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TheodoreSmith-FirstPaper 25 - 23 May 2008 - Main.TheodoreSmith
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Moral Distance and Procedural Legal Systems
-- By TheodoreSmith - 21 May 2008
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> | Note: This is not so much a rewrite as it is an entirely new paper. I interpreted Eben's original comments as suggesting I had been somewhat overreaching in my original choice of a topic, so this rewrite was an attempt to pick one of the themes of that paper and develop it more fully. To see the original paper, please look in the page history. | | |
Table of Contents | | | Avoiding Overstatement | |
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< | 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 no lawyer has ever sought to distance herself from the substantive consequences of her actions; however, it would be equally absurd to hold that many judges and attorneys are not deeply morally affected by the outcomes of their cases. | >
> | 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 no lawyer has ever sought to distance herself from the substantive consequences of her actions; however, it would be equally absurd to hold that many judges and attorneys are not deeply affected by the outcomes of their cases. | | | Why it matters | |
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< | As practitioners within a formal legal system, the practical importance of this analysis can be illustrated on two grounds. First, as lawyers, understanding the nature of these dissociating characteristics may allow us to avoid the trap of self-justification. The smarter the individual, the easier it becomes for him to rationalize his actions; we must be aware of our own potential to evade responsibility or justify not searching for creative legal solutions to our problems. Second, the impetus to reform the legal system will arise out of dissatisfaction with the substantive outcomes of the process. The more we are aware of the morally distancing features of our procedural system, the more likely we are to be able to avoid moral complacency regarding the results of the system and our role as legal actors. | | | \ No newline at end of file | |
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> | As practitioners within a formal legal system, the practical importance of this analysis can be illustrated on two levels. First, as lawyers, understanding the nature of these dissociating characteristics may allow us to avoid the trap of self-justification. The smarter the individual, the easier it becomes for him to rationalize his actions; we must be aware of our own potential to evade responsibility or justify not searching for creative legal solutions to our problems. Second, the impetus to reform the legal system will arise out of dissatisfaction with the substantive outcomes of the process. The more we are aware of the morally distancing features of our procedural system, the more likely we are to be able to avoid moral complacency regarding the results of the system and our role as legal actors. | | | \ No newline at end of file |
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