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 The latter approach is the basis for modern law; the arbitrary legal ritual has been replaced by a presumably rational set of quasi-deterministic legal rules.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

• This does not actually follow. Trying to claim that your bagatelle is entailed by Frank is simply wrong. He wrote, in fact, a book whose title--taken from James Madison--"If Men Were Angels," specifically announced rejection of your supposed inference. Perfectability of man was not his thing, and existentialism likewise. You could have found many ways of introducing your claims, and maybe you still should, although the claims themselves seem to me less compelling than they seem to you. But the way you are going is shut.

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.

• Now you are being simplistic. In the first place, most judges I know are acutely conscious of their personal responsibility for the consequences of error. They are also highly knowledgeable about the environments in which they work, and are profoundly aware of the inevitability that any judgment they can make about most of the social situations that most pain them when seen in their courtroom is beyond their legal power and would not be properly executed even if they had the power to order it. They make the decisions the law allows them to make not only because they know what you are forgetting here, that the judge's power "to produce a personally acceptable outcome" is often nil, but also because they know that despite the tragic nature of impersonal procedural government, it is also the only tool for establishing the rule of law, which they consider (sometimes for sentimental and intellectually vacuous and sometimes for the most refined and thoughtful of reasons) an "inestimable blessing."

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.

• This is a new proposition, which requires defense, and your strong phrasing of the idea almost guarantees that it is indefensible. Everything we think is wrong with formal systems is "simply" a failure to grant judges enough personal discretion? To establish that you have to disestablish many other purportedly contributing elements. Cohen is certain that the problem lies at least in part in properties of formal systems; in order to establish your proposition, you need to show that he is completely wrong. Similarly, you have to have a complete answer for all criticisms that suggest no amount of human moral responsibility will reverse inherent defects in human cognition and limits in human cogitation. Not to mention what I suppose we might call Robespierre Syndrome, or an absolutely virtuous willingness to take total moral responsibility for radical injustice. For which you must possess somewhere about you a complete and indeed retroactive cure good against every form of fanaticism that ever committed judicial murder with self-conscious self-righteousness. Wouldn't a weaker claim make more sense here? Even if it led to a more serious reconsideration of the topic as a whole....

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.

• Here you half-admitted the presence of the difficulty, and then chose to put it behind you by mere force of bluster ("slippery slope to Nazism" is not a good way to make me believe you are taking someone else's argument seriously). All arguments in responsible persuasive writing must be "real," that is, they must acknowledge the presence of a serious issue arising from genuine disagreement between those who, sharing common grounds, reach differing conclusions. When you find yourself suddenly putting an unreal argument in the conclusion, you should immediately go from "writer mode" to "editor mode" and ask why a straw man has been slipped in at bedtime. It almost always indicates a serious flaw in some preceding argument now being covered too little, too late.

Notes for Rewrite

Topic Modification - One of the problems with a formal system of law is that it helps legal actors avoid taking moral responsibility for their actions.

• A formal system provides a decision tree that makes the consequences of an action indirect. Psychology and moral intuition show that we feel less moral culpability when distanced from the consequences of an action.
• A formal system allows us to play a role, and satisfy our conscience by pointing to the general efficacy of the system.
• A formal system limits the actions we can take to generate a personally satisfactory moral outcome, thereby increasing our moral distance from the consequences by dint of sheer powerlessness.
• Focusing on these three issues, they boil down to indirect consequences, scapegoat, and powerlessness.
• What would it look like if we modified the system? Part of the point is the "separation of powers" idea.
• Go to more judge directed system like we see in some civil law countries?
• Is there a way to maintain balancing benefits of a formal system while making actors feel more responsible for outcomes.
• What is the point of all this? Impetus for change comes from within a system, we want to make injustice as morally unacceptable as possible for the actors
• Be sure to emphasize that this is not hiding responsibility and tricking people, but simply making it easier for some to ignore.

"But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions." - James Madison (Federalist No.51)

Topic Modification - Madison was discussing ways to maintain "the necessary partition of power among the several departments" of the government. He was trying to reason out a structural what he saw as the human tendency to self-aggrandize. The solution discussed in his brief essay was