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?