Wednesday, March 2, 2011

dura lex, sed lex

the law is hard, but it's the law.

this is an old legal maxim, hence the latin. (we lawyer types just love us this dead language. there's even a special term just for this sort of thing. we lawyer types also really, really love ourselves and our little world.) this one is a favorite of my favorite (HEH) supreme court justice, one antonin scalia. he uses it to justify all manner of awful things, citing it to shirk his responsibility to defend the constitution and put off his role onto an often-unresponsive congress. it's a rigid, draconian version of the role of law in life. it's essentially the legal world's version of jeez, that sucks. hate it for ya. it comes up a lot more than you'd think, too.

now, i'm all for the rule of law. it's what makes us who we are as a country, and a leader of the world at that. i just don't see life, the law, or much of anything in that strict of terms. i think our founding fathers were smart enough to build our nation and its framework in such a way that if something new comes up, we've got the flexibility to deal with it. so i have a certain amount of trouble embracing this idea as a valid construction, whether applied to the law or to other parts of existence.

i wish other people agreed with this. the longer i live, the more i run across people who have bought into the rigidity, the calcification of dura lex, sed lex. even if someone's worldview is flexible and open in most ways, it sneaks up in rather stunning, and often disappointing, places. i've had some pretty excruciating conversations with people i love in which they betray startling levels of rock-hard disdain for anything other than my way or the highway, and there's NO room for debate here. the issues to which these people apply their rigidity - up to and including reproductive choices, for the love of god -  shocks me, and sometimes it breaks my heart. i try so hard to be open, to be accepting. as an inveterate pessimist (apparently - stay tuned for that meditation later), that's not always easy. but my job demands it. my outlook on life demands it. other people don't see things that way.

the "law" in people's lives varies wildly. emotion and reason often clash in spectacular fashion, and decisions made aren't always what you'd expect from the outside looking in. i refuse to make that kind of snap judgment on someone else's life based on things that i would do in mine. that's the basis of my worldview and my professional philosophy: it's why i'm pro-choice, a liberal, a feminist and an avowed enemy of strict constructionism. i believe that a lot of things in this world can't be strictly judged. i wish i could make other people understand the value of that.


  1. Hey, us Church singers use a lot of that lovely dead language, too. It's like code. Maybe I should start writing my comments in it....

  2. i find it interesting the supremes pretend to know what the framers believed. that is, in a word, impossible. all they can do is interpret the words that were written through their own lenses, which have been colored by their experiences.

    this goes both ways - the right going after privacy and due process and the left going after amendments two and five (especially 2). in the end, though, to paraphrase sir winston, it's the worst form of justice, except for all the others that have been tried.

  3. Every side uses their interpretation of Law to enforce their argument. This has been going on for many thousands of years now...

    I think that it's amazing that it still seems to work for the most part... even the outcomes with which I don't agree...


  4. A-TO-THA-MEN. Although Scalia can write a funny opinion (his sense of humor is unwavering), he has no idea what he's actually talking about. If we want to survive as a nation, we can't always be using interpretations of things as they existed over two hundred years ago. That's like using medical dictionaries from the 1700s. It's an arbitrary point in time that we don't exist within. We exist within the here and now.

  5. "sneaks up in rather stunning, and often disappointing, places."... sigh
    its heart me as well... thats the only word that works...


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