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TheodoreSmith-FirstPaper 10 - 14 Feb 2008 - Main.TheodoreSmith
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Paper Title | | | (Section Under Construction) | |
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< | (PARAGRAPH ABOUT REASON) | | | By placing the responsibility for legal outcomes on the individual legal actor, the practice of law becomes a personal search for a morally acceptable result. Although moral courage must provide the impetus for this investigation, courage alone cannot provide the means. The obligation to produce an acceptable result brings with it an obligation to bring to bear the full weight of human intellect and understanding. Although this does not commit the actor to any particular analytical technique, a strong case could be made for the necessity of what Frank refers to as the "scientific spirit." (Frank, Legal Science and Legal Engineering, p.219.) This idea simply encompasses the __ of modern scientific and rational thought: an open mind, a skepticism to assumption and theory, and a _. Science and reason is thus able to rejoin the legal process, not as a means of justification or moral crutch, but in its proper place as a tool of the intellect. | |
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< | Although the individual decision-maker thus forms the basis of the legal system, her effort alone cannot be the _ of a successful legal system. Law is a social effort, and must exist as a collaborative force. A successful truth decider and adjudicator can only be successful within a community of her peers. Constant collaboration and monitoring is not only necessary to maintain a flexible and effective legal process, but is essential to maintain an individual sense of morality and responsibility. (PARAGRAPH ABOUT COLLABERATION AND MONITORING)
• Our truth deciders must have the responsibility to monitor one another to ensure that they are taking this duty with the seriousness required.
This becomes particularly important ... without support and _ from the legal community, it balanced on a razor's edge. The constant discussion and reexamination of assumptions and _ is necessary for the stability of a system putting such a moral weight on the individualv | >
> | Although the individual decision-maker thus creates the basis of the legal system, her effort alone cannot form the extent of a successful legal system. Law is a social exercise, and must exist as a collaborative effort; a successful truth decider and adjudicator can only succeed within a community of her peers. Constant collaboration and monitoring is not only necessary to produce a flexible and effective legal process, but is essential to maintain an individual sense of morality and responsibility. The very subjectivity of methods and goals that demands a focus on the legal actor requires that decisions be made within the context of a larger legal network. Feedback from peers can shape and develop the individuals legal reasoning, but also reinforce the sense of responsibility and duty with which the individual must approach her profession. A smart the easier it becomes to justify ones actions, creating excuses rather than taking up the moral burden impressing upon one another the awesome responsibility that they are | | | (PARAGRAPH ABOUT LEGAL RULES) | |
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< | Just as a focus on the role of the individual does not preclude methods of rational and scientific thought, the _ does not supercede a role for legal rules. The notion of developing individuals rather than refining systems takes some of our intellectual focus off of legal rules, however | >
> | A focus on the role of the individual does not preclude the use of legal rules any more than it precludes rational and scientific thought. The failure of _ was not a failure of the rules themselves, but simply a failure of _ to justify themselves
Likewise the focus on the rationality and maturity of the truth decider does not eliminate the need for rules.
elimination of our system does not supercede a role for legal rules. The notion of developing individuals rather than refining systems takes some of our intellectual focus off of legal rules, however | | | * Placing our focus on the rationality and maturity of the truth decider does not, however, eliminate the need for rules.
While the justification and responsibility for the judicial decision must ultimately rest with the individual, rules can serve other functions than creating the illusion of objectivity.
* Rules serve some sort of normative function, both in setting positive standards for ethical or moral conduct, and making clear any community proscriptions on conduct. |
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