Copyright © 2010 Lawyerling. All Rights Reserved. Snowblind by Themes by bavotasan.com. Powered by WordPress.
I am coming to the conclusion that everything is arguable, including the law. Don’t get me wrong, I know that the art of being a lawyer is the art of coming up with and applying crafty and persuasive arguments. Before coming to law school though, I would have never thought that those arguments would be about the law. I expected the arguments to be about its interpretation (what does this law mean?) or application (does this law apply?).
To take an extreme example, say someone has been accused of murder. Arguing about the law means that you’re arguing over whether or not there is a law against murder. Arguing that about the application of the law means you’re arguing that what the accused did is not murder. Big difference because by arguing the latter, you are implicitly acknowledging the existence of the law against murder.
Of course nobody would seriously argue that there’s no law against murder. One only has to look at section 235 of the Criminal Code of Canada to confirm the law’s existence and see it spelled out in black and white. This is not as easy in other cases, particularly when it comes to the common law.
The case I ran into a few days ago concerned compensation for nervous shock induced by negligence (Mustapha v. Culligan, the “fly in a waterbottle” case). The courts struggled with whether or not there was even any law in Ontario that would entitle Mr. Mustapha to recover for his psychiatric illness. To add to the confusion, the Ontario Court of Appeal and the Supreme Court of Canada came to completely different conclusions on this very question. The arguments did not center on whether the laws regarding to nervous shock applied to this case, the arguments centered on whether or not those law existed. Once again, big difference.
One of my professors says that everything is arguable. If this is true, how are individuals supposed to structure their affairs so as to not run afoul of the law that may or may not exist? If everything is indeed arguable, it’s great for lawyers (cha-ching!) and judges who have a very wide role in setting social policy. I’m not so sure that it’s so great for everyone else. On the other hand, it’s this uncertainty that gives the law flexibility to evolve through judicial decisions. So the choice is between uncertainty and rigidity. Pick your poison, I guess…
February 28, 2010 at 10:38 am
My Dad always said that a smart man can justify anything. ANYTHING. Lawyers and judges prove his point every single day, for better or for worse. Still, I’ll take Canada’s legal system, however imperfect, over any other country’s anytime.
February 28, 2010 at 9:08 pm
Your dad’s a smart man.
March 1, 2010 at 12:00 pm
LOL, now justify it!
April 1, 2010 at 1:10 pm
Hey,
I know you’re busy right now, but would love to hear your thoughts on this story someday:
http://www.guardian.co.uk/uk/2010/apr/01/simon-singh-wins-libel-court
I think that this is a big win for science (hooray!), but it raises a lot of questions about the legal system that allows these kinds of libel suits to happen.
April 2, 2010 at 1:36 pm
Defamation (slander/libel) is always an interesting area of law. Basically, how here’s how it boils down: truth is a defense, opinion is a defense if it’s considered a “fair comment”, and there are other defenses as well (i.e. parody).
I think in the case you mentioned it depends on what was actually written (sorry, I didn’t look for Singh’s original piece). If it was written in a way that suggests that chiropractors are a pack of liars with nothing to back it up, I don’t see why there wouldn’t be a libel claim. If it was written to say that there is doubt on what the chiropractors are saying because of X, Y and Z and here’s the science, I don’t see why Singh wouldn’t argue truth. The fact that Singh didn’t argue truth raises my eyebrows in suspicion because if his piece was based in science, it should not be a hard defence to establish (all he’d have to do is prove that it is 50+1% likely that science casts at least some doubt on what chiropractors are saying).
I’d have to learn more about this specific case before I can say anything else (and I just don’t have the time right now). Remind me in May and I’ll look into it. =))