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AlexanderBernsteinFirstEssay 3 - 06 May 2017 - Main.EbenMoglen
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The Logic of the Law | | | As such, logic becomes of secondary importance. We don’t need good logic so much as we need good judgment. Because there is such a thing as good judgment and there is such a thing as bad judgment, and the difference between them is everything when it isn’t so obvious that two doesn’t equal one. Stare decisis, statutory interpretation, judicial trends, history and tradition, common ethos, constitutional law, structural relationships—they would tell you that there is nothing especially blameworthy about letting an electrical cable hurl a child into a watery grave. All that actually matters is what happens between two neurons in the mind of a judge, and whether that spark conceives the correct conclusion, before it is steeped in the logic and prolixity of the law. | |
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As we saw, the essence of legal realism, that law is what is does, leads to the conclusion that a judicial opinion is a rationalization of results otherwise arrived at. Hence Felix Cohen's concern with the irrelevance of logic, which you have arrived at by another route here. Why only formalism is politically tolerable to your interlocutor isn't clear, perhaps to him, certainly not to us. You're right, naturally, that what we want in judges is good judgment; the question is to what degree good judgment ought to be "reproducible."
So you could tighten much of this draft, devoting yourself less to restating what we have read or discussed in other terms, and driving straight at the issue this draft located for you but did not have sufficient space to explore: is good judgment so individuated that there is no way to explain how it operates that will give us confidence that we are ruled by laws and not by the will of men or women?
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You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. |
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