The common law understanding that what judges do is a matter of finding the law is enjoying a welcome return.
If anything illustrates the very real and palpable necessity for jurisdictional limitations in both common and civil law systems, it is in the area of education.
In our discussions of common law versus civil law, education affords some of the most poignant illustrations of how such limits provide a necessary backstop to protect freedom, and how the elimination of such, undermines and destroys liberty in both.
In the case of civil law, the desire for consistent application can be taken too far. This has become tragically evident in both Germany and Sweden where each has turned against homeschooling. Rather than permitting the widest possible choice for parents in the education of their children, these national governments have chosen to compel attendance at certain state approved institutions throughout. This story was recently put forward here by Alex Newman at the New American.
Interestingly, the story goes on to describe the desperate attempts to secure the blessings of educational freedom by various parents who chose to flee to surrounding countries where the right to home school is still protected and, in some cases, even encouraged. Another way to view this story, is as a poignant reminder about the critical necessity of Gibbon’s observation of the European division into various independent states, quoted here before:
A modern tyrant, who should find no resistance either in his own breast or in his people, would soon experience a gentle restraint from the example of his equals, the dread of present censure, the advice of his allies, and the apprehension of his enemies. The object of his displeasure, escaping from the narrow limits of his dominions, would easily obtain, in a happier climate, a secure refuge, a new fortune adequate to his merit, the freedom of complaint…
In the US, on the other hand, the picture is not as nice as we might like to think. Yes, the states still have considerable freedom to choose their systems of education, but those limits remain subject to constant judicial scrutiny and revision, not only from state, but more importantly from the national courts. Prior to some fairly recent decisions, this was not such a pretty picture.
The states must still comply with Supreme Court decisions respecting ill defined concepts of equal protection, both in terms of access and funding. Such cases produced a long history of expensive litigation and inefficient administration with little regard for the liberty of parents. True, more recently federal decisions such as Zelman v. Simmons-Harris have tended to affirm choice in education, but such only exists so long as the Court continues to favor it, and not according to the enumeration of jurisdictions as once understood. Judicial tenure is a a very thin reed on which to secure any freedom. When the balance tips, as eventually it probably will, I suspect we will return to the overlapping mess of arbitrary and endless actions and interferences that existed before.