despite the encouragement of our Civil Procedure Professor last year, I have struggled with the idea of criticizing a court’s opinion. Slowly, timidly and with great anxiety, I am starting to test the waters of critique when it comes to an opinion. From day one in law school, we learn by cases; the cases are representative of the Law, and as such, they have a certain aura about them. To question the rationale of a court’s opinion at this point in my legal development has seemed a bit premature. However, I am reminded that Chief Justice Marshall had less than a year of formal training, yet his impact on the practice of law was, arguably, the most significant of any member of the Supreme Court. The point is that the law is man-made, and as such, it is not perfect. Individuals have made the law what it is today, and while they were novices at one point, they grew into policy-makers. By pulling back the curtain, the effect is not disillusionment, but the prospect of a deeper understanding of the law.

This new foray into critique has given me additional opportunities to banter with peers and ask questions of professors, the result has been not only a deeper grasp of the material, but a renewed appreciation of legal discourse. It is through this discourse that our own ideas about self, law and society are refined. The study of law isn’t purely an objective study about what the law is, but a subjective study of what the law should be. (Kafka, anyone?) If we think a law, holding or policy is wrong, and we can articulate our reasoning, then we can attempt to change it. Alternatively, by delving into our reasons for disagreeing with a holding, we may come to find that we failed to understand it properly in the first place. It is win-win.

No comments: