Individual Responsibility for Legal Outcomes

-- By TheodoreSmith - 09 Feb 2008

Summary

If we accept the eventual conclusion of Frank's reasoning, that the human role as truth decider ultimately forecloses the possibility of an objective 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 Rules to Justify Outcomes

Garbage In, Garbage Out: The Argument Against Legal Rules

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 ritual of the legal ordeal, and embracing a conception of law founded on the precepts of logical reasoning. The latter approach is the basis for modern law; the arbitrary legal ritual has been replaced by a presumably rational set of quasi-deterministic legal rules.

Although this change seems profound, Frank questions its meaningfulness. Any system of legal rules must draw its circumstance from the facts surrounding a case. The truth of these facts must in turn be determined by the human processes of investigation and secernment; truth must be differentiated and given meaning by a finite and limited individual. This factual basis of law makes decision by legal rules as contingent on human factors and circumstance as the disfavored methods of the ordeal. A system of reason and rules may blind us with its complexity, but is only as good as the truth it is based on.

Where We Stand Post-Frank

A naive response to the failure of legal rules to produce objectivity could be to further refine the 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 a purely deterministic and systematic process.

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

Focusing on the Individual

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 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 effective manner, 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 outcome.

Developing Truth-Deciders

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, it cannot alone 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. Reason, science, and rules are thus able to rejoin the legal process, not as moral crutches, but in their proper places as tools of the intellect. The failure of rule-centric law is not a failure of the techniques themselves, but simply a failure of the system to reduce human responsibility for its outcome.

Although the individual decision-maker thus creates the basis of law, 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 the 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.

Conclusion

A legal system focused on the responsibility of the individual is by its nature mutable. To some, this may suggest an inevitable slippery slope into Nazism or other morally abhorrent condition. This response makes a false assumption about the stability of rule based systems; humans are ultimately responsible for legal outcomes in either case. Our choice is not between objectivity and the despot. The despot will rule regardless. Our choice is between hiding our conscience behind a screen of false objectivity and reason, or forcing ourselves to accept the consequences of our actions - taking full and final responsibility for the outcome of the law.