• Discussing law in English differs in fundamental respects from parallel conversations in French, German, and other Continental languages.

Law

• The particularities of English begin with the word law.

  • Continental legal systems typically use two terms for “law”—one that stresses the written law enacted by the legislature, and a second that emphasizes that the law is a body of principles based on various sources. This distinction is best expressed as the difference between the law as statutory law (the law laid down by the legislature) and the Law as a set of principles that appeal to us by their intrinsic merit.

  • To grasp this distinction, think of the difference between the text of the Constitution of the United States and constitutional law.

• The Constitution is the set of authoritative rules and principles written down within the four corners of a specific document. It is a finite set of words.

• Constitutional law is the body of principles that has evolved and continues to evolve from the written text.

• Criminal law must be understood in the same way. It contains some authoritative words—words written down in codes and statutes and often in leading cases. Yet no one in the Continental tradition would say that the criminal law can be reduced to the criminal code.

Policy

• The concept of policy is a spin-off from the notion of politics (both deriving from the same Greek root—polis). The difference is that “policy” and “policies” are neutral and clean. “Politics” is partisan and dirty.

• There are entire institutions in the United States devoted to the study of “public policy” on the apparent assumption that this subject is an objective body of knowledge. This refinement of meaning and connotation is a remark- able feature of current English legal usage.

• In many Continental languages there is no clear distinction between policies and politics.

  • Policies represent instrumental goals, that is, social interests that the law might aim to maximize. These interests would include deterrence of crime, promoting security of expectations, distributing risks, and promoting democratic institutions.

  • Principles state the requirements of justice. For example: No person should profit from his own wrong. No person should be a judge in his own case. No innocent person should suffer at the hands of the state.

Due Process

• An alternative way to express the idea of Right has emerged in the American constitutional concept of due process.

  • The original use of this phrase in the Fifth Amendment (ratified in 1791) said simply that “no person shall be deprived of life, liberty, or property without due process of law.” This was understood at the time to restrict only the actions of the federal government.

  • The Fourteenth Amendment (1868) applied the same principle to the states: “no state shall deprive any person of life, liberty, or property without due process of law.”

  • As originally used, the notion of “due process” carries procedural overtones. It seems to refer to the procedure that is fair and necessary to protect life, liberty, and property.

  • However, over time the concept has acquired a substantive content reflecting basic principles of human rights.

  • Justice Benjamin Cardozo defined substantive due process as the “principles of or- dered liberty.”

• Immanuel Kant wrote that liberty—or freedom—is the central value protected by the concept of Right and the rule of law.

Fairness

• Though the U.S. Constitution does not use the terms fair or fairness, the requirement of a fair trial has become a standard element of due process under the Four- teenth Amendment.

• Article 6 of the European Convention of Human Rights provides that, in all cases, “Everyone is entitled to a fair and public hearing.”

• The Canadian Charter of Rights and Freedoms recognizes in Article 11(d) that everyone charged with a crime is presumed innocent until proven guilty “in a fair and public hearing.”

• The “presumption of innocence” is often justified by saying that it is better to let ten guilty defendants go free than to convict one innocent. If justice requires the punishment of the guilty, then this concept of fairness, skewed as it is to the interests of the defendant, permits some injustice to occur.

• Victims demand justice. Defendants want fairness.

• The particular attachment of Anglo-American legal culture to the concept of “fairness” derives from the emphasis in the common law on procedural regularity as a value in itself, a value worth respecting apart from justice in the individual case.

Reasonableness

• The notion of reasonableness plays a critical role in defining the contemporary Anglo-American legal mind. English-speaking lawyers refer routinely to reasonable time, reasonable care, reasonable mistake, reasonable risk, reasonable doubt, and reasonable force.

  • Every time the term is used, the implicit reference is to the behavior of a “reasonable person under the circumstances.” This hypothetical character summons us to recognize and apply a community standard for judging individual behavior. Those who fail to meet the standard of the reasonable person are at fault and deserve to be blamed for their “unreasonableness” of belief or behavior.

• International negotiation in English will demand that lawyers start thinking in the idiom of reasonableness.