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Paper Title |
| | Garbage In, Garbage Out: The Argument Against Legal Rules as a Mechanism of Justice |
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< | Frank and the Role of Truth in a Legal System |
| | 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 ritualistic and magical rite of the legal ordeal, and embracing the development of a system of law based on the precepts of logical reasoning. The latter approach is the basis for modern law; the arbitrary nature of the magical legal ritual has been improved upon and replaced by a scientific and rational set of deterministic legal rules. |
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< | Although this change seems profound, Frank questions the validity of the distinction. Any system of legal rules must draw its input from the facts surrounding a case. The truth of these facts must necessarily be determined by the human process of investigation and secernment. Indeed, Frank claims this activity is so bound in the nature of individual that it may better be understood as a process of "truth deciding." Extending Frank's reasoning, we find that the necessity of fact as the basis for law makes decision by legal rules as contingent on human factors and circumstance as the disfavored methods of the ordeal. A system based on a interconnected system of legal rules may blind us with its refined complexity, but is only as good as the truth it is based on. In an expression used by engineers of information systems, "Garbage in, Garbage out."
The Failure of Further Refining Rules
An naive response to the failure of legal rules to produce objective and rational decisions could be to further refine our system. This response stems from our tendency, pointed at in Frank's "Legal Science and Legal Engineering", to view the law as a potentially deterministic and scientific process... (paragraph not complete) |
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> | Although this change seems profound, Frank questions the meaningfulness of the distinction. Any system of legal rules must draw its input from the facts surrounding a case. The truth of these facts must in turn necessarily be determined by the human process of investigation and secernment. Indeed, Frank claims this activity is so bound in the nature of the individual that it may better be understood as a process of "truth deciding." Extending Frank's reasoning, the necessity of fact as the basis for law makes decision by legal rules as contingent on human factors and circumstance as the disfavored methods of the ordeal. A system based on a interconnected system of legal rules may blind us with its refined complexity, but is only as good as the truth it is based on. In the language of computer science, "Garbage in, Garbage out." |
| | Setting a Course: The Difficulty of Assigning Heuristics to Legal Outcomes
The Goals of a Legal System |
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< | Any effort to reform the law must begin with an examination of the possible goals of a legal system.... (paragraph not complete) |
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> | Any effort to reform the law must begin with an examination of the possible goals of a legal system. Although a detailed treatment of this topic is vastly outside the scope of this essay, we may posit as an example three goals arguably central to the success of any legal system: consistency of legal judgment, the efficient production of social utility, and adherence to the moral expectations of the community. While these goals are prima facia reasonable, they are bound to encounter the same difficulties of definition that plague our legal system as a whole. Consistency must be measured in terms of truth, the unknowability of which is the foundation of Frank's argument. Utility and morality are even more vague, depending on the subjective understanding of some undefined set of individuals. |
| | The Effect of Subjective Goals |
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< | Although this inability to even define adequate heuristics may seem like the death knell for the reformation of law, it strengthens the conclusion that the ideal system of law cannot be the simple result of sufficiently refined legal rules. The very goals of law are dependent on the human factors that make a scientific analysis untenable.... (paragraph not complete) |
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> | Although the inability to even define adequate heuristics may seem like the death knell for the reformation of law, it strengthens the conclusion that the ideal system of law cannot be the simple result of sufficiently complex legal rules. The very goals of law are dependent on the human factors that make a scientific analysis untenable. Even if the development of a objective and scientific legal system was possible, the subjectiveness of our goals... (paragraph not complete) |
| | Where We Stand Post-Frank |
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> | A naive response to the failure of legal rules to produce objective and rational decisions could be to further refine our system. This response stems from our tendency, pointed at in Frank's "Legal Science and Legal Engineering", to view the law as a potentially deterministic and scientific process. ... (paragraph not complete) |
| | Focusing on the Individual as a Replacement for Rules
Individual Responsibility for Legal Outcomes |
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> | The _ of injustice arises because we are sublimating our natural _ to the _ of a system. Consistent reasoning is substituted for consistent judgment. A instinctual _ at the problem might be to further refine the system, and eliminate _ from the functioning of the . _(paragraph not complete) |
| | Developing Truth-Deciders
A Place for Legal Rules |
| | Any effort to reform the law must begin with an examination of the possible goals of a legal system. Although a detailed treatment of this topic is vastly outside the scope of this essay, I will briefly _ three goals arguably central to the success of any legal system: consistency of legal judgment, the efficient production of utility, and adherence to the moral expectations of the citizenry. While these goals are prima facia reasonable, they are bound to encounter the same difficulties of definition that plague our legal system as a whole. Consistency must be measured in terms of truth, the unknowability of which is the foundation of Frank's argument. Utility and morality are even more vague, depending on the subjective understanding of some undefined set of individuals. Although this inability to even define adequate heuristics may seem like the death knell for the reformation of law, it strengthens the conclusion that the ideal system of law cannot be the simple result of sufficiently refined legal rules. _ _ the very goals of law are dependent on the human factors that make a scientific analysis untenable. The _ of injustice arises because we are sublimating our natural _ to the _ of a system. Consistent reasoning is substituted for consistent judgment. A instinctual _ at the problem might be to further refine the system, and eliminate _ from the functioning of the . If we accept Frank's reasoning, this solution cannot possibly succeed. Law itself is a deeply human activity, and the further refinement of a mechanistic system of reasoning can only mask the __. If a scientific system of legal rules is unable to eliminate the ^^human factors^^, it would follow that the development of a just legal system must focus on the moral and intellectual development.
We are focusing on producing scientists when we desperately need artists. |
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> | Note that legal rules do serve some kind of normative function. |
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