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Paper Title |
| | Setting a Course: The Difficulty of Assigning Heuristics to Legal Outcomes |
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< | The Goals of a Legal System |
| | 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. |
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< | The Effect of Subjective Goals
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) |
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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 a sufficiently complex legal system. The very goals of law are dependent on the same human factors that make legal science untenable. Even if the development of a objective system of legal rules was possible, the subjectiveness of our intentions would force us to look elsewhere for purpose or guidance in the development of law. |
| | 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) |
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> | A naive response to the failure of legal rules to produce objectively 'correct' 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. If we accept Frank's reasoning, this solution cannot possibly succeed. At the heart of any deterministic decision tree of legal rules will be the element of the fact finder and truth decider. This fundamental bias cannot be removed from the system; some mechanism must exist to choose relevant facts and establish the truth for the purposes of law. This fundamental requirement of legal decision making forces us to look beyond a purely rational and systematic process to judicial decision making. |
| | 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) |
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If a scientific system of legal rules is unable to eliminate the fundamental bias caused by human intrepretation , it would follow that the development of a just legal system must focus on the moral and intellectual development.
_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 . |
| | Developing Truth-Deciders |
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| | A Place for Legal Rules |
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- The notion of developing humanity rather than refining systems takes some of the focus off of legal rules.
- Placing our focus on the rationality and maturity of the truth decider does not, however, eliminate the need for rules.
- While the justification and responsibility for the judicial decision must ultimately rest with the individual, legal rules and standards can serve other functions than creating the illusion of objectivity.
- Rules codify the thinking of a community
- Rules force debate
- Rules serve some sort of normative function, both in setting positive standards for ethical or moral conduct, and making clear any community proscriptions on conduct.
- Rules assist individual decision makers
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| | Conclusion |