In common law, societal expectations (eventually) determine legal expectations. The interpretation of laws and the laws themselves change to reflect changing standards in duty of care. For example, the eighteenth century conception of torture of POW’s was much more limited than it is today. More familiarly, municipalities monitor typical traffic flow and adjust the speed limit (higher or lower) based on average or modal speeds. Here is the Nevada department of transportation recently doing just that:
https://www.facebook.com/plugins/video.php?href=https%3A%2F%2Fwww.facebook.com%2FNevadaDOT%2Fvideos%2F1383546958349396%2F&show_text=0&width=560 Like glaciers, the law grows and recedes in the crevices of public life based on people’s behaviour and changing social norms.
At the same time, the final forum for the examination of societal expectations is a court of law. When disputes arise between people, we expect that our most determined, strongly-felt moral judgements (“in the situation, you clearly ought to have done X and your having done”) will also find validation in law.
Yet it often happens that one or another of our firmest expectations are a product of grotesque social conditioning that a judge of the law will find disgusting – shallow or petty expectations of our fellow citizens that common law precedent has long expunged from consideration at law. For example, recently a dude decided that his irritation with his date’s using her phone to text message during their date was grounds for the dude to sue his date. Here is a video brief:
I think this is because (despite widely circulated reporting on salacious lawsuits) there’s generally no mechanism for reintegrating findings at law back into societal expectations. Indeed, to limit their liability, lawyers seem loathe to casually share or volunteer findings of law with the lay public based on the worry that such a digest will be understood as “legal advice”. Daytime reality TV courts do more to emphasize the personality of the judge than the character of the common law. For their part, courtroom dramas are obsessed with murder (their investigation and prosecution); worse, they often reproduce and exacerbate popular misconceptions about the law.
This is a problem, because the lay public needs to be “in touch” with the legal system so that we can gauge whether our most strongly felt societal expectations are plausible to the system of justice we’ve established, which we must ultimately depend upon to resolve disputes.
For now, my only suggested solution to this problem is that we need more people to be court watchers (go in person to watch public trials and hearings at the courts). Or perhaps we need a way of broadcasting trials that respects the parties’ privacy interests.