NOTE: These seven essays were reproduced from my defunct blog Random Notes as they will be cited in my soon to be posted essay on common sense and pragmatism.
When discussing gay marriage with several people who supported changing the law, I was often confronted with the argument that society has accepted homosexuality, so the law should change to recognize it. Of course, changing social mores are not the sole reason for changing laws, nor are they even a sufficient reason in many cases, but I have a completely different reason to oppose this argument. Even assuming that the laws are supposed to exactly track social norms, the question remains, how quickly should the law change?
It is a fact of life that open homosexuality is accepted in most of the US at present, but people seem to forget how recent that change is. As recently as the early 1990's, open homosexuality, outside of certain urban enclaves, was the exception rather than the rule. The fact that "Will and Grace" was considered daring should be adequate proof of this. It has been less than 15 years that open homosexuality has been common, yet the proponents of gay marriage argue that the law is moving too slowly.
I would argue the opposite. The law should move at a glacial pace. And for a number of reasons.
First, the greatest benefit to any society is consistency in laws*. Men can work around almost any hardship, but when the law is inconsistent or arbitrary, planning becomes impossible. And a law which responds to societal changes swiftly is essentially an arbitrary law. If the law can change in a week or a month to follow a change in mores, then I cannot plan more than week or month in advance, as beyond that limit the law becomes unknowable. On the other hand, if the law takes a decade to change or five decades, then I can easily plan with almost no thought of the law, as those time frames are long enough that they require no recognition.
Second, if the law is too responsive to social trends, it can become wildly unpredictable and self-contradictory. Some trends come and go with remarkable speed, even in the law, and if the courts recognize every fad that comes along, they will be constantly reversing themselves as those trends fall out of favor.
Third, popular passions make bad laws. If the law were responsive to every social trend, then when baby Jessica was in the headlines, laws would have sprouted up everywhere banning any sort of well, or requiring a minder for each child to keep them out of holes. Popular passions tend to cloud common sense. In fact, this gay marriage debate may be such a case. Yes, gay couples want the rights of married heterosexuals, but they may be allowing zeal to cloud their recognition of the downside. As divorce attorneys stand to benefit much more than gay couples should the laws ever pass, gay couples may want to consider civil unions, or even another approach altogether to getting rights similar to heterosexual couples.
On the other hand, if we persist in trying to have the law exactly mirror the popular passions, what we will have instead will be a remarkably transitory law, changing faster than the summer fashions, reversing itself repeatedly, with no logic at all. If we change the law swiftly, if it is "responsive" and a "living" law, we will have an environment in which no one can plan for more than the present instant.
Of course, in some ways, that is exactly what we have. Judicial activism amounts to nothing less than an attempt to make the law more "responsive", in other words, to impose just such chaos on our society. At the moment, the need to appear to respect precedent keeps them from making changes too swiftly, or deviating too greatly from existing law, but as their confidence in an activist judiciary grows, and as more law professors provide them theoretical cover, they grow ever more willing to pronounce essentially arbitrary rulings from the bench. And, before too long, we will have precisely that "living law" that the activist judges desire and I fear.
And that is my greatest fear when it comes to activist judges. Not the liberal agenda they will impose, I would fear activists imposing any agenda. What I fear is that they will change the fundamental nature of law, the glacial pace of changes, and replace it with a rapidly changing, unpredictable law, which will result in nothing but chaos.
* I shall have to find citations after I post this, but there have been studies showing that even in unfree societies, prosperity is greatest where the laws are most predictable and consistently applied.
Those who read this article earlier may have noticed a disconnected bit of paragraph reading:
changing faster than the summer fashions, reversing itself repeatedly, with no logic at all. I could probably go on citing specific aspects, but the basic principle is simple. If we change the law swiftly, if it is "responsive" and a "living" law, we will have an environment in which no one can plan for more than the present instant.I think I somehow lost the beginning of this paragraph. So, to make the essay intelligible, I have tried to reconstruct my original thoughts, though it did require some modification of the remaining fragment. I hope I did justice to my essay.
Originally posted in Random Notes on 2008/04/01.