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Individual Responsibility for Legal Outcomes | | | A common theme running through our early readings has been an examination of the various weaknesses of a formal and procedural system of law. Cohen focused on the tendency of formal legal reasoning to become circular and self-justifying, while Frank pointed out the ultimately human and contingent basis of legal decision making. For the purposes of this essay, these critiques of the legal system may collectively be thought of as addressing different aspects of humanity’s impact on the formal system. Although law is necessarily dependent on individuals for its operation, Cohen’s nonsense and Frank’s fact-deciding may here be considered examples of problems that arise when the formal legal system is placed within the context of human _ | |
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< | 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 | >
> | 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 the legal outcomes of the process. 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. It would be wrong to assert that legal professionals are unaware of moral consequences or do not feel deeply responsible for the outcomes of _; the characteristics examined here are simply three traits that make it easier for an actor in a formal legal system to assuage her conscience, | | | | |
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< | 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. | >
> | The first morally distancing aspect of a procedural legal system arises out 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 some 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 | |
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< | 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 | >
> | 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. A system based on ethical and procedural rules necessarily limits the impact that each legal actor can have on the outcome. Regardless of the actual inviolability of the constraints, the facial appearance of powerlessness can provide a powerful moral crutch for an individual confronted with a dissatisfying outcome. Not only can the apparent powerlessness of the individual help to personally excuse an unjust result, but the supposed constraints imposed by the system may discourage a legal actor from searching for a more creative legal solution.
Although these three characteristics may be perceived as weaknesses of a procedural system of law, it is important to note that any tendency for the legal actor to morally distance herself 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 absurd to assert that judges and attorneys are not morally affected by the outcomes of their cases.
Conclusion - Why does this matter and implications. Matters because change can come from the moral dissatisfaction of the actors within the system, and matters because as potential actors within the system, we need to be aware of these possible self-justifications and not be lazy. It may be easier in come cases to use these features of the system to avoid responsibility or to justify not looking for a hidden legal solution to a problem, and understanding the nature of these characteristics may help us to not fall into a trap of self-justifying complacency. | | |
- 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.
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