Assignment: Law as a Living Body

Law as a Living Body

The phrase “law on the books” refers to the “official rules and procedures

specifying what should occur at any given step in the legal process.” The phrase

“laws in action” refers to “how procedures are actually implemented.”

Technically, only the laws relative to the case and admissible evidence should

play a role in each case that moves through our legal system. Unfortunately,

however, research has shown that outside forces have been known to influence

cases. These forces can be anything from the nonverbal behavior of the judge to

the political mood of the people involved in the case. (Meyer, 2003).

The theory that the law is objective is just that, a theory. In reality, “a

judge (and sometimes a jury) must interpret and apply the law given a particular

set of facts in a case, and this means that human discretion must enter the

picture.” Because the law is open to interpretation, it is impossible for the law to

be applied the same way in every case. In a perfect world, judges and juries

would only apply the law, not interpret it. (Meyer, 2003).

Picture the law as a flower. The first thing you would do is plant a seed.

As the flower grows, it changes. The stem grows, then the leaves grow, then the

petals grow to form the flower. The law is similar to a flower in that it is always

changing. “Different areas of law that are germane to a particular legal issue

appear to provide contradictory precedents” which require laws to be changed in

order to reconcile these differences. (Meyer, 2003).

Due Process

Due process of law has been around since the enactment of the Fifth

Amendment to the United States Constitution in 1791. The original interpretation

of due process was that it would protect “citizens only from infringements of their

basic civil rights by agents of the federal government, but not agents of state

governments.” This interpretation meant state governments could violate

citizens’ civil rights with little or no consequences. Congress reacted to this by

enacting the Fourteenth Amendment to the United States Constitution in 1868

which provided a “federal legal mechanism for enforcing state violations of civil

rights.” The purpose of due process of law is to provide “standards for fair

treatment of citizens by federal, state, and local governments.” (Meyer, 2003).

A positive aspect of due process is that it mandates that everyone be

treated equally and fairly when involved with the legal system. A negative aspect

of due process is that it can place limitations on the legal system. The

interpretation of due process has changed since the September 11th attacks in

that, even though the Fifth and Fourteenth Amendments of the United States

Constitution have not been amended, even people accused of terrorism are

given the same rights as United States citizens, such as in the case of the

Guantanamo Bay detainees. (Associated Press, 2008).

Rights of the Accused

Rights of the accused are part of the due process protection given United

States citizens and date as far back as the enactment of the Bill of Rights.

People accused of committing crimes are provided protection under the United
States Constitution to ensure the legal proceedings are fair. A positive aspect of

the protections given to accused citizens is that these rights prevent the legal

system from abusing an individual’s civil rights. A negative aspect of the

protections given to accused citizens is that even the most violent criminals are

given the same rights as law-abiding citizens. The interpretation of the rights of

the accused has changed since the September 11th attacks in that police and

prosecutors are allowed to listen in on the conversations between attorneys and

their clients.
 References

Associated Press. (2008). Supreme Court backs Guantanamo detainees.

Retrieved from http://www.msnbc.msn.com/id/25117953/ns/world_news-
terrorism

Meyer, J.F. & Grant, D.R. (2003). The Courts in Our Criminal Justice System.
Retrieved from https://ecampus.phoenix.edu/classroom/ic/classroom.aspx