Interpreting the Law (Series: What Lawyers Do)

This entry is part of a series of articles that will form the foundation for readers to know what their lawyers can do for them. You first need to know what lawyers and the legal system are capable of before getting specific. I hope you enjoy it. Feel free to add comments with any questions you might have.

Lawyers are a major part of the backbone of a complex system that keeps our society organized, functioning and progressing. Part of what they do is helping in the interpretation of the laws made by the legislative and executive branch of the federal, state and local governments. Legislators cannot foresee every situation where the law they just wrote will encounter problems in the real world, how it will be applied and tested. Lawyers though, are the guys that have to confront those situations before anyone else.

For instance, in court, a lawyer has to use reason, evidence, and perseverance to persuade a judge to rule on his/her new perspective and application of a law as a result of circumstances unforeseen by legislators and prior court cases. This is the reason why law’s relating to the first amendment’s free speech clause keeps on reappearing in the U.S. Supreme Court. People need to be told time and again, in different circumstances, that telling the truth is still an American value. So contrary to common stereotypical expectations, lawyers actually fight year after year to prevent people from being allowed to lie (especially in court cases).

Tens of thousands of cases are tried each year that challenge the ways our laws are interpreted circumstantially. This is what keeps our system progressing and prevents the legislative group from having too much power. Courts of appeal and supreme courts are given the power to reinterpret laws and even declare some laws unconstitutional. E.g. The Brady Gun Control laws. Apparently, politicians, although many were lawyers, often set aside reason and opt for what looks good to their political careers instead of considering what is actually legal. Keep in mind though, once a politician, never a lawyer.

It is important to know the following distinction in order to know how to use a lawyer. What is the difference between laws that congressmen make and the ones judges make?

First of all, yes, judges can make laws. But, they cannot proactively make laws, only legislators can do that. Legislators make what is called statutory law, or written law. It is the law that is codified and has no interpretation coming off the governor’s or President’s desk. It is what it is. That is until someone breaks it or gets in someone’s way. This is when it eventually winds up on some lawyer’s desk, and he looks at it like a Rubik’s Cube. Long story short, he takes the case to court, the judge likes/dislikes what he says, the judge rules on it, the ruling is recorded and bam! it has become what is known as “Common Law”. A long time ago, this law was not written. Sometimes it is still referred to as “Unwritten Law.” Common law is flexible. It molds to new circumstances and cultural norms. What one judge ruled fifty years ago doesn’t necessarily have to be obeyed by a judge today in the same level of courts. This also applies to laws that once were deemed constitutional a century ago, but today they would be absurd and unconstitutional. Isn’t our system great?!

So, even though you got arrested for breaking the law that says you can’t ride a donkey backwards down Main street on Ash Wednesday, that law may be deemed unconstitutional with a decent lawyer and a well-fed judge. And if you are told you can’t pray in a state park, be glad that judges can interpret the law to say that you can. There is always hope in America for honest people, because of honest lawyers.