Law in Contemporary Society

The Comfort of Homogeneity

Reality is subject to human perception

Justice Holmes said, “certainty generally is illusion and repose is not the destiny of man.” However, let us broaden this phrase. Suppose we begin with the (hardly novel) premise that reality is subjective to our perception. Casting aside the irony of using objective, scientific proof to show all is subjective to our mind’s construction, neurologists have shown that one way humans experience the world is through memory. This is particularly vivid in time perception, where during moments of intense trauma or concentration, we experience time more slowly as a result of more memories. Although our minds reconstruct the recent past using sensory stimuli very quickly, this process nonetheless means that even seemingly innocuous facts such as time become subjective.

"Innocuous" is not the word you wanted.

I don't understand the claim here. Are you denying that time and space exist "out there," independent of our perception of them? Does the world become more yellow and less blue when I put on my yellow lenses before going outside? If the perception of someone inside a car that is crashing experiences slower time, has time also slowed down for the pedestrian who is watching the accident from a safe distance?

Is our perception subjective, or are facts themselves subjective?

If subjective perception matters, does it affect only our view of facts or can they affect the facts themselves? In the Asch Conformity Experiments, psychologists have shown that the vast majority of college students in their study sample chose to conform to a wrong answer at least once during their series of experiments. The tests were factual, such as which of three lines most matched the length of a given line. The control experiment showed that very few people actually got the question wrong; however, when everyone else in the study had the same different answer, the students overwhelmingly chose to go with the group.

This doesn't show that any facts have changed, right? Opinions have changed, not facts.

At least one troubling result of the study is that some students were able to identify the correct answer and yet chose to give the wrong one. If there was a dissenting minority, then the proportion of students choosing to give the wrong answer decreased dramatically. However, perhaps even more troubling than choosing a wrong choice on purpose is the lack of awareness of how one's choice came to be: Some subjects who answered incorrectly exhibited cognitive dissonance, citing that they had simply mistaken the answer or had poor vision. If they chose the incorrect answer without knowing their rationale, did some students truly believe that they had chosen the correct answer? Did they think that they had found the correct facts? Would they have continued thinking they were correct had the researchers not informed them of their wrong answer?

Problems with legal uniformity

If our sense of “fact” is thus unreliable, the implication of law by unanimous decision becomes extremely troublesome. Under modern criminal and civil law, American society accepts guilt if a purportedly representative group of citizens agrees unanimously.

Unanimity is not always required in civil adjudication.

So why is consensus so important to legal legitimacy?

Consensus is not necessarily important to legitimacy. ("Legal legitimacy" is not sensible usage.) The State cannot impose criminal punishment and degradation without a consensus of citizens. That began as a principle of fact-finding: the jury were witnesses who knew. Now, as a result of the process by which the jury became factually naive and politically entitled to acquit against the weight of the evidence, it has become part of the system of constitutional protectiveness for individual liberty, a procedure for the vindication of rights from oppression, not a statement about fact-finding.

And why choose a system which accepts some doubt into its standard of guilt, but deflects discomfort by using unanimous jury verdicts?

Both the requirement of proof beyond a reasonable doubt and the requirement of jury unanimity coexisting with power to acquit against the weight of the evidence are protections for individual liberty. Eighteenth-century Americans had plenty of experience with the power of the jury to nullify laws held to be unconstitutional and repugnant by the mass of the locality. So did twentieth-century ones, for good as well as ill. The generation that framed our constitutional arrangements had particular confidence in the reliance on juries to protect liberty against despotism. Subsequent generations of lawyers have varied in their degree of belief in the value of these institutions, but no generation of American lawyers has lived and died without witnessing sterling examples of their value. Far more than these powers are exercised, they are considered by prosecutors and other wielders of the public force.

This desire for conformity – while imposed onto juries by the legal system – seems to have some grounds in social behavior, as demonstrated by the Asch Experiment. Practically however, this creates problems because perception of fact - as a recent study into the Scott v. Harris case has found - depends on your background, your views as shaped by social forces, and more. While Scalia claimed that the videotape of the high-speed chase was dispositive that the plaintiff was a danger to others on the road, the experimental subjects were not unanimous on the issue. If this were a jury scenario, and almost everyone chose to give one particular answer, would the others be pressured enough into finding a fact that either they did not believe in or that they were unaware they were choosing? Unfortunately, Asch does not explore further the dynamics of getting a group to a unanimous decision. However, it seems that the jury system, in its pursuit of a unanimous decision on findings of facts, seeks to impose a sort of homogeneity of opinion upon its members. If the jury members cannot agree, this is not taken as a sign that there is reasonable doubt. Instead, that twelve persons selected by the two opposing counsels hold two conflicting, unwavering opinions is merely a sign that the jury malfunctioned in a way, and the trial must be conducted again, so that another group may make a unanimous and correct verdict. Why is this disagreement not taken as doubt?

If it were doubt, the jurors would agree that it was doubt, and that would bring the matter to an end. It is failure of deliberation, which is something else.

It seems that the American legal system has a wider systemic obsession with consistency and homogenous application. However, there is a logical oddity. Courts value homogeneity of application enforced by hierarchy regarding questions of federal law: all courts must follow binding Supreme Court precedent. All courts must follow superior courts' and their own previous decisions as binding. What does this consistency achieve and why are inconsistent results not acceptable? While there is certainly a strong argument for administrability and equal treatment, there is at least an equally strong argument for justice in the individual case. Is this sort of flexibility so dangerous for the legal system to tolerate?

What's the logical oddity?

For example, what would happen if each court, regardless of where it sat on the hierarchy, were allowed its own opinions? Certainly, Holmes's conception of legal study as prediction would fall apart since it would be nearly impossible to predict given no guidelines. Would injustice result in the individual case if courts were allowed to decide without external imposition? The idea that all parties would flock to one particularly beneficial place seems to implicate that that forum (or everyone else) is somehow engaged in contrary practice. And if the discomfort comes from contrary practice, then the underlying desire must be one of consistency rather than individual justice.

This argument makes no sense to me as written. Individual justice involves application of principles to facts. Because multiple sets of principles must be applied, in different procedural contexts, a trial court has many opportunities in most cases to make decisions intended to further justice in the specific situation, without implicating any threat to legal uniformity. Why uniformity of the exceedingly general kind achievable through a hierarchy in which the Supreme Court determines on argument and opinion in a Justice's lifetime less than the number of cases decided in a busy judicial district in a year is supposed to prevent efforts to do justice in individual cases I do not understand. Is it your impression that a trial judge is likely to feel continually, or even frequently, that injustice is done in her courtroom because she cannot reverse decisions made by the Court of Appeals or the Supreme Court?

An obvious cure for this fear is to impose strict liability for all acts which offend statutory or common law schemes. Surely by giving everyone the same exact punishment regardless of circumstances, you are ensuring maximum consistency and efficiency.

I don't understand what this means. Only a small part of the law is penal, and "strict liability" doesn't mean what you seem to want it to mean.

However, courts are reluctant to do this either.

Do what? Rewrite laws?

This contradiction of seeking consistency and then rejecting it seems baffling at best.

The route to the improvement of this essay is to edit the outline very carefully. You need to determine clearly what the central idea is that you're trying to get across to the reader. That idea needs to be stated, succinctly, at the outset. Then illustrations, arguments, explanations, depictions of context should flesh out the idea for the reader in succeeding linked points, until a conclusion can show the reader a direction of further thinking—implications, possibilities, routes to overcome difficulties—disclosed to her by the laying out of your idea.

-- By HelenZhu


Webs Webs

r3 - 22 Jan 2013 - 20:10:27 - IanSullivan
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
Syndicate this site RSSATOM