"Every society's laws
employ certain symbols and projects certain visions about
the people and the society's aspirations"
(A World of Ideas, page 470)

This theme, Laws Tell Stories, is the first of two themes ruminated by Mary Ann Glendon and Bill Moyers in the PBS series A World of Ideas. This part of their discussion shows what our laws say about American society - who we are, where we came from, where we are going, and what we value.

Intertwined with this conversation is a second theme discussing specific differences between America and Europe on the key issues of abortion and divorce. More of that theme is found at Family Law in America and Europe (circa 1988).

Laws are the way a society makes sense of things. They help you to understand what you can't always see. The laws tell us about what that society values. In the context of the theme Laws Tell Stories, the focus of their conversation is on the legal system generally and how that system affects society's stories.

There are three major points to this theme:

  1. Dependence Upon Laws Not on Common Culture
  2. Should Laws Reflect or Define Reality?
  3. Who Writes the Story?

I. Dependence Upon Laws Not on Common Culture

America is a very diverse society with constituents from myriad of cultures and histories across the world. As a whole, American do not have much in common - religion, traditions, or history. The latter in the sense of our ancestors arriving here during different phases of the formation of the American Republic. Our diversity leads us to depend upon the common thread of the law.

Professor Glendon believes the problem in American society is an over-dependence upon the law which can not fully reflect the rich mythology of society.

For example, there is greater depth and complexity to the way Americans think about abortion and divorce than is communicated in our legal system. Details of the depth on these issues are in Family Law in America and Europe (circa 1988).

Mary Ann Glendon raises two questions our society should examine:

  1. Can the law bear all this weight and responsibility we have placed on it? and
  2. Is it desirable for the law to be the value-carrier in our society?

Her answer is no. Professor Glendon feels there is a lack of sufficient grounding or connection between the American legal system and the diverse customs and manners that comprise our mythos. She points out two philosophers, Montesquieu and Tocqueville, who thought that if law wasn't grounded in the mores of a society, then there is not much hope for that society.

II. Should Laws Reflect or Define Reality?

The purpose of law does go beyond simple definition of a society. It also promotes a vision - a way of life to aspire to.

For example, the U.S. Supreme Court shows it is not willing to talk about the different values that are in tension with each other on the issue of abortion. It has "thrown its weight behind" (pg 474) the simple characterization of abortion as individual privacy and freedom of choice for a women. By stating it is a constitutional issue they have cut off further refinement and debate in the legislatures.

In the context of this point, the U.S. Supreme Court has said individual freedom takes precedence over other issues of the definition of life, etc. The Court has also said that a fetus is not a person. A particularly important point to notice here is the definition of person. In the context of the law, a lawyer knows that the definition of a person means an entity that can enter into contracts, for example, and has other legal rights and remedies. A corporation is considered to be a "person" in the context of the law.

The problem arises when the layperson reads in the newspaper that the U.S. Supreme Court has ruled a fetus in not a person. The layperson interprets that word in the context of everyday usage. So we have a misunderstanding of definitions.

On the other hand, the Court is communicating a message about the value of human life - specifically that in the case of a fetus. It says any rights the fetus may have are subordinate to the rights of individual freedom granted to a woman. Professor Glendon thinks that the Court is writing a story that does not reflect the complex issues most American want to say about abortion.

This is not the vision European societies define for themselves on the abortion issue. Again, details of a comparison between America and Europe are contained in Family Law in America and Europe (circa 1988).

III. Who Writes the Story?

Regardless of which side of the issue of abortion you support, Roe v. Wade raises other legal problems. The U.S. Supreme Court exhibits hubris when it rules by fiat. It is saying that it knows better than the elective branch what is good for society. This is a question of who governs? Who gets to make important decisions for society - is it the courts or the legislature?

The court's role is to interpret laws created by the legislative branch. However, in Roe v Wade the U.S. Supreme Court ruled out further debate and legislation by ruling it a constitutional right to freedom of choice. It stopped the process of education and persuasion and bargaining that occurs in the legislative process. In short, it stopped the "storytelling" process of the legislature.


On a parenthetical note - the U.S. Supreme Court appears to have circumvented the elective process defined by Florida State law and Federal law when it cut short the vote recounts in mid-December, 2000. It essentially ruled by fiat for George W. Bush. One telling characteristic is the division of the nine justices down political party lines between the ruling and the dissenting opinions. Five were appointed by conservative, Republican administrations and four by liberal, Democratic administrations.

One reason why the abortion debate rages so fiercely is that the U.S. Supreme Court has ruled one side completely our of the process. By ruling in the language of rights they said "go home" to one side until there is a constitutional amendment - or until the Court rules differently on another case.

Contrast this with the European Story. Generally, they are as bitterly divided as America on the issue of abortion, but they have made compromises in such a way that ensures future negotiation. Legislation can change; the losing side can return later to try again.

Mary Ann Glendon thinks the passions would be greatly reduced if the discussions could continue in the legislatures. It could reduce the violence that sporadically erupts when one side has no voice.

America needs to develop a common story between the pro-life and the pro-choice groups. It is unfortunate that most Americans and their political candidates accept the idea of a drastic either/or choice on this issue. They believe there can not be a common story.

Summary

The main ideas to consider from this discussion are:

  1. What stories do you hear told in the law?
  2. How is America's Story different from that of other cultures?
  3. Who gets to compose the stories?
  4. Does America depend too much on its laws to describe society's myths?

Professor Glendon's books on Family and Comparative Law are listed on Mary Ann Glendon.


Source:

  • Bill Moyers A World of Ideas: Conversations with Thoughtful Men and Women About American Life Today and the Ideas Shaping Our Future, edited by Betty Sue Flowers, Doubleday, New York, 1989, pages 470-483. ISBN 0-385-26346-5 (paper)
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