Law is a system of rules a society sets to maintain order and protect harm to its people and their property. The systems of law are ancient and are enforced by the police, supported by the court and prison systems. Laws are written by the sovereign, who is an individual or group, who makes legislations (such as judges). In Canada these rules must not go against the Charter of Rights and Freedoms, of which protects the rights of Canadian citizens.
If a judge depicts what is law, then how does the judge decide and define a law? Is law based on a moral principal, psychological factors, or social constructs? It all depends on who you ask as it is a matter of opinion.
Laws are constructed and executed for the betterment of society. A society will have laws in place to maintain order and is known to all to instill a trust that human behavior is predictable, as long as the laws are followed.
When asked if law is formed to preserve the status quo, I entirely neither agree nor disagree. My understanding of status quo is to keep things the way they are, therefore, stating that Law should be consistent and not change. The problem with this is society is constantly changing and the status quo would then be challenged. Laws need to be flexible to accommodate the changes within societies.
As easy as the positivists view may be to take a strong stance and conclude to every case that the “law is law”, it does not fit reality. If everyone held the positivist view there would be no one to keep society in check.
If you use a pragmatic lens to view laws, how they are put in place and reinforced, it enables you to determine the practical consequences. What stemmed from this mind set is the realist movement and sociological jurisprudence which focuses on how form their decisions. This approach looks at law in a new way relying on social science approaches. One of the founders of this new approach is a Supreme Court judge from the United States, Wendell Holmes.
As do most judges, Holmes concluded his decisions to what outcomes would better the advancement of society. He is famous for his case titled Buck v. Bell. The basis of the case was that a “feeble minded” 18 year old women, the daughter of another feeble minded women and a mother of a feeble minded child, all of whom were institutionalized. Holmes announced the verdict that it was in the betterment of society if she was sterilized. And he furthered his verdict to announce that all feeble minded people should be sexuality sterilized since heredity plays a big part in feeble mindedness. At this time he was considered a progressive thinker. He truly believe that if we could use the theory of eugenics that we could filter out the insane, criminals and feebleminded. This in turn would help solve many of society’s problems and help our species advance. When you look at his perspective it makes sense to try to eliminate social problems, however, at whose expense. The supreme court of Canada challenged this perspective and deemed it unconstitutional and did not stand up against the Charter of rights and freedoms.
The case of Buck v. Bell is an example of how judges cannot make decisions which preserve the status quo. If we applied that ruling to every feeble minded person there would be uproar as there was in Canada when a mother wanted her feeble minded daughter sexually sterilized. Laws are put in place as a guideline for society to follow. Judges base their decisions on a case by case basis and use past case law to back their choices. For the sake of a criminal breaking the law there needs to be a form of status quo maintained. With that being said we cannot expect that laws will always be the same since advancement in technology and the understanding of our own species advances our society and requires changes in how society is run. Laws must be flexible to work with our forever changing societies.