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CONFLICT version 3: | |
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< | Swimming in transcendental nonsense | >
> | Then and Now: Two Perspectives on our Legal System | | | | |
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> | I grew increasingly unsettled while reading Transcendental Nonsense and the Functional Approach. Upon reflection, I think the piece elicited discomfort because Cohen made me realize that I have been growing gradually more cynical in my outlook on the law. As a child, I regarded the law as synonymous with justice and morality. Yet starting law school and studying the system that I had thought functioned to protect the innocent and promote fairness made me increasingly skeptical about whether it actually does so. Ultimately, Transcendental Nonsense made me conscious of the fact that I currently hold two disparate views of the law – and this realization left me uneasy. | | | | |
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< | Felix Cohen’s assertion that “legal concepts are supernatural entities which do not have a verifiable existence except to the eyes of faith,” makes more sense than anything else I’ve read thus far in law school. That may be because much of what I have read makes no sense at all. Most legal doctrine doesn’t square with common sense, with my innate hunches, because, like Cohen says, the law is neither based in morality nor logic. | >
> | My first perspective on the law – that it is a vehicle to effect meaningful change and to advocate on behalf of those who need it most – may seem naïve, but this was the perspective that was informed by my only actual experience with a lawyer. My sisters and I were raised by a mother who was neglectful at best, abusive at worst. The promise of escape came when I was ten years old and my father filed for divorce. I recall how scared I was of being taken from my dad, how helpless I felt at my fate being decided by strangers in this world of courtrooms, filled with lawyers and judges who spoke a language I couldn’t understand. | | | | |
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< | I’m not a saint, but I consider myself a ethically principled person. I don’t steal, I don’t cheat, I don’t hurt other people. I also think I am logical-a left-brained, sudoku-addicted finance major who actually liked studying for the LSAT logic games. I applied to law school to learn and ultimately enter a field grounded in logical decision-making and the pursuit of righteousness. Yet, so many classes have made me uneasy, in the sense that the doctrines being taught are grounded in neither. | >
> | I distinctly remember the day when my fears were quelled. Someone stepped in to help, someone who promised that my voice would be heard in that world of courtrooms, who promised that she would represent my sisters and me and protect our interests. When the proceedings had ended, I remember thinking that my lawyer kept her promise. My dad had full custody of my sisters and me, and we were finally safe. | | | | |
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< | Good Samaritan Law is void of morality | >
> | I knew my lawyer only briefly, and never saw her again following the settlement of my parents' divorce, but the difference she made in my life is virtually indescribable. This advocate – who made sure that my voice was heard when I couldn’t use it myself – freed me from the circumstances of my childhood and changed the course of my life entirely. And so it was this experience that informed my initial understanding of our legal system as synonymous with advocacy and justice. | | | | |
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< | Each course has taught me doctrines I completely disagree with on moral grounds, yet the decisions crafting these doctrines are rife with justifications for them; like Cohen says, they are only based in “the eyes of faith.” | >
> | My second perspective on the law is different and more cynical. Interestingly, this is the perspective that has been molded by my experiences thus far in law school, learning the intricacies of the very system I previously regarded as infallible. I struggled with reading and speaking in the legal jargon that fills the pages of every judicial opinion that we read, mostly comprised of words and rules that meant nothing to me just a few months ago. I began to wonder where and how these words and rules originated. Moreover, I wondered why the words are regarded as meaningful, why the rules are regarded as self-evident truisms. Cohen’s piece gave form and coherence to my nebulous thoughts: the magic ‘solving words’ of legal problems are hollow transcendental nonsense; the ‘rules’ are self-referential creations by the law. Thus there is inherent circularity in couching legal arguments in these meaningless terms. Cohen made me acutely aware of the disheartening implication of my other, more jaded musings about our legal system: courts hide behind a barrage of transcendental nonsense while arbitrary factors and undisclosed agendas potentially drive much of their decision-making. | | | | |
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< | Both civil law and criminal law excuse bystanders who fail to help someone in need.
for example, in Pope v. Statehttp://scholar.google.com/scholar_case?case=571071934417681053&hl=en&as_sdt=2&as_vis=1&oi=scholarr, a woman took a mother and child into her house, and witnessed the mother beat her newborn to death without interfering. She was acquitted of all criminal charges. The court based its reasoning on the fact that Pope did not fall neatly into one of its four categories of people responsible for another party. This legal rule is clearly one, in line with Cohen’s proposition, that isn’t based on logic or morality. It seems highly logical, and undoubtedly moral, for someone to assist an innocent baby from being battered, whether by taking the child, restraining the mother, or, to avoid harm to self, calling the police. | >
> | After realizing that I do in fact have two perspectives on the law that are seemingly at odds with each other, I began wondering how studying a system I revered as a child could have diminished my reverence for it so rapidly. I think that an explanation lies in the fact that when I was a child, my view of the law was not colored by the transcendental nonsense that pervades my law school studies and informs my more recently formed perspective on our legal system. As a child, the contours of my understanding were shaped by functionalism. | | | | |
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< | Courts base the “no duty to rescue” idea on the basis that sometimes, a person may endanger him or herself by attempting to save another. Under this rationale, the rule concededly makes sense in some situations; it seems ludicrous to hold a person liable for not jumping in front of a bullet or moving car for another, regardless of their relationship to that person. However, should that same person be free from duty while watching a child drown in a pool as they leisurely stroll past? The court fashions a “one-size-fits-all” rule, while different scenarios demand a case-by-case analysis. The jurisprudence of good samaritan law is abhorrent in that it places paramount importance on judicial administration, while being completely divorced from morality. | >
> | More specifically, my first understanding of our legal system was created by the answers that my lawyer gave me when I asked her questions. While I don’t have memories of specific conversations with her, I know that she was able to convey clearly to me how the judge would decide which of my parents my sisters and I would live with. She was straightforward; she allayed my fears by telling me exactly what was going to transpire in the courtroom. I see now that my attorney was using Cohen’s functional approach to law. Her language was stripped of nonsensical legal terms that mean nothing to a child. My attorney made the world of courtrooms and judges understandable to a ten year old by distilling this foreign universe down to how it would actually, tangibly impact my sisters and me. In so doing she eased my fear at having my fate decided by a process I could not control. | | | | |
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< | Many civil law doctrines have no rational basis
In civil proceedings there are also doctrines devoid of ethical or logical considerations. The modern conception of personal jurisdiction is one of these “supernatural entities,” based on nothing but judge discretion. In Goodyear v. Brownhttp://scholar.google.com/scholar_case?case=6139328910784593631&hl=en&as_sdt=2&as_vis=1&oi=scholarr, for example, two boys were killed in an automobile accident in Paris. Their parents, citizens of North Carolina, were not allowed to file suit there based on the ephemeral notion of “minimum contacts.” Goodyear, a multi-billion dollar corporation, has the means and financial ability to send lawyers anywhere to try a case; a trial in North Carolina would hardly burden the company. Meanwhile, these parents, reeling from the death of their sons, cannot bring suit where they live. Other jurisdiction cases mandate that a case can be tried where the injury occurred. Just because the boys were killed in Paris, can’t the injury have occurred in their home state to a degree? Is that not where their family and friends mourn their death? In shaping the legal concept of personal jurisdiction, the court has drawn strict lines which make sense only in certain cases.
Good samaritan law and personal jurisdiction are just two of the doctrines which, applied in some scenarios, are not only unjust, but reprehensible. In class Eben brought up efficient breach, and how it ignores promise-keeping, a socially valuable trait. The takings clause, which mandates a government need only to compensate a victim when there is a full diminution in value is yet another example. According to current takings law, reducing the value of a home from $1 million to $100 does not require compensation under the fifth amendment; the property must be rendered entirely useless. This rule makes no sense considering basic supply-and-demand market economics, nor is it ethical. Moreover, it leaves the court as ultimate arbiters of the value of property, when certainly market valuation is out of their area of expertise, and, in itself, an assessment rife with mere preponderance.
Don't Start Believin'
Aristotle said “the law is reason free from passion.” The amoral character of legal principles showcases the truth of this statement. Most, if not all, doctrines I have learned in law school consist of rules that are too rigid. Granted, they do make judicial proceedings easier and faster. However, they fail to recognize people and situations on an individual basis. The social outcomes of decisions are not considered, and instead these decisions are based on transient principles. We need to stop being the “eyes of faith” that pay homage to these rules. Without our faith, these concepts will lose relevance, and hopefully morality will find its way into the law.
If legal concepts continue to be so removed from ethical and reasonable considerations, the law will definitely continue to be a weak form of social control. With the law in its current formalistic state, maybe that is not such a bad thing.
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> | And so perhaps the key to improving our legal system so that it is synonymous with justice, so that it truly does reflect my childhood conception of it, is for more lawyers and more judges to speak and write as if informing a child, as my attorney did for me so many years ago. After all, children do not care about or revere meaningless legal principles and concepts – children seek functional answers. Their inquiries are outcome-based. A shift to this outcome-oriented functionalism in conjunction with a disregard for hollow, amoral legal principles is the only way I can see to bring my childhood perception of the law into accord with reality. A transformation of this type will make room for ethical appraisal of our legal system, and in turn, perhaps someday it will be guided by human values and conceptions of morality. Only then will our legal system actually be worthy of my childhood reverence for it. | | | \ No newline at end of file |
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