Swimming in transcendental nonsense

-- By AbbyCoster - 15 Feb 2012

Felix Cohen’s assertion that “legal concepts are supernatural entities which do not have a verifiable existence except to the eyes of faith,” makes more sense than anything else I’ve read thus far in law school. That may be because much of what I have read makes no sense at all. Most legal doctrine doesn’t square with common sense, with my innate hunches, because, like Cohen says, the law is neither based in morality nor logic.

I’m not a saint, but I consider myself a ethically principled person. I don’t steal, I don’t cheat, I don’t hurt other people. I also think I am logical-a left-brained, sudoku-addicted finance major who actually liked studying for the LSAT logic games. I applied to law school to learn and ultimately enter a field grounded in logical decision-making and the pursuit of righteousness. Yet, so many classes have made me uneasy, in the sense that the doctrines being taught are grounded in neither.

Good Samaritan Law is void of morality

Each course has taught me doctrines I completely disagree with on moral grounds, yet the decisions crafting these doctrines are rife with justifications for them; like Cohen says, they are only based in “the eyes of faith.”

Both civil law and criminal law excuse bystanders who fail to help someone in need. for example, in Pope v. State, a woman took a mother and child into her house, and witnessed the mother beat her newborn to death without interfering. She was acquitted of all criminal charges. The court based its reasoning on the fact that Pope did not fall neatly into one of its four categories of people responsible for another party. This legal rule is clearly one, in line with Cohen’s proposition, that isn’t based on logic or morality. It seems highly logical, and undoubtedly moral, for someone to assist an innocent baby from being battered, whether by taking the child, restraining the mother, or, to avoid harm to self, calling the police.

Courts base the “no duty to rescue” idea on the basis that sometimes, a person may endanger him or herself by attempting to save another. Under this rationale, the rule concededly makes sense in some situations; it seems ludicrous to hold a person liable for not jumping in front of a bullet or moving car for another, regardless of their relationship to that person. However, should that same person be free from duty while watching a child drown in a pool as they leisurely stroll past? The court fashions a “one-size-fits-all” rule, while different scenarios demand a case-by-case analysis. The jurisprudence of good samaritan law is abhorrent in that it places paramount importance on judicial administration, while being completely divorced from morality.

Many civil law doctrines have no rational basis

In civil proceedings there are also doctrines devoid of ethical or logical considerations. The modern conception of personal jurisdiction is one of these “supernatural entities,” based on nothing but judge discretion. In Goodyear v. Brown, for example, two boys were killed in an automobile accident in Paris. Their parents, citizens of North Carolina, were not allowed to file suit there based on the ephemeral notion of “minimum contacts.” Goodyear, a multi-billion dollar corporation, has the means and financial ability to send lawyers anywhere to try a case; a trial in North Carolina would hardly burden the company. Meanwhile, these parents, reeling from the death of their sons, cannot bring suit where they live. Other jurisdiction cases mandate that a case can be tried where the injury occurred. Just because the boys were killed in Paris, can’t the injury have occurred in their home state to a degree? Is that not where their family and friends mourn their death? In shaping the legal concept of personal jurisdiction, the court has drawn strict lines which make sense only in certain cases.

Good samaritan law and personal jurisdiction are just two of the doctrines which, applied in some scenarios, are not only unjust, but reprehensible. In class Eben brought up efficient breach, and how it ignores promise-keeping, a socially valuable trait. The takings clause, which mandates a government need only to compensate a victim when there is a full diminution in value is yet another example. According to current takings law, reducing the value of a home from $1 million to $100 does not require compensation under the fifth amendment; the property must be rendered entirely useless. This rule makes no sense considering basic supply-and-demand market economics, nor is it ethical. Moreover, it leaves the court as ultimate arbiters of the value of property, when certainly market valuation is out of their area of expertise, and, in itself, an assessment rife with mere preponderance.

Don't Start Believin'

Aristotle said “the law is reason free from passion.” The amoral character of legal principles showcases the truth of this statement. Most, if not all, doctrines I have learned in law school consist of rules that are too rigid. Granted, they do make judicial proceedings easier and faster. However, they fail to recognize people and situations on an individual basis. The social outcomes of decisions are not considered, and instead these decisions are based on transient principles. We need to stop being the “eyes of faith” that pay homage to these rules. Without our faith, these concepts will lose relevance, and hopefully morality will find its way into the law.

If legal concepts continue to be so removed from ethical and reasonable considerations, the law will definitely continue to be a weak form of social control. With the law in its current formalistic state, maybe that is not such a bad thing.

Words: 956

• #Set ALLOWTOPICVIEW = TWikiAdminGroup, AbbyCoster
• #Set DENYTOPICVIEW = TWikiGuest

Note: TWiki has strict formatting rules for preference declarations. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of these lines. If you wish to give access to any other users simply add them to the comma separated ALLOWTOPICVIEW list.