The Implicit Premise Beneath the Surface

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The study of law can be disappointing at times, a matter of applying narrow rules and arcane procedure to an uncooperative reality; a sort of glorified accounting that serves to regulate the affairs of those who have power–and that all too often seeks to explain, to those who do not, the ultimate wisdom and justness of their condition.

But that’s not all the law is. The law is also memory; the law also records a long-running conversation, a nation arguing with its conscience.

Barack Obama, Dreams from My Father: A Story of Race and Inheritance

Law school is all about “applying narrow rules and arcane procedure to an uncooperative reality”. Little attention is given to the backstory behind the rules. No pictures provided of the witnesses, no video recording of the testimonies, no references to the rich lives behind the names. Rather, the human element is stripped away. And in separating the rules from the story, little thought is given to the premises lurking beneath the surface.

But behind all judicial decisions is the weight of history, tradition, liberalism, and capitalism. Adam Dodek and Alice Woolley write in In Search of the Ethical Lawyer: Stories from the Canadian Legal Profession “[a] legal story incorporates legal norms, cultural contexts, history, institutions, structures, and the people whose lives, whether willingly or not, come into contact with the law.”

It is easy to see an implicit premise in an out-of-date case. Professor Constance Backhouse writes in In Search of the Ethical Lawyer about a decision regarding a marital dispute. In the early 19th Century, Chief Justice William Campbell ruled that the wife had no justification for leaving the home after she was beaten for some time in front of multiple witnesses. “Justice Campbell declared that ‘a man had a right to chastise his wife moderately’… This legitimation of wife battering stood for years as the prevailing Canadian judicial edict on a husband’s rights.” The main implicit premise being that women should be subservient to men.

Ultimately, even the simplest of cases encapsulate the weight of legal norms, history, institutions, and structures that are greater than any two parties. Liberal theories on democracy and the division of property inform all decisions. The ideas of Hobbes, Locke, and Rousseau remain strong as judges implicitly entrench them with each passing decision.

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