The common concept about laws is that it is a set of societal rules that is rather fixed than flexible. It is a fact that what the constitution states is black and white. But often times, people forget that despite the presence of laws, human beings are still in charge of the adjudication process at the end of the day.
This is the explanation behind the concept of “law as a living body.” They are not rigid statutes which are subject to a single interpretation. Just like a human body, the metaphor used to describe laws, it adapts to the changes in its environment. It evolves and outgrows its past self in order to better suit the needs of the status quo. While one interpretation might have been applicable at one time, it doesn’t mean that the same is still true a decade after.
Law on Books versus Law in Action
As Ed Humpherson defines it, the concept of law on the books concerns “formal and substantive legal rules, documented on statute books” (Humpherson, 2009). While this could brief future lawyers or paralegal practitioners about the legal world, it is not the supreme test on whether a person is innocent or guilty.
The critical human aspect of judges plays part while adjudicating cases because there are different needs to be considered which the solons before (who made the federal laws we practice today) were not able to foresee during their time. As discussed earlier, the living body of law has the tendency to adapt to changes. Therefore, radical changes in societal mores allow deviation and interpretation of the federal laws.
Objectivity of Law
The term objectivity elicits ideas of being free from bias or the state of being factual. All kinds of laws are expected to be objective because laws are a socially binding legal directive. There could be no law passed in congress that would endanger the well being of any specific race or gender. Especially for the US which lives by the virtue of fairness, it is very important that all federal laws be objective for various races, genders, social status.
Background and Purpose
It has been said that “the Constitution guarantees that the government cannot take away a person's basic rights to 'life, liberty or property, without due process of law'” (Due Process, 1995). Simply put, due process is the way by which all accused people undergo proper legal process—with legal help available to provide the defense of the accused. Also included in this clause is the notion of innocence until proven guilty. There is no way that the government can presume an individual to be guilty without conducting prior investigation.
Positive and Negative
The positive side of this is that all people protected under the US Constitution are assured that their rights will not be violated in any way. The most decisive way of knowing whether your government can protect its citizen’s rights is when it protects the offender’s rights as well.
Nevertheless, there is a downside to this ideology because some offenders who are being linked to a crime, are not being prosecuted because of this. Lack of ample evidences and being presumed “innocent” until proven otherwise provides leeway for the accused to maneuver and get away from the authorities. Changes since 9/11
It is very important to mention that the September 11 bombing of the World Trade Center made the issue of due process even more critical. With the US’ war on terrorism ongoing, thousands of American foot soldiers were sent to Iraq to neutralize its armed forces. The Bush Administration failed to give Iraq the benefit of the doubt by conducting investigations on whether Iraq really has nuclear weapons and was waging war against the US. Thus, after invading the Iraqi soil, experts believe that Iraq was never really the rogue state that was described by the Bush Administration when it first launched attacks to the country.
Rights of the Accused
Background and Purpose
There are several rights provided for a person accused of a crime. Among the most popular is the right against self-incrimination or the “Miranda Rights”. It also includes the right to fair and speedy public trial, right to counsel, and right to indictment by a grand jury.
Positive and Negatives
As discussed earlier in the concept of due process, the ultimate way of measuring how much your state is willing to protect its people’s rights is by looking how it respects the rights of its accused citizens. Giving rights to the accused allows him to defend himself from unfair treatment and prejudice against his innocence. On the other hand, these rights may also be manipulated to escape the verdict of the law and its subsequent punishment.
Interpreting These Rights After 9/11
After 9/11, the implementation of the rights of the accused was overridden by strong sentiments against terrorism. The fact that Khalid Sheikh Mohammed was waterboarded 183 times (Frieden & Kokenes, 2009) before he admitted to the charges was already a form of torture—s strategy by which CIA coerced the accused to accept the charges against them.
Applying the concept of the living body of law, coercing the accused to admit the charges against them are unlawful—and being waterboarded almost 200 times is definitely inhumane. But the operatives can simply argue that they are just doing their “job”.
The state has the obligation to protect its people from threats to humanity such as terrorism. Then again, the state also has the responsibility of extending the rights due to a person—despite being accused as a criminal, or a terrorist at worst. Again, due process and the rights of the accused must be extended to all people. Police brutality can be cited as a form of breaching the right of self incrimination since the accused is being forced to speak against himself to avoid further torturing.
Bibliography Due Process. (1995). Retrieved August 8, 2010, from The Lectric Law Library: http://www.lectlaw.com/def/d080.htm
Frieden, T., & Kokenes, C. (2009, November 13). Accused 9/11 plotter Khalid Sheikh Mohammed faces New York trial. Retrieved August 8, 2010, from CNN: http://edition.cnn.com/2009/CRIME/11/13/khalid.sheikh.mohammed/index.html
Humpherson, E. (2009, April 1). Risk and Regulation. Retrieved August 9, 2010, from London School of Economics and Political Science: http://www.lse.ac.uk/resources/riskAndRegulationMagazine/magazine/winter2007/onTheBooksAndInTheRealWorld.htm