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TheodoreSmith-FirstPaper 12 - 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. | >
> | WORDCOUNT: 1320 - Something has got to give. | | |
Abstract | | | (Section Under Construction) | |
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< | 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. | >
> | 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.) 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 tools of the intellect. | | | | |
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< | 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 | >
> | 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. 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. | | | 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 | |
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> | | | | (Section Under Construction) | |
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< | 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 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. Arguments
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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