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-- By TheodoreSmith - 09 Feb 2008 |
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If we accept the eventual conclusion of Frank's reasoning, that the human role as truth decider ultimately forecloses the possibility of a consistent system of "legal science", our development of a just and effective legal system must necessarily focus on developing the reasoning and moral courage of the individual.
Table of Contents
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< | Topic: If we accept the eventual conclusion of Frank's reasoning, that the human role as truth decider ultimately forecloses the possibility of a consistent system of "legal science", our development of a just and effective legal system must necessarily focus on developing the reasoning and moral courage of the individual. |
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| | The Failure of Rule Based Law to Justify Outcomes |
| | Focusing on law as a systematic decision-making procedure tends to privilege process over outcome. When a judge writes that he is “forced” to rule against his own judgment, we wince, but ultimately accept the decision. The supposed benefits of consistent reasoning are substituted for consistent judgment. This trade-off would be eminently justified if strict adherence to our legal rules produced objectively just decisions; however, a deterministic system based on human and ultimately subjective input cannot take the responsibility for legal outcomes away from the adjudicators of the law. |
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< | If we are unable to justify the results of legal decisions by appealing to the rationality of the system, we must accept that this responsibility ultimately lies with the individual. This change mandates a very different approach to the law. A legal regime that places responsibility for outcomes on the actors within the system must focus on substantially different areas of development than a system that considers rules a justification of results. The mere acceptance of personal responsibility for the consequences of a legal decision requires a vast emotional and moral maturity. The knowledge that you have chosen to send a man to his death based on necessarily imperfect information should be a profoundly difficult realization. Indeed, a prime function of our obsession with the development of the system is to relieve this burden from the consciences of legal actors. The pressure for a student of law to adopt the mythology of a rationally justified legal outcome comes as much from his own moral unease as from the external blandishments of his professors. |
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> | If we are unable to justify the results of legal decisions by appealing to the rationality of the system, we must accept that this responsibility ultimately lies with the individual. This change mandates a very different approach to the law. A legal regime that places responsibility for outcomes on the actors within the system must focus on substantially different areas of development than a system that considers rules a justification of results. The mere acceptance of personal responsibility for the consequences of a legal decision requires a vast emotional and moral maturity. The knowledge that one has chosen to send a man to his death based on necessarily imperfect information should be a profoundly difficult realization. Indeed, a prime function of our obsession with the development of the system is to relieve this burden from the consciences of legal actors. The pressure for a student of law to adopt the mythology of a rationally justified legal outcome comes as much from his own moral unease as from the external blandishments of his professors. |
| | For our law system to function in an ideal fashion, we must produce legal agents (both “truth deciders” and judges) that are able to accept personal responsibility for the outcome of the legal process. This trait, which we may refer to as moral courage, produces the impetus for the reform and development of the system. An agent of the law with a deep acceptance of her own role in the consequences of judgment cannot escape the moral obligation to produce a personally acceptable result. |
| | Developing Truth-Deciders
(Section Under Construction) |
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< | By placing the responsibility for legal outcomes on the individual legal actor, the practice of law becomes a personal search for a morally acceptable result. Although moral courage must provide the impetus for this search, it is clear that courage alone can provide (PARAGRAPH ABOUT REASON)
• Our truth deciders must use reason and “science referred to by Frank, in addition to this sense of responsibility for moral outcome. |
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By placing the responsibility for legal outcomes on the individual legal actor, the practice of law becomes a personal search for a morally acceptable result. Although moral courage must provide the impetus for this investigation, courage alone cannot provide the means. The obligation to produce an acceptable result brings with it an obligation to bring to bear the full weight of human intellect and understanding. Although this does not commit the actor to any particular analytical technique, a strong case could be made for the necessity of what Frank refers to as the "scientific spirit." (Frank, Legal Science and Legal Engineering, p.219.) This idea simply encompasses the __ of modern scientific and rational thought: an open mind, a skepticism to assumption and theory, and a _. Science and reason is thus able to rejoin the legal process, not as a means of justification or moral crutch, but in its proper place as a tool of the intellect. |
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< | Although the individual decision-maker forms the basis of the legal system, individual MOMENTUM? alone cannot be the basis of a successful legal system. Law is a societal effort, and (PARAGRAPH ABOUT COLLABERATION AND MONITORING) |
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> | Although the individual decision-maker thus forms the basis of the legal system, her effort alone cannot be the _ of a successful legal system. Law is a social effort, and must exist as a collaborative force. A successful truth decider and adjudicator can only be successful within a community of her peers. Constant collaboration and monitoring is not only necessary to maintain a flexible and effective legal process, but is essential to maintain an individual sense of morality and responsibility. (PARAGRAPH ABOUT COLLABERATION AND MONITORING) |
| | • Our truth deciders must have the responsibility to monitor one another to ensure that they are taking this duty with the seriousness required. |
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> | This becomes particularly important ... without support and _ from the legal community, it balanced on a razor's edge. The constant discussion and reexamination of assumptions and _ is necessary for the stability of a system putting such a moral weight on the individualv
(PARAGRAPH ABOUT LEGAL RULES) |
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< | A focus on the role of the individual in the __ does not supercede a role for legal rules. (PARAGRAPH ABOUT LEGAL RULES)
* The notion of developing humanity rather than refining systems takes some of the focus off of legal rules. |
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> | Just as a focus on the role of the individual does not preclude methods of rational and scientific thought, the _ does not supercede a role for legal rules. The notion of developing individuals rather than refining systems takes some of our intellectual focus off of legal rules, however |
| | * Placing our focus on the rationality and maturity of the truth decider does not, however, eliminate the need for rules. |
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< | * While the justification and responsibility for the judicial decision must ultimately rest with the individual, rules can serve other functions than creating the illusion of objectivity. |
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> | While the justification and responsibility for the judicial decision must ultimately rest with the individual, rules can serve other functions than creating the illusion of objectivity. |
| | * 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 i
codify |
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Conclusion |
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A legal system focused on the __ of the individual is by its nature chaotic. It is a changing and
This could happen in any system, but in system focused on our personal responsibility for the
Unclear and chaotic ... this is not a flaw, but the fundamental nature of the system. The very idea behind structuring law around the individual is that we do not, nor cannot, have a static system which meets the ever-changing goals of the law. This argument falls back on the assumption that a rational and __ system adds |
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Notes (scrap writings I am keeping here as I edit) |