By: Alan Freed
There is apparently a superpower secretly imbedded in every lawyer’s license to practice. That power gives us the ability to determine what is legal, and what is not, regardless of the area of the law and whether we have any experience in that area.
This often comes up when a politician takes some unwanted action. “Is that even legal?” someone will ask me. That question is more complicated than most non-lawyers realize.
How do we determine what is legal and what is not, and what does that determination mean?
Most people think of “the law” as something written down, like a speed limit or a prohibition against assault or murder. They are not entirely wrong. The US government, individual state governments, counties, and cities all pass laws outlining the rights and responsibilities of individuals, governments, and businesses. Some of these laws are written very specifically, while others contain very general language. In all cases, these laws are subject to interpretation by administrations or courts, since no law can cover every set of circumstances.
Some laws are criminal statutes. These laws define crimes and set out punishments for those who commit them. These are the kinds of laws people frequently think of, since so much of what we see on our favorite movies and TV shows involves criminal conduct and trials. People often assume if someone violates “the law,” they will be subjected to criminal punishment.
Most laws, however, cover a wide range of non-criminal (known as civil) subjects, such as contracts, real estate, business practices, divorce, wills, and a host of others. These laws also establish guidelines for conduct, but violation of these laws does not result in a jail sentence. Rather, they can be used by judges to determine whether, by violating them, an individual or business should be subject to monetary penalties, because another business or individual has been damaged. In other contexts, such as divorce or probate, judges decide issues such as how property is to be divided, support is to be paid, or children are to be cared for, all based upon the interpretation of written laws or review of prior court decisions.
When cases go to trial, it is up to the judge to determine how to interpret the written and unwritten laws. Judges rely upon precedent, in the form of the written opinions of other judges who have dealt with similar cases. Those opinions are collected and published so lawyers and judges can refer to them in deciding whether disputing parties have acted according to the law’s requirements. If someone isn’t happy with the judge’s interpretation, they can ask a court of appeals to weigh in. The court of appeals may have an entirely different interpretation.
These multiple layers and nuances help explain why “Is that legal?” is not always a question susceptible of a simple answer. A lawyer can give their best interpretation of what the law “is,” but one court or another, or an administrator, may come to a very different conclusion.