| | |
|
TheodoreSmith-FirstPaper 13 - 14 Feb 2008 - Main.TheodoreSmith
|
| |
| META TOPICPARENT | name="FirstPaper%25" |
|---|
Paper Title
-- By TheodoreSmith - 09 Feb 2008 | |
<
< | WORDCOUNT: 1320 - Something has got to give. | >
> | WORDCOUNT: 1192 - Getting closer. | | |
Abstract | | | 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 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.
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. | | | (Section Under Construction) | |
<
< | 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 | >
> | A legal system focused on the responsibility of the individual legal actor is by its nature mutable. It is constantly adapting to meet the challenges of a changing world. It could be claimed that this scheme would therefore have no defense against _. This argument misses the fundamental flaw of a rule based system. Humans are going to be ultimately responsible for legal outcomes in either scheme, and a system that places the responsibility for outcomes directly on the individual is going to be far less vulnerable to the moral whims of the community. Objective and __ is impossible, and (something about using rules to avoiding responsibility) | | |
|
|
|
|
|
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
|
|
| | |