Wednesday, February 6, 2013

stop praising dust

Jurisprudential theories...are generally categorized according to the element of their subjects they take to be essential.  A legal theory that stresses the logical consistency of judicial opinions is called formalist; a theory that emphasizes their social consequences is called utilitarian; a theory that regards them as reflections of the circumstances in which they were written is called historicist.  The problem with all such theories is that they single out one aspect of the law as the essential aspect...A case comes to court as a unique fact situation...There is the imperative to find the just result in this particular case.  There is the imperative to find the result that will be consistent with the results reached in analogous cases in the past.  There is the imperative to find the result that, generalized across many similar cases, will be most beneficial to society as a whole...There are also, though less explicitly acknowledged, the desire to secure the outcome most congenial to the judge's own politics; the desire to use the case to bend legal doctrine so that it will conform better with changes and social standards and conditions; and the desire to punish the wicked and excuse the good, and to redistribute costs from parties who can't afford parties who can...
Hovering over this whole unpredictable weather pattern--all of which is already in motion, as it were, before the particular case at hand ever arises--is a single meta-imperative.  This is the imperative not to let it appear as though any one of these lesser imperatives has decided the case at the blatant expense of the others...[The court] wants the law to run in a politically desirable direction, but it does not what to be caught appearing to bend an anachronistic legal doctrine in order to compel a politically correct result.
There is also...,within each of these competing imperatives, the problem of deciding what counts as relevant within that particular discourse and what does not...[until it] ends with the question of what counts as a "just result"...Principles are malleable...When there are no bones, anybody can carve a goose.
--From The Metaphysical Club by Louis Menand (my emphases)

I ask:  why not?  Why not blatantly adjust the law to fit contemporary facts?  I can understand the lure of precedent, that a case has to stand on previous decisions in order to fend off arguments against it.  But if the law is, like the Constitution, a living document--and it is--then in the case of deciding a law based on newer, more modern ways of looking at people--whether or not it's legal for gay couples to marry, for instance--why not broker a whole new decision in which the case is decided on the human merits, the fact that human love is the imperative, in blatant disregard of anachronistic laws and public feeling?  Why praise the dust of dead decisions?  In such an instance, we might have avoided a Plessy vs. Ferguson or a Citizens United vs. Federal Elections Commission:  common humanity, once acknowledged, trumps all other imperatives (I admit I'm ignoring the specific counterarguments, that at the time of Plessy blacks weren't completely afforded their humanity--at least they weren't "as human" as whites--and for Citizens United, what determines humanity).

Here, I think, is why not:  Because I am human and prone to determine things by what Menand calls "the desire to secure the outcome most congenial to the judge's own politics."  I can't help but look from my perspective as a liberal male who wants to share the cultural wealth he has with others who have need of it but can't reach it and decide in favor of them, even at my own cost.  But I can't be trusted with that decision. It's the same reason we don't allow victims or their families to determine the punishment against their offenders:  some will undercompensate, some will overcompensate, and there isn't a happy medium when it comes to punishment.  If the meta-imperative is malleable then we all get our own cuts of goose but someone ends up with the piece he or she can't eat or isn't enough.  I don't like this way of deciding law; but, like Winston Churchill wrote about democracy, it's the worst  except for all the others that have been tried.

No comments:

Post a Comment