Another line of criticism may be developed through an examination of the impact of a formal, rule-based system of law on its individual legal actors. In this essay, we shall focus specifically on the degree to which a procedural system makes it easier for lawyers, judges, and other legal professionals to morally distance themselves from legal outcomes. With this aim, we will look at three related characteristics of a formal legal system that may encourage the disassociation of legal actions from legal consequences, and provide means to avoid taking personal responsibility for morally distasteful legal results. Together, _, although it is important to note that facilitation of moral distance is not a mandate of immorality, and it would be naïve to assert that many legal professionals feel no

The first morally distancing aspect of a procedural legal system arises from of the psychological concept of indirectness bias. Indirectness bias refers to the human tendency to place greater moral weight on activities that are a direct, rather than indirect, result of their actions. The idea that directness generally factors into moral calculations and moral liability has been shown experimentally, and is reflected in many of our justifications for proximate cause and other legal doctrines.

A procedural system of law creates indirectness by its very nature. A rule-centric legal system creates a procedural decision tree, making the consequences of actions dependant on a sequence of subsequent events, and possibly influenced by a number of other legal actors. The testimony of a policeman lying under oath in a complex trial may be influenced by several levels of procedural __, spin by attorneys, motions, Regardless of the degree to which these subsequent influences actually have an intervening effect, the mere appearance of

A ruled based legal system further distances legal actions from outcomes by providing fixed roles and an _ ethical code to its actors. This aspect of procedural legal systems is particularly prevalent in the adversarial model of American law. A central assumption of this type of system is that a just outcome will tend to arise when each legal actor is effectively performing his or her role in the overall legal process. This assumption, that the system is responsible for the justice (or injustice) of the outcome, has the potential to provide a easy moral scapegoat for the individuals working within the system. Because American legal professionals are taught to believe in the efficacy of procedural justice, and because they are bound by an ethical code to zealously perform the duties of their role, it again becomes easier to shrug off personally distasteful consequences of their actions. Indeed, a strong belief in procedural justice may imply that there is no basis for personal moral judgment whatsoever – if justice simply is what is produced by the formal system (Frank’s critiques not withstanding), it would seem to be __ NOT to feel moral discomfort at the outcomes of the system. It is important to note that Although it should not be implied that the individuals within the legal system have no eye for the overall just outcome of, this

A third, related morally distancing characteristic of procedural law can be found in the restraints it places on its actors to influence the consequences of the process. An ethical and procedural code necessarily limits the impact that each legal actor can have on the outcome. These constraints Although the facilitation of moral distance may be perceived as a weakness of a procedural system of law, it is important to note that such a tendency is not absolute. Just as Frank was careful to point out that the human role as fact-decider does not preclude justice, we must be careful here to not overstate the power of the disassociating characteristics of a formal legal system. It would be naïve to assert that judges and attorneys are

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Notes for Rewrite

Topic Modification - One of the problems with a formal system of law is that it helps legal actors avoid taking moral responsibility for their actions.

• A formal system provides a decision tree that makes the consequences of an action indirect. Psychology and moral intuition show that we feel less moral culpability when distanced from the consequences of an action.
• A formal system allows us to play a role, and satisfy our conscience by pointing to the general efficacy of the system.
• A formal system limits the actions we can take to generate a personally satisfactory moral outcome, thereby increasing our moral distance from the consequences by dint of sheer powerlessness.
• Focusing on these three issues, they boil down to indirect consequences, scapegoat, and powerlessness.
• What would it look like if we modified the system? Part of the point is the "separation of powers" idea.
• Go to more judge directed system like we see in some civil law countries?
• Is there a way to maintain balancing benefits of a formal system while making actors feel more responsible for outcomes.
• What is the point of all this? Impetus for change comes from within a system, we want to make injustice as morally unacceptable as possible for the actors
• Be sure to emphasize that this is not hiding responsibility and tricking people, but simply making it easier for some to ignore.

"But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions." - James Madison (Federalist No.51)

Topic Modification - Madison was discussing ways to maintain "the necessary partition of power among the several departments" of the government. He was trying to reason out a structural what he saw as the human tendency to self-aggrandize. The solution discussed in his brief essay was