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ASSIGNMENT: LAW AS A “LIVING BODY”

TANESHA BRENNO

11-21-10

SARA ROGERS
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The theory of law as a living body speculates and postulates that the living body of law

carries many of the same characteristics that an organism may contain. This theory basically

states that, like an organism, the law should adapt its senses in order to fit into environmental

circumstances that it may be involved with. The theory of law as a living body simply suggests

that laws fit into the environment in a way that is somewhat similar to living beings. Today’s

laws are changing constantly in one way or another; they may bend for one particular case and

then follow with the upmost scrutiny in another. I believe that the whole basis of the “living

body” theory is the difference between laws in action and laws on the books. The law on the

books basically refers to the laws in which are written and law in action are laws that are actively

being used by a judge or someone of authority within a courtroom. The objectivity of law is how

and where the laws are made and carried out. In the United States, all laws are created by

legislators then judges and sometimes jury carry them out.

Due process, is as appears in the 5th Amendment of the Bill of Rights, which guarantees

that no person should be denied of life, liberty, or property without the due process of law

(Schulhofer,2003). This is very important to the notion of civil rights as it was again repeated in

the 14th Amendment, which also guarantees due process of law from the state government, as we

as Federal government (Schulhofer,2003). Due process in a courtroom is also known to include

the appropriate mythology of interrogation, arrest, search, and other elements of prosecution. I

believe the main reason for due process is t o bring a more objective and fair relationship

between the law enforcement in a community and a community itself. Unfortunately, there are

some disadvantages as well. For instance, a known criminal being prosecuted can easily and

successfully argue that their rights were violated somehow along the way. The exclusionary rule

omits any and all charges if in fact there is any evidence of such violations. During and after the
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attacks on September 11th, the due process seemed a little contracted. The law enforcement

officers are more likely to stretch their legs in the interrogations, arrests, and custody to fit more

what they feel is more appropriate. During the Civil War, President Abraham Lincoln illegally

suspended the Writ of Habeas Corpus. Another example was configured by Franklin D.

Roosevelt during WWII, when he detained and confiscated property of tens of thousands of

citizens only because of the simple fact that their biological nations are different. Law as a living

body is classified by just that, the ability to do such things during “national emergencies”

(Schulhofer, 2003). The ability to make adjustments as needed on as-need basis is one of the

many characteristics of a living body.

The rights of the accused include; the right to counsel during interrogation, protection

from cruel and unusual punishment, trial by jury, self-incrimination, the writ of Habeas Corpus,

double-jeopardy, and search warrants. There are negatives as well; one of them is the fact that in

most violent crime cases, children/victims are required to testify in the presence of the accused in

court at some point. By doing this, the trauma that the victims and victim’s family have endured

is found to be prolonged even more. Another thing that might happen is all charges could be

thrown out because of what they call “fruit of a poisonous tree” (Silver, 2010). This means that

all or most of the evidence that was collected was done so without adherence to the legal

standards of criminal means, or illegal search and seizures. In so many cases, the accused is freed

and able to walk the streets, knowing this leaves law enforcement officials facing stressful

decisions when making arrests or just collecting evidence. The Federal Wire Tap Act and the

USA Patriot Act were in place following September 11th and both have amended due process and

the protection of the accused by extending leniency in search in seizure laws, protecting citizens

from any type of terrorist acts.

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References

Schulhofer, S. (2003) "At war with liberty: post-9-11, due process and security have taken a beating."

The American Prospect March 1st, 2003.

Person communication with the honorable Judge Silver.