IT’S A GRAY AREA:

On my second day of retirement, I went to my son’s high school to speak to his government class about laws and our judicial system in general. And I wanted to share some of those thoughts with you.

If you think about it, there are many ways to make decisions and resolve disputes other than to take them to courts of law as we know them.

Throughout the history of the world, many if not most of the critically important disputes were resolved unilaterally by individual people such as monarchs, chieftains, or family patriarchs. Disputes have also been decided by wars, gunfights, brawls, duels, and other forms of violence; by chance, such as the flip of a coin, drawing of lots, cutting of cards, or roll of the dice; or by hiring a surrogate so that whoever’s knights or thugs or “boys from the ranch� joust or fight successfully against their opponents win the dispute.

Of course, leaving the settlement of disputes up to the leader, luck, or local hero of the day has resulted in many disputes being resolved in an extremely arbitrary manner. But at least those approaches provided the benefit of deciding the issues quickly, decisively, and, in most cases, finally. Still, it is hard to argue that “justice for all� was procured very often.

Another thing that most people do not focus upon is the difficulty of writing laws that address human conduct. Today’s life is often complicated and complex. In fact sometimes life simply is not always what it seems, as witnessed by the fact that once Charlie Chaplin entered a “Charlie Chaplin Look-a-like� contest — and came in third. So addressing and governing human conduct and obtaining reasonable results from our laws are not easily done.

For example, consider crafting a law about one of the more straightforward issues in our society: our system of traffic control signal lights. So I ask you to stop reading this right now, and try yourself to draft such a law — and have your children join you. It will be fun, and instructive.

Such a law would be simple, right? A red light means stop, and a green light means go.

But wait. What about a blinking red light? That would mean that a law-abiding driver could never leave the intersection! OK, so we will make a modification for blinking red lights to allow the driver to progress when it is safe after making a complete stop.

But wait again, what about emergency vehicles? If you are in a life-threatening situation and are being taken to the hospital in an ambulance, will you want the driver to wait patiently at every red light for it to change to green? Or for every fire truck on the way to a fire? Or the police on their way to a robbery in progress? OK, so we must again modify our laws to make allowances for emergency vehicles in emergency situations.

But only for emergency vehicles? How about a husband driving his wife to the hospital when she is delivering her baby unexpectedly right at that moment, or other emergency situations? Or what about the exception in some states, including California, in which motorists are permitted to turn right on a red light after they have come to a complete stop and it is safe to proceed? Woody Allen memorialized this exception in one of his movies by calling it one of California’s only contributions to modern society.

So once again it is hard to foresee every situation in which a modification to the general rule is appropriate and desired. In other words and as we said before, life can be complicated. That is actually one reason why most of the propositions on our ballots are cumbersome and often ill-conceived. Why? Because they have not been subject to much screening or review in which more appropriate and effective language could be hammered out by people who are trained and experienced in this important area. So when problems with these shortsighted propositions are discovered, it is usually left to the courts to attempt to reach a resolution that both makes sense and is constitutional — much to the consternation of many people, particularly if the subject is emotional!

It is also critically important that the rules not be changed without appropriate notice to everyone concerned. Consider, for example, a game of basketball in which the referees decide that since the underdog team had tried so hard and almost caught up to the favored team, they would extend the game by an extra three minutes to give the underdog more of a chance. Or consider a football game in which the referees decide not to enforce the rules so strictly against the smaller and slower team in an effort to make the game more equal. Things like this can rightfully bring disdain for a system and therefore decrease its effectiveness — in sports events, or in any other activity of life. Instead the system must be — and must be seen to be — fair and neutral for all in order to be effective.

So beside fair and well-conceived laws, we need a system of dispute resolution that people will be confident in and will also get the job done. This is the system that keeps us safe, enforces our rights against excessive government intrusion into our lives, and enforces our contracts. Without such a system, civilized and organized life would be far less possible.

We are blessed to have such a system in place, one that applies neutral judicial rules and procedures that are administered by impartial and independent judges and juries. This system has taken a long time to develop. But as a direct result of this development, the Rule of Law has become the foundation of our modern social order and has materially lessened the rule of force and despotic whim — for the good of us all! I hope you join me in appreciating it.

JAMES P. GRAY is a retired judge of the Orange County Superior Court, the author of Wearing the Robe — the Art and Responsibilities of Judging in Today’s Courts (Square One Press, 2009), and can be contacted at [email protected] or at his website at www.JudgeJimGray.com.