AOWL CONTENDER MATCH: zygote (4-1) vs. UnbornBuddha (5-2) [zygote wins, 4-1.]

zygote · 12-04-2014, 09:53 PM

A CLS CRITIQUE OF FORMALISM/OBJECTIVISM IN COMMON LAW JURISPRUDENCE.

Justice should not be convenient.
Formalism is the rigid application interpretation of the law through precedent. In my view, this is simple expedience.
I agree with Oliver Wendell Holmes Jr. who stated that, “The life of the law has not been logic: it has been experience.”
I will argue in this essay that reason isn’t always reasonable and logic isn’t always logical,
because regardless of strict formalism, during decision making our internal emotional calculus is unstoppable.
I will present three critiques; each addressed in order, one paragraph per idea that’s essential and central.
Formalism will be critiqued using emotional approaches from individual, theoretical and societal levels.

On an individual level, current formalist legal thought prioritizes objectivity.
In that rational and rigid consistency establishes validity and reliability.
Formalists favor the application of past precedent to present facts.
Formalists hold that if this application is consistent, justice will be left intact.
However, the law is not applied by machines. The law is not a fully enclosed system.
The law is applied by well learned jurists. Yet, these are jurists who are only men and women.
Men and women who are human beings. Individuals with personalities and emotions.
Jurists first decide on their rationale, and only then are precedents summarily chosen.
This application of precedent only gives the illusion of order. Individual bias abounds.
Jerome Frank expressed it best: “Somehow or other, there are plenty of precedents to go around.”

On a theoretical level, formalism is the search for a method of repeatable deduction from a complete system of rules,
Yet this is an illusion as varied circumstances require differing applications of judicial views.
For example, consider this simplistic critique using the allegory of the one armed swimmer,
In a race containing many able-bodied swimmers, a one armed swimmer was declared the winner –
A lawyer came in second and contested. The race’s decision didn’t stand,
because precedent stated that competitors must touch the finishing wall with both hands.
The folly of blind application of precedent without consideration to each factual matrix is plain,
Application of precedent requires consideration of the public policy to which the facts pertain.

On a societal level, all humans are influenced by ingrained cultural norms and ethnocentric bias,
Social conditioning permeates our thought from childhood, as evident in developmental science.
These accepted states of discourse aren’t negative or positive, they exist on a macro-level, above us.
In law they can exacerbate disadvantage. See - patriarchal systems and financial superstructures.
Precedent by its very nature serves the status quo. Change under this system is often very small.
The strictly so-called ‘Rule of Law’ can be criticized to its very core, for, who originally made all of these laws?
How did the precedent arise, this very precedent which our present jurists so readily apply?
Who first derived these concepts that are so staunchly entrenched and rigidly defined?
It was someone operating from a position influenced by their own subjective opinion,
An opinion formed partly through reason but also partly through emotional decision.

In conclusion, formalists ground themselves in notions of reason and applied objectivity,
Yet our ingrained emotional states saturate all levels of life consistently.
It was famously claimed that thoughts are like shadows on the walls of a cave. As much is plain,
If our thoughts are like shadows, our emotions create these shadows. Our emotions are the flames.

12-04-2014, 09:53 PM	#2
zygote Senior Member Join Date: Jan 2013 Posts: 501 Battle Record: 33-12 Accomplishments - OM HOF (2x) Champed - Art of Writing League (3x) Rep Power: 737828	A CLS CRITIQUE OF FORMALISM/OBJECTIVISM IN COMMON LAW JURISPRUDENCE. Justice should not be convenient. Formalism is the rigid application interpretation of the law through precedent. In my view, this is simple expedience. I agree with Oliver Wendell Holmes Jr. who stated that, “The life of the law has not been logic: it has been experience.” I will argue in this essay that reason isn’t always reasonable and logic isn’t always logical, because regardless of strict formalism, during decision making our internal emotional calculus is unstoppable. I will present three critiques; each addressed in order, one paragraph per idea that’s essential and central. Formalism will be critiqued using emotional approaches from individual, theoretical and societal levels. On an individual level, current formalist legal thought prioritizes objectivity. In that rational and rigid consistency establishes validity and reliability. Formalists favor the application of past precedent to present facts. Formalists hold that if this application is consistent, justice will be left intact. However, the law is not applied by machines. The law is not a fully enclosed system. The law is applied by well learned jurists. Yet, these are jurists who are only men and women. Men and women who are human beings. Individuals with personalities and emotions. Jurists first decide on their rationale, and only then are precedents summarily chosen. This application of precedent only gives the illusion of order. Individual bias abounds. Jerome Frank expressed it best: “Somehow or other, there are plenty of precedents to go around.” On a theoretical level, formalism is the search for a method of repeatable deduction from a complete system of rules, Yet this is an illusion as varied circumstances require differing applications of judicial views. For example, consider this simplistic critique using the allegory of the one armed swimmer, In a race containing many able-bodied swimmers, a one armed swimmer was declared the winner – A lawyer came in second and contested. The race’s decision didn’t stand, because precedent stated that competitors must touch the finishing wall with both hands. The folly of blind application of precedent without consideration to each factual matrix is plain, Application of precedent requires consideration of the public policy to which the facts pertain. On a societal level, all humans are influenced by ingrained cultural norms and ethnocentric bias, Social conditioning permeates our thought from childhood, as evident in developmental science. These accepted states of discourse aren’t negative or positive, they exist on a macro-level, above us. In law they can exacerbate disadvantage. See - patriarchal systems and financial superstructures. Precedent by its very nature serves the status quo. Change under this system is often very small. The strictly so-called ‘Rule of Law’ can be criticized to its very core, for, who originally made all of these laws? How did the precedent arise, this very precedent which our present jurists so readily apply? Who first derived these concepts that are so staunchly entrenched and rigidly defined? It was someone operating from a position influenced by their own subjective opinion, An opinion formed partly through reason but also partly through emotional decision. In conclusion, formalists ground themselves in notions of reason and applied objectivity, Yet our ingrained emotional states saturate all levels of life consistently. It was famously claimed that thoughts are like shadows on the walls of a cave. As much is plain, If our thoughts are like shadows, our emotions create these shadows. Our emotions are the flames.