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KensingNgFirstPaper 4 - 23 Apr 2012 - Main.KensingNg
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< | Objectivism in Legal Principles
Apologies for any errors in the formatting of this piece. I created it wrongly, and probably lost all kinds of necessary bits. I think I got most of them back in by looking at other papers, but just in case…
v. 1
(My Understanding Of) Modern Legal Magic
In Modern Legal Magic, Jerome Frank asserts that the modern trial system operates not on objective legal principles, but rather on a form of legal magic where principles are used to justify decisions that are made on other grounds, such as the judge's own predispositions. He draws a comparison between the study of law and the study of history, noting that historians have long admitted to a “conjectural and subjective nature” and suggesting that this is probably also true for lawyers, even if they don't like to admit it. Once we establish that judges and lawyers are driven by conjecture and subjectivism, it becomes clear that courts cannot operate on objective legal standards. Even if there does exist an objective legal standard, it has no teeth because decisions are made on the basis of subjective personal beliefs rather than objective standards.
Legal Principles Are Not Objective…
The idea of objective legal principles can be hard to swallow. Just looking over America's short history, we can see how legal ideas have changed. Two of the most famous cases from Supreme Court history are Plessy v. Ferguson and Brown v. Board of Education. Plessy introduced the idea of “separate but equal” in 1896 and Brown declared it unconstitutional in 1954. After Plessy, people believed that objective legal principles held that “separate but equal” was true; after Brown, objective legal principles appeared to find the doctrine false. It seems silly to suggest that courts were just mislead about an obvious truth for a period of sixty years (or, for that matter, that they're still mislead to this day). A better explanation might be that both the acceptance and rejection of “separate but equal” were based on the attitudes of the time periods in which they were decided, rather than objective legal principles.
… But They May Be Subjective.
The idea that there is no objective legal principle may indeed be true; however, even if there are no objective legal principles there may be subjective legal principles which people treat as objective. These subjective legal principles are based off judicial decisions, which are in turn based off of attitudes for the time. While it is possible that some judicial decisions may not be in tune with the prevailing attitudes, it seems likely that the majority would. Elected judges or judges appointed by elected officials are still chosen (directly or indirectly) by the populace as a whole. This is why you would be hard pressed to find a judge who supports segregation now; although a few may exist, they are drowned out by the large number who oppose it. In this manner, a set of legal principles may be read out of the stock of recent judicial decisions (or old legal decisions which society, through judges, accepts as valid). This set of legal principles is by no means consistent: it changes with society. Rather than being objective, it is subjective.
Judges May Act On Their Whims…
Changing gears for a second, let us consider how courts make their decisions. It has been repeatedly asserted that courts are largely subject to the whims and predispositions of the parties involved. Judges decide issues based on whom they want to win, rather than who should win according to any hypothetical notions of right and wrong. There is the example of the Supreme Court regularly denying death sentence appeals without reading the documents; the denials are not based on any actual law, but rather on the fact that the justices simply didn't want to deal with any more cases that day. Through this line of logic, it appears as if all legal principles, objective and subjective alike, are cast aside in favor of whimsy.
… But Who Controls Those Whims?
Yet it's important to remember that legal principles are ultimately a part of legal education. Transitory and baseless though they may be, they are still taught to all potential lawyers and judges in law school. These principles then become part of the life experiences of the law students, and when they finally become judges and lawyers it will affect their judgment. They might cite to society's current set of legal principles as a means to lend more credence to their decision, or to impress other members of the legal profession, or because at some level they have convinced themselves that the legal principles which they believe in are true and objective. In this way, a set of legal principles does affect judicial decisions. It does so not because it's objective or unchanging or even valid, but rather because it is intricately tied with society's beliefs, which ultimately influence the mindsets of judges who make decisions based on their personal beliefs.
Concluding Thoughts And Questions
The emperor may not have any clothes, but if everyone believes he has clothes than his clothing exists, if only in people’s minds. And because things are what they do, not what they’re called, subjective principles of law do create a grounding for understanding legal decisions, even if they aren’t consistent over the ages.
Did I correctly understand Jerome Frank? If not, did I at least have valid ideas pulled from class discussion?
Does the idea that principles help create decisions become circular when it’s suggested that decisions create principles?
Is there something more profound to be drawn from this idea? Is it even going in the right direction?
Am I missing important bits from the template?
It's difficult to
understand this draft, because it uses "objective" and "subjective"
in ways that don't seem to bear any relation to their usual meaning.
"Objective" seems to mean "eternal and impervious to all change," so
that any legal proposition is "not objective" if it is modifiable by
judges. Thus the entirety of the common law consists of
"not-objective" principles (which I think is used here as a synonym
for both "rules" and "standards" as they are ordinarily
professionally used, despite the differences). Why high-level
constitutional law would be a good place to look for eternal
unchanging rules, I have no idea, but the very complex and
not-very-clear example of Plessy and Brown appears to teach us
that constitutional law in the US, like all of common law, is
"not-objective."
"Subjective," however, seems to mean "arbitrary." Why the world
should be divided into "principles" that are eternally unchangeable
without regard to social epoch or situation, on the one hand, or
arbitrary "whimsy" on the other isn't explained. Most jurisprudence
presumes that it is required to explain only phenomena falling in
between these extremes, which is assumed to be all practicably
occurring phenomena.
The root of that argument appears to lie in a psychology that denies
human conduct is informed by both primary unconscious and secondary
rational processes. Radical lateralization has taken place, without
so much as a whisper of corpus callosum in the house. Everything is
either a left-brain algorithm or a whim of the right-brain. If
judges are not performing an algebra that never changes they are
rioting in an orgy of rulelessness.
It seems to me we want to back up to the first step. What is the
idea at the center of the draft? Can we state it without requiring a
primitive or reductive psychology on which to rest it? Can we use
terms in their ordinary senses to express the idea, or do we need to
conscript for some reason language with precise other meanings to
serve our purpose? Can we develop the idea at the center of the
draft without having to commit ourselves to a strong separation
between "politics" and "law" in all cases, or is this a theory that
requires us to believe that law is or should be a formal system
independent of other social processes that accumulate and distribute
power? | >
> | Legal Decision-Making | | | | |
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> | The Role of Legal Principles
Many classes in law school (although not all) rest at least partially on the idea that judges decide law based on legal principles that can be known and relied upon. Thus, students learn by studying case law, determining how cases have gone in the past as a way of predicting how cases will go in the future. Inherent in this assumption is the idea that there are set legal concepts which pass unchanged over time; we simply need to determine what these concepts are and then apply them to new cases. This conception of legal decision-making is especially attractive because it promises certainty and reliability in the law.
Legal Principles Are Not Rigidly Fixed.
However, the idea that law is an unchanging monolith that judges strive to discover and apply is a seriously flawed concept. One does not need to look far to find important legal concepts that have either changed significantly over time, or that are themselves recent innovations. English law did not recognize a right to appeal until 1927; felony defendants were not allowed counsel until the end of the 19th century; US law found that segregation was not incompatible with equality until 1954. Our understanding of legal principles is constantly changing, and it seems unlikely that ideas that we now take as axiomatic were simply "undiscovered" for hundreds of years.
The Role of Personal Preferences
Another potential source of legal decisions is the personal preferences of judges. Instead of relying on legal principles to guide their decisions, judges would make decisions based on their whims and fancies; some people have described this as deciding "based on what they had for breakfast this morning". Judges would look at a case and then decide based on whatever they themselves thought should happen. This approach paints the law as an almost arbitrary force, making decisions based on the whims of a few people. Yet, in a sense, this view is unassailable. Insofar as the judges have the power to make decisions, they are going to be subject to personal prejudices. The issue then becomes to what degree judges resist the temptation to make decisions based on their personal feelings toward a given case, as opposed to relying on other factors such as the hypothetical static legal principles mentioned above.
Judges' Personal Preferences Are Informed By Legal Principles
Even if we assume that most judges let their decisions be steered fully by their personal preferences, we should consider where the personal preferences come from. The subconscious processes in a judge's mind may include a wide variety of life experiences, but one common experience to all judges is law school (additionally, judges may be more apt to rely on their law school experience when making decisions regarding the law). The principles taught in law schools, therefore, at least play a role in affecting judge's decisions. Furthermore, if the legal principles are related to social mores, then the principles would have an even greater role in determining how a judge will make his or her decision, even if we assume that they are using personal preferences. It should be noted that it does not matter much whether the principles create social mores or vice versa, but simply whether or not the legal principles are similar to the prevailing social mores.
Finding A Happy Medium
The either-or dichotomy of rigid legal principles versus whimsical and arbitrary personal preferences appears to be insufficient for accurately describing the processes behind legal decision-making. Instead, a better option may be to combine parts of each idea. Yes, judges are informed by their personal preferences; however, as mentioned in the previous section, these preferences are to a large degree shaped by legal principles that, although not constant over time, are nonetheless somewhat uniform in a given time period. These legal principles may be the product of culture and therefore subject to changing social mores, but it is notable that because they are often perceived to be absolute, they are taught and handled in a way that encourages judges to apply them as if they are absolute.
Certainly not all judges handle the law this way, but it is no stretch of the imagination to assume that a good number of judges would have sufficiently absorbed the lessons of law school to believe that there are rigid legal principles. For these judges, the conscious adherence to supposedly rigid principle might be able to overcome subconscious preferences, or the principles might even themselves become the most powerful subconscious desires. The end result is that judges end up subverting their personal preferences to the idea of rigid legal principles, even though such principles exist only in the judges' minds. Furthermore, these legal principles, while certainly not static, nonetheless provide a fairly reliable basis for predicting the outcome of cases in the short term. |
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KensingNgFirstPaper 3 - 15 Apr 2012 - Main.EbenMoglen
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| META TOPICPARENT | name="FirstPaper" |
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| | | Is there something more profound to be drawn from this idea? Is it even going in the right direction?
Am I missing important bits from the template?
\ No newline at end of file | |
>
> | It's difficult to
understand this draft, because it uses "objective" and "subjective"
in ways that don't seem to bear any relation to their usual meaning.
"Objective" seems to mean "eternal and impervious to all change," so
that any legal proposition is "not objective" if it is modifiable by
judges. Thus the entirety of the common law consists of
"not-objective" principles (which I think is used here as a synonym
for both "rules" and "standards" as they are ordinarily
professionally used, despite the differences). Why high-level
constitutional law would be a good place to look for eternal
unchanging rules, I have no idea, but the very complex and
not-very-clear example of Plessy and Brown appears to teach us
that constitutional law in the US, like all of common law, is
"not-objective."
"Subjective," however, seems to mean "arbitrary." Why the world
should be divided into "principles" that are eternally unchangeable
without regard to social epoch or situation, on the one hand, or
arbitrary "whimsy" on the other isn't explained. Most jurisprudence
presumes that it is required to explain only phenomena falling in
between these extremes, which is assumed to be all practicably
occurring phenomena.
The root of that argument appears to lie in a psychology that denies
human conduct is informed by both primary unconscious and secondary
rational processes. Radical lateralization has taken place, without
so much as a whisper of corpus callosum in the house. Everything is
either a left-brain algorithm or a whim of the right-brain. If
judges are not performing an algebra that never changes they are
rioting in an orgy of rulelessness.
It seems to me we want to back up to the first step. What is the
idea at the center of the draft? Can we state it without requiring a
primitive or reductive psychology on which to rest it? Can we use
terms in their ordinary senses to express the idea, or do we need to
conscript for some reason language with precise other meanings to
serve our purpose? Can we develop the idea at the center of the
draft without having to commit ourselves to a strong separation
between "politics" and "law" in all cases, or is this a theory that
requires us to believe that law is or should be a formal system
independent of other social processes that accumulate and distribute
power?
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KensingNgFirstPaper 2 - 15 Feb 2012 - Main.KensingNg
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| META TOPICPARENT | name="FirstPaper" |
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<
< | Title
Professor Eben Moglen suggests that we are a community under occupation, co-existing with a grading system. This paper presents an overview of how the so-called occupation perpetuates itself and the tools students have to resist. | >
> | Objectivism in Legal Principles
Apologies for any errors in the formatting of this piece. I created it wrongly, and probably lost all kinds of necessary bits. I think I got most of them back in by looking at other papers, but just in case…
v. 1 | | | | |
<
< | Topic | | | | |
<
< | Words go here | >
> | (My Understanding Of) Modern Legal Magic
In Modern Legal Magic, Jerome Frank asserts that the modern trial system operates not on objective legal principles, but rather on a form of legal magic where principles are used to justify decisions that are made on other grounds, such as the judge's own predispositions. He draws a comparison between the study of law and the study of history, noting that historians have long admitted to a “conjectural and subjective nature” and suggesting that this is probably also true for lawyers, even if they don't like to admit it. Once we establish that judges and lawyers are driven by conjecture and subjectivism, it becomes clear that courts cannot operate on objective legal standards. Even if there does exist an objective legal standard, it has no teeth because decisions are made on the basis of subjective personal beliefs rather than objective standards.
Legal Principles Are Not Objective…
The idea of objective legal principles can be hard to swallow. Just looking over America's short history, we can see how legal ideas have changed. Two of the most famous cases from Supreme Court history are Plessy v. Ferguson and Brown v. Board of Education. Plessy introduced the idea of “separate but equal” in 1896 and Brown declared it unconstitutional in 1954. After Plessy, people believed that objective legal principles held that “separate but equal” was true; after Brown, objective legal principles appeared to find the doctrine false. It seems silly to suggest that courts were just mislead about an obvious truth for a period of sixty years (or, for that matter, that they're still mislead to this day). A better explanation might be that both the acceptance and rejection of “separate but equal” were based on the attitudes of the time periods in which they were decided, rather than objective legal principles.
… But They May Be Subjective.
The idea that there is no objective legal principle may indeed be true; however, even if there are no objective legal principles there may be subjective legal principles which people treat as objective. These subjective legal principles are based off judicial decisions, which are in turn based off of attitudes for the time. While it is possible that some judicial decisions may not be in tune with the prevailing attitudes, it seems likely that the majority would. Elected judges or judges appointed by elected officials are still chosen (directly or indirectly) by the populace as a whole. This is why you would be hard pressed to find a judge who supports segregation now; although a few may exist, they are drowned out by the large number who oppose it. In this manner, a set of legal principles may be read out of the stock of recent judicial decisions (or old legal decisions which society, through judges, accepts as valid). This set of legal principles is by no means consistent: it changes with society. Rather than being objective, it is subjective.
Judges May Act On Their Whims…
Changing gears for a second, let us consider how courts make their decisions. It has been repeatedly asserted that courts are largely subject to the whims and predispositions of the parties involved. Judges decide issues based on whom they want to win, rather than who should win according to any hypothetical notions of right and wrong. There is the example of the Supreme Court regularly denying death sentence appeals without reading the documents; the denials are not based on any actual law, but rather on the fact that the justices simply didn't want to deal with any more cases that day. Through this line of logic, it appears as if all legal principles, objective and subjective alike, are cast aside in favor of whimsy.
… But Who Controls Those Whims?
Yet it's important to remember that legal principles are ultimately a part of legal education. Transitory and baseless though they may be, they are still taught to all potential lawyers and judges in law school. These principles then become part of the life experiences of the law students, and when they finally become judges and lawyers it will affect their judgment. They might cite to society's current set of legal principles as a means to lend more credence to their decision, or to impress other members of the legal profession, or because at some level they have convinced themselves that the legal principles which they believe in are true and objective. In this way, a set of legal principles does affect judicial decisions. It does so not because it's objective or unchanging or even valid, but rather because it is intricately tied with society's beliefs, which ultimately influence the mindsets of judges who make decisions based on their personal beliefs.
Concluding Thoughts And Questions
The emperor may not have any clothes, but if everyone believes he has clothes than his clothing exists, if only in people’s minds. And because things are what they do, not what they’re called, subjective principles of law do create a grounding for understanding legal decisions, even if they aren’t consistent over the ages.
Did I correctly understand Jerome Frank? If not, did I at least have valid ideas pulled from class discussion?
Does the idea that principles help create decisions become circular when it’s suggested that decisions create principles?
Is there something more profound to be drawn from this idea? Is it even going in the right direction?
Am I missing important bits from the template? | | | \ No newline at end of file |
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