Money & the Law: The two roads to laws: statutes and the courts - Colorado Springs Gazette
It's that time of year again when, according to Mark Twain, “no man’s life, liberty or property are safe while the legislature is in session.” (To be perfectly transparent here, although Mark Twain frequently used this expression, it actually first appeared in a written opinion in an obscure 1866 New York probate case.)
This year, the Colorado legislature — more properly known as the General Assembly — convened on Jan. 12 and, per the state Constitution (Art. V, Section 7 for purists), it must complete its regular session within 120 days — by May 11. As of this writing, 134 bills have been introduced into the House and 94 in the Senate, with more to follow. As usual, the variety of topics covered by these bills is remarkable.
To put the work of the General Assembly into context, laws come from two basic sources — court decisions and statutes. The theory behind court-made law (the "common law") is that rules of law should grow out of real-life controversies requiring resolution. Per this theory, if you put two disputing parties in the judicial arena, each seeking a favorable outcome, they will thoroughly explore the issues. And, out of this adversarial process, truth and wisdom will eventually come.
The idea behind statutes is very different. There, those charged with writing statutes take on an entire subject matter (dangerous driving, child abuse, wild animals, timeshare resales, marijuana) and try, through reason, debate and compromise, to develop an enlightened set of rules.
Neither system is, of course, perfect. Court-made law is slow to develop. In addition, since resolving legal disputes through the courts is cumbersome and expensive, only a small sampling of human activity is exposed to judicial scrutiny.
But then statutes come from legislatures, which are made up of politicians, which doesn't always generate confidence in our legal destiny. Furthermore, statutes are often written in haste, resulting in ambiguities, and are inevitably a product of compromise. Thus, when comparing legislative rule-making to judicial rule-making, it's useful to remember the old saying about the two things you should never see being made — a sausage and a law. (This statement is attributed to Otto von Bismark, chancellor of Germany from 1862-1890. It's too bad he and Mark Twain never met — or maybe they did. Twain lived from 1835 to 1910.)
To round out the picture here, what ultimately happens in law-making is a system of checks and balances. If an appellate court gets out of touch with the mood of the electorate, the legislature steps in and enacts a statute that overrides the court's decision. If the legislature runs amuck (equally likely), courts find ways to interpret a statute to bring justice back into the equation.
In the end, we seem to have a system that is flexible and produces laws that are generally fair, predictable and sensitive to many points of view. And, while not all the people will be happy all the time, the system continues to be better than any proposed alternatives. Or at least a lesser evil.
If you want to know more about what the General Assembly is up to, it has a comprehensive, user friendly, website at https://leg.colorado.gov.
Jim Flynn is with the Colorado Springs firm of Flynn & Wright LLC. You can contact him at [email protected].
source: https://gazette.com/business/money-the-law-the-two-roads-to-laws-statutes-and-the-courts/article_d51ba084-8382-11ec-a789-dff14fe4134b.html
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