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 basic requirement of legal decision making forces us to look for a conception of 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. We are likewise unable to set objective goals to measure our system in terms of. Law is bound to 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 administrator.

Focusing on the Individual as a Replacement for Rules

Individual Responsibility for Legal Outcomes

(Section Under Construction)

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.

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.

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) By placing the responsibility for legal outcomes on the individual legal actor, 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 (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.

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) • Our truth deciders must have the responsibility to monitor one another to ensure that they are taking this duty with the seriousness required.

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. * 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, 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 force debate

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.

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