The Law, Semantics, and Education

Greetings, loyal minions. Your Maximum Leader just loves Sadie. One minute you think she's all about naughty bits that make your groin wake up and pay attention, the next minute it is quoting Goethe and giving a lucid breakdown of evidenciary standards and the definition of murder.

Your Maximum Leader has long ruminated to himself about the change in the term "malice" as it applies to the law and murder specifically in the example of the Peterson case. Sadie's salient point here goes like this:

The problem with the definition is that the current definition of malice aforethought has gone far beyond both its common sense and original legal meaning. The resulting conflicts resonate throughout homicide law, warping an entire body of law. One would think that the inclusion of "malice" precludes anything but ill will of the defendant towards his victim, if one thinks of the everyday lay use of the word. Nope. Malice as a legal term of art merely leads one to believe that there was a deliberate intention to kill, whether or not this was precipitated through ill will. Blackstone complicated things with pressing the division towards express and implied malice....but generally, it's relatively accurate to say that Malice Aforethought is akin to premeditation or deliberate planning of the killings. Yet jurors consistently express confusion about this concept due to semantic struggles.

This is a point your Maximum Leader has thought about before. And he always seems to come back to the problem inherent in a system that relies on untrained (but not always uneducated) jurors to determine how a law is to be applied. The semantic confusion comes when a juror has to have the law clarified for them. Or even worse, confusion arises when a lawyer feels he must clarify the law for a juror or group of jurors. This is when the parsed definitions and convoluted interpretation of terms comes into play. Sadie continues:

Given the inherent difficulty of instructing juries, and the overriding need for courts to tailor their instructions to conform to the law, criminal statutes should be written in easily understood language. If a crime is defined in terms lay jurors can understand, it will be much easier for courts to give juries understandable instructions that conform to the law.

Bingo! Laws written in easy to understand language. Now, first off your Maximum Leader will speculate that when Blackstone was writing his commentaries the average Briton who would be involved in a jury trial was better educated than is the average American (or Briton) in 2004. A lawyer (or barrister) wouldn't have had to explain malice to them. They would have known what it meant. But now the law and the state of education have been on divergent paths for about 200 years now.

Lawyers have grown more and more specialized. As legal specialzation has grown, so as the need for practicing lawyers to have their own "parlance." It makes them sound more important and knowledgable. Alas, these lawyers are now the ones writing the law for the most part. They take their special parlance and write it into the law so as to make it unreadable to a layman.

Recently, your Maximum Leader was reading a book on Richard III and the Buckingham Rebellion. (He can't remember the exact title - and he can't find it on Amazon either. Perhaps this is a book he picked up in Britain and he'd have to look on Amzaon.co.uk...) And a particularly interesting part to this book was how Richard, as Duke of Gloucester and "Lord of the North" for Edward IV, was particularly adept at assuring the laws were kept and justice was swift, fair, and public. Richard was wildly popular in the north of England because he was such a able administrator and lord. When Richard became King he was not able to translate his success in the north to success in south largely because his vassals in the south were not as committed to keeping the Kings Justice as Richard was.

Your Maximum Leader brings this up because of a long passage he read dealing with the public announcement of court findings. There was a concern by Richard and his vassals that when a judge made a ruling that it be clear and understandable by the people. This is what is missing from our legal system. Our laws and our legal decisions are written by lawyers and judges for the benefit of lawyers and judges. They should be written more with an eye towards the people for who's benefit the laws are made.

Carry on.