California appellate judges urged legislators to update an arcane 19th century law, as the panel reversed the rape conviction of a man who authorities say pretended to be a sleeping woman’s boyfriend before initiating intercourse.
The Los Angeles-based appeals court said that the 1872 measure doesn’t give single women the same protections as their married counterparts in certain rape cases.
“The judge called what happened “despicable” but said the state’s law left the court with no choice.”
Read the full story here if you can stomach it.
This case forces us to think about our concepts of law and justice.
I stumbled across Stephan Kinsella’s blog post (which consists of a podcast and accompanying slides) which really helps shed some light on what’s going on here. I’ve pulled out some of the relevant points from his slides, but please check out his post for more.
In 1884, James C. Carter wrote a paper criticizing David Dudley Field’s attempt to (legislatively) codify New York’s common law. In it, Carter opposed replacing case law with centralized legislation. He did so for a number of reasons.
Case law precedents are flexible and allow the judge to do justice. But statutes are applied literally, even where injustice is done or the legislator did not contemplate this result. Thus, replacing organically developed law with artificial legislation changes the role of courts and judges from one in which the judge searches for justice into mere squabbles over definitions of words found in statutes (as we see in our rape example above). And the state controls what words are there, by legislation—decrees.
In other words, this paradigm shift makes justice irrelevant.
Here’s a great quote from Carter:
“At present, when any doubt arises in any particular case as to what the true rule of the unwritten [i.e., judge-found, common-law developed] law is, it is at once assumed that the rule most in accordance with justice and sound policy is the one which must be declared to be the law. The search is for that rule. The appeal is squarely made to the highest considerations of morality and justice. These are the rallying points of the struggle. The contention is ennobling and beneficial to the advocates, to the judges, to the parties, to the auditors, and so indirectly to the whole community. The decision then made records another step in the advance of human reason towards that perfection after which it forever aspires. But when the law is conceded to be written down in a statute, and the only question is what the statute means, a contention unspeakably inferior is substituted. The dispute is about words. The question of what is right or wrong, just or unjust, is irrelevant and out of place. The only question is what has been written. What a wretched exchange for the manly encounter upon the elevated plane of principle!”