When given a set of facts, different people can reach different conclusions. When society demands consistent application of laws, how can individuals know what outcome to expect? Are we to rely only on the whims of a judge or jury? Our idea of common law assuages these concerns. Common law is where the theoretical intent of legislators is applied.
Congress makes laws and courts apply them, right? Well, not so fast. Think of it is as though Congress were to pass a law saying all must dress nicely for church. The question then becomes: What is nicely? A lawyer might ask: What is church?
While each of us may have individual opinions, the answer is given to us when a question has been run through the gauntlet of our judicial system – yes, lawsuits.
In our adversarial system, attorneys for each side advocate the positions of their respective clients. Ultimately, either a judge or a jury then rules, agreeing with one party over another. With each decision, society’s understanding of how the law is defined and applied becomes increasingly clear.
However, not all judges or courts will agree to the same conclusion when given the same facts. When courts rule inconsistently with another court, the question is considered by yet a higher court – appeals. Is the ultimate appellate court the Supreme Court of the United States? Only when it involves questions of federal statutory or constitutional law. Otherwise, the ultimate authority is at the Oklahoma Supreme Court.
This process, which first originates with legislation, then passes through the filters of litigation, judicial determination, and possibly appellate review, eventually refines the answers to questions and becomes defined as common law. This process separates our reasonable expectations of outcomes in our lives from vague hope. It gives us some expectation of predictability of the consequences to our actions.
This is not an inexpensive process, so why pay? Even though most of us seldom have car accidents, each month most pay a car insurance premium. Why? There is an economic value to certainty (or at least in increasing the predictability of an outcome). We ascribe value to having some idea of what limits of exposure or risk we might have. For this, we are willing to pay a premium.