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Law Ought Not be Centrally Planned

Here’s a letter that I sent recently to the Baltimore Sun:

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.

Donald J. Boudreaux