Changing Legal Norms and the Individual Changing

Changing Legal Norms and the Individual

CHANGING LEGAL NORMS AND THE POSITION

OF THE INDIVIDUAL WITHIN MODERN SOCIETY

Many legal scholars have observed that the law does not actually define what person may do or not do; rather, it describes what remedies and penalties flow as consequences of one's behavior (1). In matters of civil law, contracts do not prevent one from acting in violation of explicit agreements, they merely prescribe remedies usually monetary) that the courts may enforce against one for breaching a contract and compensation for parties wronged by a breach. Likewise, in the realm of criminal law, statutes do not prevent any criminal acts or behavior; they merely define what monetary penalties or potential terms of incarceration result from violating criminal statutes (2).

Nevertheless, the vast majority of people in society desire do choose to honor their civil contractual obligations, since the consequences of failing to do so are likely to be more expensive than fulfilling their commitments. Similarly, whether or not also as a function of moral conscience, most people also refrain from serious transgressions of penal law, simply because the consequences of criminal prosecution are quite effective as a deterrent.

The Law itself is a constantly evolving creature, which may, over time, undergo very profound changes and even complete reversals of public policy.

Therefore, in many respects, the relative position of the individual within society also changes in accordance with statutory definitions of his rights and obligations under the laws in effect at any particular time. Likewise, laws vary significantly from place

1. Richard Taylor, Freedom, Anarchy and the Law (Buffalo: Prometheus, 1982) 85

2. ibid., 86 to place because, unless usurped by federal jurisdiction, individual states maintain significantly different legal standards and requirements applicable within their borders making "legality" and "illegality" strictly a matter dependent on location (3).

Criminal Law:

Perhaps no better example exists of the degree to which criminal laws and their evolution affect the everyday lives of ordinary people than the American experience with Alcohol Prohibition early in the twentieth century. In 1920, the Eighteenth Amendment outlawed the manufacture, sale, possession and consumption of alcoholic beverages. Millions of Americans whose consumption of alcohol had been perfectly legal prior to its enactment became instant criminals when the amendment passed into national law because they refused to comply with the laws of Prohibition (4).

Vast criminal enterprises grew into national prominence almost exclusively by virtue of the tremendous profits inherent in satisfying the national thirst for alcohol that persisted, the law of the land notwithstanding. Thirteen years later, the very same criminal conduct instantly became completely legal when the Prohibition laws were all repealed by the Twenty-First Amendment in 1933. In the meantime, hundreds of Americans were affected in the most profound way possible, dying in the wars between rival gangs of outlaw enterprises. Even seventy years later, modern

American society still reflects some of the vestigial remains of Prohibition, most notably in the continued existence of a criminal syndicate that has since branched out into other (sometimes "legitimate") business ventures seeded by the profits of alcohol

3. Max Lerner. America as a Civilization (New York: Simon & Schuster, 1957) 438

4. ibid., 662 sales during Prohibition. Even NASCAR, the nations premier spectator sport, owes its origin very directly to the "moonshiners" and "rum-runners" who flourished in connection with circumventing the laws of Prohibition. According to many authorities on political history, John F. Kennedy, who was this nations' most charismatic president to date, would never have risen to political prominence but for the financial successes of his father, who made his fortune in the illegal sale of alcohol in the 1920's (5).

Civil Law:

Civil laws encompass so many different areas of modern life that it is difficult to isolate one specific area of Contract Law or Tort Law or Administrative Law or Employment Law that illustrates the degree to which the position of the individual changes with its recent evolution in the manner that Prohibition so clearly illustrates that principle in the realm of Criminal Law.

A survey of changes in civil laws would include landmark Contracts cases such as Hadley v. Baxendale, which, in 1854, first articulated notions to which we still adhere today of what damages are recoverable for circumstances that are fairly "in contemplation of the parties" at the time of contract and what damages are not fairly compensable (6). Similar changes in Contract Law affecting the individual in society include the myriad reinterpretation of legal construction, statutory interpretation, and relative burdens of proof, which evolve in continuous fashion as cases featuring those issues are decided in state and federal courts hearing them.

5. Max Lerner. America as a Civilization (New York: Simon & Schuster, 1957)

6. Grant Gilmore. The Death of Contract (Ohio: OSU Press, 1974)

Tort Law has been completely reshaped in the last hundred years, to the extent that legal liability for negligence has affected the practice of modern medicine as much (or more than) practically any medical advance, except perhaps the introduction of the germ theory of disease shortly after the American Civil War and the invention of antibiotics, shortly before the Second World War. The current shortage of physicians choosing to specialize in areas of practice such as Obstetrics and Gynecology is directly a function of the legal position of doctors in a changing legal