Paper Title

-- By TheodoreSmith - 09 Feb 2008

WORDCOUNT: 1320 - Something has got to give.

Abstract

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

The Failure of Rule Based Law to Justify Outcomes

Garbage In, Garbage Out: The Argument Against Legal Rules as a Mechanism of Justice

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 The latter approach is the basis for modern law; the arbitrary legal ritual has been replaced by a scientific and rational set of deterministic legal rules.

Although this change seems profound, Frank questions its meaningfulness. Any system of legal rules must draw input from the facts surrounding a case. The truth of these facts must in turn be determined by the human process of investigation and secernment. Indeed, Frank claims this fact gathering activity is so bound in individual nature that it may better be understood as a process of "truth deciding." 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 system of legal rules may blind us with its complexity, but is only as good as the truth it is based on. In the language of computer science, "Garbage in, Garbage out."

Where We Stand Post-Frank

A naive response to the failure of legal rules to produce objectively just decisions could be to further refine our system. 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 truth. This basic requirement of legal decision making forces us to look for a conception of ideal law that transcends our attempts to form a purely rational and systematic process.

We find ourselves at an impasse. A refined scientific system of legal rules is unable to achieve the objective legal outcomes that would justify its creation. Law is bound by the subjective human frailties of the individuals charged with administering the system. If we cannot eliminate the human from the law, it would follow that the development of a just legal system must focus on the moral and intellectual development of the legal actor.

Focusing on the Individual as a Replacement for Rules

Individual Responsibility for Legal 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 administrators of the law.

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. 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 sent a man to his death based on necessarily imperfect information should be a profoundly disturbing realization. Indeed, a prime function of our obsession with legal rules 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 actors (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)

By placing the responsibility for legal outcomes on the individual legal actor, the practice of law becomes a personal search for a morally tolerable 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.) Science and reason are thus able to rejoin the legal process, not as a means of justification or moral crutch, but in their proper places as tools of the intellect.

Although the individual decision-maker thus creates the basis of the legal system, her effort alone cannot form the extent of a successful legal system. Law is a social exercise, and must exist as a collaborative effort; a successful truth decider and adjudicator can only succeed within a community of her peers. Constant collaboration and monitoring is not only necessary to produce a flexible and effective legal process, but is essential to maintain an individual sense of morality and responsibility. Feedback from peers can shape and develop the individual’s legal reasoning, but also reinforces the sense of responsibility and duty with which the individual must approach her profession.

A focus on the role of the individual does not preclude the use of legal rules any more than it precludes rational and scientific thought. The failure of rule-centric law is not a failure of the rules themselves, but simply a failure of the system to reduce human responsibility for legal outcomes. Rules serve many purposes, and would continue to be useful in an individually focused system of law. Beyond the oft-stated value of legal rules in providing various normative and warning functions, rules would be important in order to codify the evolving structure of the legal system, and thereby force debate and discussion among legal actors.

Conclusion

(Section Under Construction)

A legal system focused on the responsibility of the individual legal actor is by its nature mutable. It is constantly shifting and adapting to meet the challenges of a changing world. Arguments

One might expect two primary arguments to be leveled against such a scheme. The first argument focuses on the perceived instability or subjectivity of the system. This argument might assert that a system without a fixed and rational basis for decision lacks any bulwark against the swamp of moral relativism. Nothing prevents such a system from falling into a pattern of racial persecution and perceived immorality. This argument misses the fundamental point that a rule based system provides no greater moral stability. Humans, and therefore the prevailing social context in which individual conduct is based, are responsible for the eventual outcome in either scheme. This argument actually cuts against the ... in system focused on our personal responsibility for the A second argument against XXXXXX could point to the clear ambiguities inherent in the development of the XXXXXX. The brief Unclear and chaotic ... this is not a flaw, but the fundamental nature of the system. The very idea behind structuring a legal system 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