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TheodoreSmith-FirstPaper 11 - 14 Feb 2008 - Main.TheodoreSmith
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Paper Title
-- By TheodoreSmith - 09 Feb 2008 | |
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> | WORDCOUNT: 1415 - Something has got to give. | | | Abstract
If we accept the eventual conclusion of Frank's reasoning, that the human role as truth decider ultimately forecloses the possibility of a consistent system of "legal science", our development of a just and effective legal system must necessarily focus on developing the reasoning and moral courage of the individual. | | | | |
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< | WORDCOUNT: XXXX | >
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| | | Garbage In, Garbage Out: The Argument Against Legal Rules as a Mechanism of Justice | |
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< | In "Modern Legal Magic," Jerome Frank outlines a historical transition in the rules governing legal outcomes. In his terms, this shift saw legal decision makers abandoning the ritualistic and magical rite of the legal ordeal, and embracing the development of a system of law based on the precepts of logical reasoning. The latter approach is the basis for modern law; the arbitrary nature of the magical legal ritual has been improved upon and replaced by a scientific and rational set of deterministic legal rules.
Although this change seems profound, Frank questions the meaningfulness of the distinction. Any system of legal rules must draw its input from the facts surrounding a case. The truth of these facts must in turn necessarily be determined by the human process of investigation and secernment. Indeed, Frank claims this activity is so bound in the nature of the individual that it may better be understood as a process of "truth deciding." Extending Frank's reasoning, the necessity of fact as the basis for law makes decision by legal rules as contingent on human factors and circumstance as the disfavored methods of the ordeal. A system based on a interconnected system of legal rules may blind us with its refined complexity, but is only as good as the truth it is based on. In the language of computer science, "Garbage in, Garbage out."
Setting a Course: The Difficulty of Assigning Heuristics to Legal Outcomes
Any effort to reform the law must begin with an examination of the possible goals of a legal system. Although a detailed treatment of this topic is vastly outside the scope of this essay, we may posit as an example three goals arguably central to the success of any legal system: consistency of legal judgment, the efficient production of social utility, and adherence to the moral expectations of the community. While these goals are prima facia reasonable, they are bound to encounter the same difficulties of definition that plague our legal system as a whole. Consistency must be measured in terms of truth, the unknowability of which is the foundation of Frank's argument. Utility and morality are even more vague, depending on the subjective understanding of some undefined set of individuals.
Although the inability to even define adequate heuristics may seem like the death knell for the reformation of law, it strengthens the conclusion that the ideal system of law cannot be the simple result of a sufficiently complex legal system. The very goals of law are dependent on the same human factors that make legal science untenable. Even if the development of a objective system of legal rules was possible, the subjectiveness of our intentions would force us to look elsewhere for purpose or guidance in the development of law. | >
> | In "Modern Legal Magic," Jerome Frank outlines a historical transition in the rules governing legal outcomes. In his terms, this shift saw legal decision makers abandoning the ritualistic and magical rite of the legal ordeal, and embracing the development of a system of law based on the precepts of logical reasoning. The latter approach is the basis for modern law; the arbitrary legal ritual has been replaced by a scientific and rational set of deterministic legal rules. | | | | |
>
> | Although this change seems profound, Frank questions its meaningfulness. Any system of legal rules must draw input from the facts surrounding a case. The truth of these facts must in turn be determined by the human process of investigation and secernment. Indeed, Frank claims this fact gathering activity is so bound in individual nature that it may better be understood as a process of "truth deciding." The necessity of fact as the basis for law makes decision by legal rules as contingent on human factors and circumstance as the disfavored methods of the ordeal. A system based on a system of legal rules may blind us with its complexity, but is only as good as the truth it is based on. In the language of computer science, "Garbage in, Garbage out." | | | Where We Stand Post-Frank | |
<
< | A naive response to the failure of legal rules to produce objectively 'correct' decisions could be to further refine our system. This response stems from our tendency, pointed at in Frank's "Legal Science and Legal Engineering", to view the law as a potentially deterministic and scientific process. If we accept Frank's reasoning, this solution cannot possibly succeed. At the heart of any deterministic decision tree of legal rules will be the element of the fact finder and truth decider. This fundamental bias cannot be removed from the system; some mechanism must exist to choose relevant facts and establish the truth for the purposes of law. This basic requirement of legal decision making forces us to look for a conception of law that transcends our attempts to form a purely rational and systematic process. | >
> | A naive response to the failure of legal rules to produce objectively just decisions could be to further refine our system. If we accept Frank's reasoning, this solution cannot possibly succeed. At the heart of any deterministic decision tree of legal rules will be the element of the fact finder and truth decider. This fundamental bias cannot be removed from the system; some mechanism must exist to choose relevant facts and establish truth. This basic requirement of legal decision making forces us to look for a conception of ideal law that transcends our attempts to form a purely rational and systematic process. | | | | |
<
< | We find ourselves at an impasse. A refined scientific system of legal rules is unable to achieve the objective legal outcomes that would justify its creation. We are likewise unable to set objective goals to measure our system in terms of. Law is bound to the subjective human frailties of the individuals charged with administering the system. If we cannot eliminate the human from the law, it would follow that the development of a just legal system must focus on the moral and intellectual development of the legal administrator. | >
> | We find ourselves at an impasse. A refined scientific system of legal rules is unable to achieve the objective legal outcomes that would justify its creation. Law is bound by the subjective human frailties of the individuals charged with administering the system. If we cannot eliminate the human from the law, it would follow that the development of a just legal system must focus on the moral and intellectual development of the legal actor. | | |
Focusing on the Individual as a Replacement for Rules
Individual Responsibility for Legal Outcomes | |
<
< | (Section Under Construction)
Focusing on law as a systematic decision-making procedure tends to privilege process over outcome. When a judge writes that he is “forced” to rule against his own judgment, we wince, but ultimately accept the decision. The supposed benefits of consistent reasoning are substituted for consistent judgment. This trade-off would be eminently justified if strict adherence to our legal rules produced objectively just decisions; however, a deterministic system based on human and ultimately subjective input cannot take the responsibility for legal outcomes away from the adjudicators of the law. | >
> | Focusing on law as a systematic decision-making procedure tends to privilege process over outcome. When a judge writes that he is “forced” to rule against his own judgment, we wince, but ultimately accept the decision. The supposed benefits of consistent reasoning are substituted for consistent judgment. This trade-off would be eminently justified if strict adherence to our legal rules produced objectively just decisions; however, a deterministic system based on human and ultimately subjective input cannot take the responsibility for legal outcomes away from the administrators of the law. | | | | |
<
< | If we are unable to justify the results of legal decisions by appealing to the rationality of the system, we must accept that this responsibility ultimately lies with the individual. This change mandates a very different approach to the law. A legal regime that places responsibility for outcomes on the actors within the system must focus on substantially different areas of development than a system that considers rules a justification of results. The mere acceptance of personal responsibility for the consequences of a legal decision requires a vast emotional and moral maturity. The knowledge that one has chosen to send a man to his death based on necessarily imperfect information should be a profoundly difficult realization. Indeed, a prime function of our obsession with the development of the system is to relieve this burden from the consciences of legal actors. The pressure for a student of law to adopt the mythology of a rationally justified legal outcome comes as much from his own moral unease as from the external blandishments of his professors. | >
> | If we are unable to justify the results of legal decisions by appealing to the rationality of the system, we must accept that this responsibility ultimately lies with the individual. This change mandates a very different approach to the law. The mere acceptance of personal responsibility for the consequences of a legal decision requires a vast emotional and moral maturity. The knowledge that one has sent a man to his death based on necessarily imperfect information should be a profoundly disturbing realization. Indeed, a prime function of our obsession with legal rules is to relieve this burden from the consciences of legal actors. The pressure for a student of law to adopt the mythology of a rationally justified legal outcome comes as much from his own moral unease as from the external blandishments of his professors. | | | | |
<
< | For our law system to function in an ideal fashion, we must produce legal agents (both “truth deciders” and judges) that are able to accept personal responsibility for the outcome of the legal process. This trait, which we may refer to as moral courage, produces the impetus for the reform and development of the system. An agent of the law with a deep acceptance of her own role in the consequences of judgment cannot escape the moral obligation to produce a personally acceptable result. | >
> | For our law system to function in an ideal fashion, we must produce legal actors (both “truth deciders” and judges) that are able to accept personal responsibility for the outcome of the legal process. This trait, which we may refer to as moral courage, produces the impetus for the reform and development of the system. An agent of the law with a deep acceptance of her own role in the consequences of judgment cannot escape the moral obligation to produce a personally acceptable result. | | |
Developing Truth-Deciders
(Section Under Construction) | |
<
< | 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.
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 | >
> | By placing the responsibility for legal outcomes on the individual legal actor, the practice of law becomes a personal search for a morally tolerable 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 XXXXXXXXXXXXXX of modern scientific and rational thought: an open mind, a skepticism towards prior assumptions and theories, and an empirical approach to XXXXXXXXXXXX. Science and reason are thus able to rejoin the legal process, not as a means of justification or moral crutch, but in their proper places as a tools of the intellect. | | | | |
<
< | (PARAGRAPH ABOUT LEGAL RULES) | >
> | 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 individual’s legal reasoning, but also reinforces the sense of responsibility and duty with which the individual must approach her profession. The more intelligent the actor, the easier it becomes to justify one's actions - creating excuses rather than taking up the requisite moral burden. Acting within a XXXXXXXX impressing upon one another the awesome responsibility that they are XXXXXX | | | | |
<
< | 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.
* Rules assist individual decision makers i
codify
force debate | >
> | 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 rule-centric law is not a failure of the rules themselves, but simply a failure of the system to reduce human responsibility for legal outcomes. Rules serve many purposes, and would continue to be useful in an individually focused system of law. Beyond the oft-stated value of legal rules in providing various normative and warning functions, rules would be important in order to codify the evolving structure of the legal system, and thereby force debate and discussion among legal actors. | | |
Conclusion
(Section Under Construction) | |
<
< | A legal system focused on the __ of the individual is by its nature chaotic. It is a changing and
This could happen in any system, but in system focused on our personal responsibility for the
Unclear and chaotic ... this is not a flaw, but the fundamental nature of the system. The very idea behind structuring law around the individual is that we do not, nor cannot, have a static system which meets the ever-changing goals of the law. This argument falls back on the assumption that a rational and __ system adds
Notes (scrap writings I am keeping here as I edit)
The development of modern law has generally been viewed (by whom? this is a terrible sentence!) as the development of a rational system of interconnected legal rules. In "Modern Legal Magic," Jerome Frank outlines a transition from the ritualistic _ of the ordeal, to the development of a system of law based on the precepts of logical reasoning.
Although this shift in the basis of legal judgment...
Frank's criticism of the modern reliance on systems of legal rules
Although Frank holds out some hope that justice will be done If we are unable to reach a just and consistent outcome through a system of legal rules, we are If justice and consistency cannot be effected through the use of a deterministic system of legal rules, we must
Any effort to reform the law must begin with an examination of the possible goals of a legal system. Although a detailed treatment of this topic is vastly outside the scope of this essay, I will briefly _ three goals arguably central to the success of any legal system: consistency of legal judgment, the efficient production of utility, and adherence to the moral expectations of the citizenry. While these goals are prima facia reasonable, they are bound to encounter the same difficulties of definition that plague our legal system as a whole. Consistency must be measured in terms of truth, the unknowability of which is the foundation of Frank's argument. Utility and morality are even more vague, depending on the subjective understanding of some undefined set of individuals. Although this inability to even define adequate heuristics may seem like the death knell for the reformation of law, it strengthens the conclusion that the ideal system of law cannot be the simple result of sufficiently refined legal rules. _ _ the very goals of law are dependent on the human factors that make a scientific analysis untenable. The _ of injustice arises because we are sublimating our natural _ to the _ of a system. Consistent reasoning is substituted for consistent judgment. A instinctual _ at the problem might be to further refine the system, and eliminate _ from the functioning of the . If we accept Frank's reasoning, this solution cannot possibly succeed. Law itself is a deeply human activity, and the further refinement of a mechanistic system of reasoning can only mask the __. If a scientific system of legal rules is unable to eliminate the ^^human factors^^, it would follow that the development of a just legal system must focus on the moral and intellectual development.
We are focusing on producing scientists when we desperately need artists.
Note that legal rules do serve some kind of normative function. | >
> | A legal system focused on the responsibility of the individual legal actor is by its nature mutable. It is constantly shifting and adapting to meet the challenges of a changing world. One might expect two primary arguments to be leveled against such a scheme. The first argument focuses on the perceived instability or subjectivity of the system. This argument might assert that a system without a fixed and rational basis for decision lacks any bulwark against the swamp of moral relativism. Nothing prevents such a system from falling into a pattern of racial persecution and perceived immorality. This argument misses the fundamental point that a rule based system provides no greater moral stability. Humans, and therefore the prevailing social context in which individual conduct is based, are responsible for the eventual outcome in either scheme. This argument actually cuts against the ... in system focused on our personal responsibility for the
A second argument against XXXXXX could point to the clear ambiguities inherent in the development of the XXXXXX. The brief Unclear and chaotic ... this is not a flaw, but the fundamental nature of the system. The very idea behind structuring a legal system around the individual is that we do not, nor cannot, have a static system which meets the ever-changing goals of the law. This argument falls back on the assumption that a rational and __ system adds | | |
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TheodoreSmith-FirstPaper 10 - 14 Feb 2008 - Main.TheodoreSmith
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| META TOPICPARENT | name="FirstPaper%25" |
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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. | |
<
< | 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) | |
<
< | 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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TheodoreSmith-FirstPaper 9 - 13 Feb 2008 - Main.TheodoreSmith
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< | | | | Paper Title
-- By TheodoreSmith - 09 Feb 2008 | |
>
> | Abstract
If we accept the eventual conclusion of Frank's reasoning, that the human role as truth decider ultimately forecloses the possibility of a consistent system of "legal science", our development of a just and effective legal system must necessarily focus on developing the reasoning and moral courage of the individual.
Table of Contents
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< | Topic Sentence | | | | |
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< | Topic: If we accept the eventual conclusion of Frank's reasoning, that the human role as truth decider ultimately forecloses the possibility of a consistent system of "legal science", our development of a just and effective legal system must necessarily focus on developing the reasoning and moral courage of the individual. | >
> | WORDCOUNT: XXXX | | | | |
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< | Outline | >
> |
| | | The Failure of Rule Based Law to Justify Outcomes | | | Focusing on law as a systematic decision-making procedure tends to privilege process over outcome. When a judge writes that he is “forced” to rule against his own judgment, we wince, but ultimately accept the decision. The supposed benefits of consistent reasoning are substituted for consistent judgment. This trade-off would be eminently justified if strict adherence to our legal rules produced objectively just decisions; however, a deterministic system based on human and ultimately subjective input cannot take the responsibility for legal outcomes away from the adjudicators of the law. | |
<
< | If we are unable to justify the results of legal decisions by appealing to the rationality of the system, we must accept that this responsibility ultimately lies with the individual. This change mandates a very different approach to the law. A legal regime that places responsibility for outcomes on the actors within the system must focus on substantially different areas of development than a system that considers rules a justification of results. The mere acceptance of personal responsibility for the consequences of a legal decision requires a vast emotional and moral maturity. The knowledge that you have chosen to send a man to his death based on necessarily imperfect information should be a profoundly difficult realization. Indeed, a prime function of our obsession with the development of the system is to relieve this burden from the consciences of legal actors. The pressure for a student of law to adopt the mythology of a rationally justified legal outcome comes as much from his own moral unease as from the external blandishments of his professors. | >
> | If we are unable to justify the results of legal decisions by appealing to the rationality of the system, we must accept that this responsibility ultimately lies with the individual. This change mandates a very different approach to the law. A legal regime that places responsibility for outcomes on the actors within the system must focus on substantially different areas of development than a system that considers rules a justification of results. The mere acceptance of personal responsibility for the consequences of a legal decision requires a vast emotional and moral maturity. The knowledge that one has chosen to send a man to his death based on necessarily imperfect information should be a profoundly difficult realization. Indeed, a prime function of our obsession with the development of the system is to relieve this burden from the consciences of legal actors. The pressure for a student of law to adopt the mythology of a rationally justified legal outcome comes as much from his own moral unease as from the external blandishments of his professors. | | | For our law system to function in an ideal fashion, we must produce legal agents (both “truth deciders” and judges) that are able to accept personal responsibility for the outcome of the legal process. This trait, which we may refer to as moral courage, produces the impetus for the reform and development of the system. An agent of the law with a deep acceptance of her own role in the consequences of judgment cannot escape the moral obligation to produce a personally acceptable result. | | | Developing Truth-Deciders
(Section Under Construction) | |
<
< | 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 search, it is clear that courage alone can provide (PARAGRAPH ABOUT REASON)
• Our truth deciders must use reason and “science referred to by Frank, in addition to this sense of responsibility for moral outcome. | | | | |
>
> | (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. | | | | |
<
< | Although the individual decision-maker forms the basis of the legal system, individual MOMENTUM? alone cannot be the basis of a successful legal system. Law is a societal effort, and (PARAGRAPH ABOUT COLLABERATION AND MONITORING) | >
> | 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
(PARAGRAPH ABOUT LEGAL RULES) | | | | |
<
< | A focus on the role of the individual in the __ does not supercede a role for legal rules. (PARAGRAPH ABOUT LEGAL RULES)
* The notion of developing humanity rather than refining systems takes some of the focus off of legal rules. | >
> | 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 | | | * 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. | >
> | 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.
* Rules assist individual decision makers i
codify | | |
Conclusion | |
<
< | | >
> | (Section Under Construction)
A legal system focused on the __ of the individual is by its nature chaotic. It is a changing and
This could happen in any system, but in system focused on our personal responsibility for the
Unclear and chaotic ... this is not a flaw, but the fundamental nature of the system. The very idea behind structuring law around the individual is that we do not, nor cannot, have a static system which meets the ever-changing goals of the law. This argument falls back on the assumption that a rational and __ system adds | | |
Notes (scrap writings I am keeping here as I edit) |
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TheodoreSmith-FirstPaper 8 - 13 Feb 2008 - Main.TheodoreSmith
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| META TOPICPARENT | name="FirstPaper%25" |
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Paper Title | | | Developing Truth-Deciders
(Section Under Construction) | |
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< | By placing the responsibility for legal outcomes on the individual legal actor, law becomes a personal search for a morally acceptable result. Although moral courage must provide the impetus for this search, it is clear that courage (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 search, it is clear that courage alone can provide (PARAGRAPH ABOUT REASON) | | | • Our truth deciders must use reason and “science referred to by Frank, in addition to this sense of responsibility for moral outcome. |
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TheodoreSmith-FirstPaper 7 - 13 Feb 2008 - Main.TheodoreSmith
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| META TOPICPARENT | name="FirstPaper%25" |
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Paper Title | | | Although the inability to even define adequate heuristics may seem like the death knell for the reformation of law, it strengthens the conclusion that the ideal system of law cannot be the simple result of a sufficiently complex legal system. The very goals of law are dependent on the same human factors that make legal science untenable. Even if the development of a objective system of legal rules was possible, the subjectiveness of our intentions would force us to look elsewhere for purpose or guidance in the development of law. | |
>
> | | | | Where We Stand Post-Frank | |
<
< | A naive response to the failure of legal rules to produce objectively 'correct' decisions could be to further refine our system. This response stems from our tendency, pointed at in Frank's "Legal Science and Legal Engineering", to view the law as a potentially deterministic and scientific process. If we accept Frank's reasoning, this solution cannot possibly succeed. At the heart of any deterministic decision tree of legal rules will be the element of the fact finder and truth decider. This fundamental bias cannot be removed from the system; some mechanism must exist to choose relevant facts and establish the truth for the purposes of law. This fundamental requirement of legal decision making forces us to look beyond a purely rational and systematic process to judicial decision making. | >
> | A naive response to the failure of legal rules to produce objectively 'correct' decisions could be to further refine our system. This response stems from our tendency, pointed at in Frank's "Legal Science and Legal Engineering", to view the law as a potentially deterministic and scientific process. If we accept Frank's reasoning, this solution cannot possibly succeed. At the heart of any deterministic decision tree of legal rules will be the element of the fact finder and truth decider. This fundamental bias cannot be removed from the system; some mechanism must exist to choose relevant facts and establish the truth for the purposes of law. This basic requirement of legal decision making forces us to look for a conception of law that transcends our attempts to form a purely rational and systematic process.
We find ourselves at an impasse. A refined scientific system of legal rules is unable to achieve the objective legal outcomes that would justify its creation. We are likewise unable to set objective goals to measure our system in terms of. Law is bound to the subjective human frailties of the individuals charged with administering the system. If we cannot eliminate the human from the law, it would follow that the development of a just legal system must focus on the moral and intellectual development of the legal administrator. | | | Focusing on the Individual as a Replacement for Rules
Individual Responsibility for Legal Outcomes | |
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If a scientific system of legal rules is unable to eliminate the fundamental bias caused by human intrepretation , it would follow that the development of a just legal system must focus on the moral and intellectual development.
_The _ of injustice arises because we are sublimating our natural _ to the _ of a system. Consistent reasoning is substituted for consistent judgment. A instinctual _ at the problem might be to further refine the system, and eliminate _ from the functioning of the . | >
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Focusing on law as a systematic decision-making procedure tends to privilege process over outcome. When a judge writes that he is “forced” to rule against his own judgment, we wince, but ultimately accept the decision. The supposed benefits of consistent reasoning are substituted for consistent judgment. This trade-off would be eminently justified if strict adherence to our legal rules produced objectively just decisions; however, a deterministic system based on human and ultimately subjective input cannot take the responsibility for legal outcomes away from the adjudicators of the law.
If we are unable to justify the results of legal decisions by appealing to the rationality of the system, we must accept that this responsibility ultimately lies with the individual. This change mandates a very different approach to the law. A legal regime that places responsibility for outcomes on the actors within the system must focus on substantially different areas of development than a system that considers rules a justification of results. The mere acceptance of personal responsibility for the consequences of a legal decision requires a vast emotional and moral maturity. The knowledge that you have chosen to send a man to his death based on necessarily imperfect information should be a profoundly difficult realization. Indeed, a prime function of our obsession with the development of the system is to relieve this burden from the consciences of legal actors. The pressure for a student of law to adopt the mythology of a rationally justified legal outcome comes as much from his own moral unease as from the external blandishments of his professors.
For our law system to function in an ideal fashion, we must produce legal agents (both “truth deciders” and judges) that are able to accept personal responsibility for the outcome of the legal process. This trait, which we may refer to as moral courage, produces the impetus for the reform and development of the system. An agent of the law with a deep acceptance of her own role in the consequences of judgment cannot escape the moral obligation to produce a personally acceptable result. | | | Developing Truth-Deciders | |
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By placing the responsibility for legal outcomes on the individual legal actor, law becomes a personal search for a morally acceptable result. Although moral courage must provide the impetus for this search, it is clear that courage (PARAGRAPH ABOUT REASON)
• Our truth deciders must use reason and “science referred to by Frank, in addition to this sense of responsibility for moral outcome. | | | | |
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< | A Place for Legal Rules | | | | |
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> | Although the individual decision-maker forms the basis of the legal system, individual MOMENTUM? alone cannot be the basis of a successful legal system. Law is a societal effort, and (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.
A focus on the role of the individual in the __ does not supercede a role for legal rules. (PARAGRAPH ABOUT LEGAL RULES) | | |
- The notion of developing humanity rather than refining systems takes some of the focus off of legal rules.
- Placing our focus on the rationality and maturity of the truth decider does not, however, eliminate the need for rules.
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- While the justification and responsibility for the judicial decision must ultimately rest with the individual, legal rules and standards can serve other functions than creating the illusion of objectivity.
- Rules codify the thinking of a community
- Rules force debate
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> | * 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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- Rules assist individual decision makers
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> | * Rules assist individual decision makers i
codify
force debate | | |
Conclusion |
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