Law as a living body

“No person . . . shall be deprived of life, liberty, or property without due process of law.”(The Courts in Our Criminal Justice System, 2003). This is what the Fifth Amendment states about the citizens ‘rights of the United States. However, there is an evident difference between the law on the books and the “law in action”. It is also important to consider how State and Federal courts interpret and apply the law. Taking into account factors such as technology developments, and society changes, the law must adapt to these circumstances.

Law on books is generally referred as written law. These written laws are used by prosecutors, district attorneys, and judges in court. Law on books is created to protect citizens’ rights. In theory, applicable laws should influence a judge’s or a jury’s decision to process a case. Nevertheless, extra-legal factors often influence a final decision. Such factors can be rate of violation, availability of enforcement resources, etc. An example of this phenomenon is the enforcement of mandatory minimum punishments for certain drug offenders. (Decker, 2003).  A probable cause to why laws are interpreted and sometimes overlooked by law enforcement officers is the overcrowded jails and prisons. If everybody had to be punished for every single infraction, almost all citizens would be in jail.

Objectivity of law is defined in the words of Benjamin N. Cardozo” There is in each of us a stream of tendency, whether you choose to call it philosophy or not, which gives coherence and direction to thought and action. Judges cannot escape that current any more than other mortals. All their lives, forces which they do not recognize and cannot name, have been tugging at them—inherited instincts, traditional beliefs, acquired convictions; and the resultant is an outlook on life, a conception of social needs..” (The Courts in Our Criminal Justice System, 2003).In other words, judges, as well as jury members, interpret the law while trying to be as objective as possible.

Law as a living body is compared to a living entity because it is constantly changing by the legislative, judicial, or executive branches. Law as a living body  also means the following to me: North American lawmakers keeping up with new crimes and change in number population. Cases presenting legal issues in different jurisdictions, or the emergence of new crimes such as cybercrimes, force lawmakers to create new laws.

In addition to the constant changing laws, the United States has one of the most important functions of the criminal justice system: the Due Process of Law. According to the Blackwell Dictionary, “Although the term is not used elsewhere the principle is a familiar feature of most legal systems. Chapter 39 of Magna Carta, 1215, declared that no free man could be imprisoned or suffer deprivation of property except after trial by peers or by the law of the land. Legal judgments later broadened these terms to mean trial by jury and due process of law”. The Due Process can be considered in two forms: procedural due process, which consists in the government following non-prejudicial arrest and trial procedures; in civil matters, Procedural due process, protects citizens from government’s unlawful procedures. Due process intends to give the opportunity to the suspect to be heard and to present objections to the proposed action.

Despite the benefits the due process clause brings to citizens, there are a few drawbacks. The most important among these, is the ability of a suspect confessing guilty, to avoid punishment if he or she can successfully prove that due process is violated. Also, the exclusionary rule serve as a protection from using any evidence found while violating the due process.

Although everybody has a right for a fair trial, the due process rights for immigrants is a controversial issue. In 1996 Congress passed laws that allowed the government to detain or deport or deport noncitizens without trial, and what kind of evidence was used against the individuals. Years later, laws began to change toward constitutional protection for immigrants. “In 1999 the government sought to deport two Palestinians who were illegal immigrants accused of having ties to terrorism. Courts overturned the government's decision because the evidence against the two was not made public. However, the September 11, 2001, terrorist attacks on New York City and Washington, D.C., may cause immigration judges to place concern for national security above that of due process protection for noncitizens.” (Macmillian Social  Science Library, 2003).

The rights of the accused depend on the U.S. Constitution; furthermore gives everybody living in the United States the basic rights upon life, liberty, and justice. The rights of the accused embrace the belief of innocent until proven guilty, legal representation regardless of economic situation, trial by jury, an opportunity to present evidence, and the right to get witnesses. The positive aspect about these rights is that an ordinary innocent citizen is protected from the government and unfair prosecution.  To the contrary, the negative aspect is that depending on evidence, a guilty person can be set free for lack of evidence.

After the September 11^th attacks, the USA Patriot Act was signed by President George Bush on October 26, 2001. With this new law, the government can take any measures to investigate by listening to phone calls, seizure without a warrant, if the individual is believed to be involved in acts of terrorism. With the creation of the USA Patriot Act, the living body of the law has re-shaped again to allow government to protect national security.

Law as a living body is an essential function of the United States; it protects innocent citizens as well as sentencing and punishing the criminals, as it changes itself overtime. Additionally, the due process of law was created to protect citizens ‘life, liberty, and property from the government and the state. Ultimately, the law as a living body allows the government to create or change such laws, putting the country’s security above anything else.

Law as a living body

References

·         "Due Process." Current Issues: Macmillian Social Science Library. New York: Macmillan Reference USA, 2003. Gale Opposing Viewpoints In Context. Web. 5 Jan. 2011.

·         Decker, J. (2003) "National Security Law in the Post-9-11 World" Denver Journal of International Law and Policy September 22^nd, 2003.

·         Due Process of Law (1999). In The Blackwell Dictionary of Political Science. Retrieved from http://www.credoreference.com/entry/bkpolsci/due_process_of_law

·         Meyer, J. F., & Grant, D. R. (2003). The Courts in Our Criminal Justice System. Retrieved from Axia College of University of Phoenix.