Law Ought Not be Centrally Planned

Diana Schaub rightly argues that no judge should allow empathy for
parties in a courtroom to dilute his or her commitment to apply the law
dispassionately ("Why empathy is the enemy of justice," June 14).  But
the need for judicial impartiality does not imply that judges should
avoid engaging with the real-world contexts and details that surround
every legal dispute.

In a free society, law isn't simply, or even chiefly, a set
of explicit commands handed down from a sovereign (be it a monarch or a
democratically elected legislature).  A great deal of law – indeed, most law – emerges
undesigned from the daily practices of ordinary people interacting
with, and sometimes bumping into, each other.  People on their own
often find ways to minimize these conflicts, and these ways become
embedded in people's expectations.  These expectations, in turn, become
unwritten law – law that good judges find and enforce impartially.

Sincerely,
Donald J. Boudreaux