Law in Contemporary Society

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TheodoreSmith-FirstPaper 16 - 19 Feb 2008 - Main.AndrewGradman
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Individual Responsibility for Legal Outcomes

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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 ritual of the legal ordeal, and embracing a conception of law founded on the precepts of logical reasoning. The latter approach is the basis for modern law; the arbitrary legal ritual has been replaced by a presumably rational set of quasi-deterministic legal rules.
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<		Although this change seems profound, Frank questions its meaningfulness. Any system of legal rules must draw its circumstance from the facts surrounding a case. The truth of these facts must in turn be determined by the human processes of investigation and secernment (??); truth must be differentiated and given meaning by a finite and limited individual. This factual basis of law makes decision by legal rules as contingent on human factors and circumstance as the disfavored methods of the ordeal. A system of reason and rules may blind us with its complexity, but is only as good as the truth it is based on.
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>		Although this change seems profound, Frank questions its meaningfulness. Any system of legal rules must draw its circumstance from the facts surrounding a case. The truth of these facts must in turn be determined by the human processes of investigation and secernment (??) (!!) ; truth must be differentiated and given meaning by a finite and limited individual. This factual basis of law makes decision by legal rules as contingent on human factors and circumstance as the disfavored methods of the ordeal. A system of reason and rules may blind us with its complexity, but is only as good as the truth it is based on.
 

Where We Stand Post-Frank


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