Paper Title

-- By TheodoreSmith - 09 Feb 2008

Topic Sentence

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.

Outline

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 nature of the magical legal ritual has been improved upon and replaced by a scientific and rational set of deterministic legal rules.

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

Setting a Course: The Difficulty of Assigning Heuristics to Legal Outcomes

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.

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

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

(Section under construction) 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

(Section under construction)

A Place for Legal Rules

(Section under construction)

• 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

Conclusion

Notes (scrap writings I am keeping here as I edit)

The development of modern law has generally been viewed (by whom? this is a terrible sentence!) as the development of a rational system of interconnected legal rules. In "Modern Legal Magic," Jerome Frank outlines a transition from the ritualistic _ of the ordeal, to the development of a system of law based on the precepts of logical reasoning.

Although this shift in the basis of legal judgment...

Frank's criticism of the modern reliance on systems of legal rules

Although Frank holds out some hope that justice will be done If we are unable to reach a just and consistent outcome through a system of legal rules, we are If justice and consistency cannot be effected through the use of a deterministic system of legal rules, we must

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, I will briefly _ three goals arguably central to the success of any legal system: consistency of legal judgment, the efficient production of utility, and adherence to the moral expectations of the citizenry. 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. Although this 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 refined legal rules. _ _ the very goals of law are dependent on the human factors that make a scientific analysis untenable. 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 . If we accept Frank's reasoning, this solution cannot possibly succeed. Law itself is a deeply human activity, and the further refinement of a mechanistic system of reasoning can only mask the __. If a scientific system of legal rules is unable to eliminate the ^^human factors^^, it would follow that the development of a just legal system must focus on the moral and intellectual development.

We are focusing on producing scientists when we desperately need artists. Note that legal rules do serve some kind of normative function.

# * Set ALLOWTOPICVIEW = TWikiAdminGroup, TheodoreSmith

Note: TWiki has strict formatting rules. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of that line. If you wish to give access to any other users simply add them to the comma separated list