How Do We Make Law? And Unpacking Other Dense Questions


A better, perhaps more accurate title for this post just might read:

“How do we interpret, institutionalize, theorize, conceptualize, etc. etc. etc. the law?”

I doubt that any, save for steel-nerved, theory nerds, would click on that article. And for good reason: when we– those of us fixated on the words of nation founders, legislators, and influencers– talk about the law, we more often than not do so in complex terms. “Legal theory,” a phrase with the power to strike fear into the heart of generations of students and certified barristers alike, is complicated, messy, abstract, and, to put it bluntly, a bore. Writing ultra-meta content dealing with theory about theories is, unsurprisingly, a snooze-fest.

But, behind all the legal jargon are important questions that everyday people shouldn’t be shut out from considering. To borrow from Parks and Recreation character Ben Wyatt in his fight against tech-giant Gryzzl, “A person should not have to have an advanced law degree to avoid being taken advantage of by a multibillion-dollar company.” The same extends to the law, which governs the life of us all.

The importance of studying law is this: Law is, like it or not, the water we swim in. We often hear stories that can cause us to  lament the adversarial nature of the American legal system. We decry the explosion of litigation, as some call it. But, this flood of suits and memos is only one aspect of the law as an all-consuming force in the lives of most people. From the regulations on water used to brew a morning coffee, to the stop sign that dictates (or, on late days, impedes) traffic flow, to such serious applications as protections extended to employee on the job, the law establishes the perimeter inside of which we all live. I say this not to flatter, or to seem overly romantic about the governing code. Rather, I want to suggests that interpreting laws and examining historical approaches to the law is key to understanding our nation and it’s intellectual, social, and political progress.

In this post series, the question “How do we make law?” may not fully be answered. How we are meant to interpret dense, cumbersome legal text will likely also go unanswered. What I will show you though, are some of the techniques used by influential thinkers and jurists throughout American history. I hope that these will yield a starting point for discussion. I hope, in these next posts, that we will learn how to swim together.

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