So yesterday, as I was being formally reprimanded for letting my students bring food while the French kids were here ( 2 weeks ago- see archives), my principal says to me, "I know you are not a trouble maker, you just care too much for your students...You put their needs before the school policies, and that is when rules get broken..." Of course, I apologized for the 50th time, assured her it was not outright dissmissiveness of the rules, but a simple oversight...to which she replied, "You'll see when you study law that policies and rules are important, they are there for a reason and ultimately- no one agrees with all of them, but we must follow them, just the same." (Yes, she is so wise)
Her last statement got me thinking about why I am so excited to study law and I love the idea that someday I may get to create policies- but to me it is also exciting because the law is often to open to interpretation. We are not talking about numbered rules on a wall- in a classroom where the rights of the students are few and there is no jury (just a judge-or dictator). I have been reading up on some legal theories, and I came across this book today on Amazon and it made me realize one reason I am so drawn to law -it talks about how they are applied... Here is an excerpt. (Although I fear Lisa will be the only one who will read it)
" ... This dynamism in legal reasoning is not too different from what happens in scientific research, for in the latter new laws (rules) are discovered in the process of interpreting new data that has been acquired by new experiments. The data may then have to be re-interpreted in the light of the new laws (rules) that are formulated. Future data that is similar to this data will then be interpreted under these new rules. Future data that is very different from this may entail a new set of rules be invented (discovered) to deal with this difference.
The issue then, Levi explains, is to when one must view different cases as the same. An intersection of the set of facts of two cases entails a general rule be applied. This "reasoning" is imperfect, Levi argues, since the conclusions were arrived at by a process that was not transparent. Levi summarizes this as a process in which the classification changes as the classification is made, i.e., the rules change as they are applied. This might seem troubling to some, but Levi explains that such a situation is desirable since without it, new ideas could not enter into the legal process. Thus a static view of the legal process where consequences are derived from a closed system of rules is not useful in legal reasoning. In addition, Levi argues, fairness to the parties involved in litigation is served best by this ambiguity in legal categories. The commonality of the ideas of society coupled with the contributions made by legal experts both serve to shape the law. "
BOOH-YAH!
~g
posted by lua at 11:40
5 Comments:
That is an interesting quote. I think that I started law school with very similar ideas to those you have--interest in legal theory, policy, from a social science-type perspective. Mostly because that's what my background from undergrad was and that's what I knew. But during law school, my approach to the law became a little less academic and more practical. Now, I am excited by the advocacy element of practicing law. Like you were saying (I'll paraphrase), there are limited numbers of laws and infinite factual situations to which they are to apply. The fun for me now comes from reading the "black letter" law in statute form, then judicial opinions interpreting that law, and then finding how my client's facts fit with the reasoning and facts of the opinions in such a way that I will win. It is the "Yes, but ..." argument. "Yes, the Court ruled this way under seemingly similar circumstances, BUT, my case is different like this..." I look forward to seeing how your outlook on "the law" changes over the next three years. Many more good conversations to come!!
Law schmaw....Lawyers stink.
No offense, of course.
b.j.- it was that there are different interpretations considering the new situations-(the book was from 1962)
'the reasoning being imperfect because there is a lack of transparancy' deals with (as i see it) that if a law is applied to 2 different cases in the same way, it stiffles the courts abilities to interpret it on a case by case basis... therein- stiffling new ideas. Plus- "fairness to the parties involved in litigation is served best by this ambiguity in legal categories." a closed system (like a classroom) would not allow for the necessary evolution of law in an evolving society.
Levi is quite interesting as is legal theory.
Strictly observing as an outsider though there are times when tagging similarities in different cases is crucial to
preserving the bill of rights for instance.
The first amendment for instance - should be writ bold on the wall and really difficult to withhold - and to hell with changing "mores."
The "dynamic" of changing law these days ( say the past 25 years) has seen several strong developments which are driven by politics and a desire to consolidate power.
Mandated sentencing in drug cases-for instance. Federal drugs laws indeed.
That's what is happening in criminal law - a pronounced shift towards easier prosecution and
away from any notion that there are differences in cases which fall within very broad-stroke legal umbrellas.
I just don't see any trend towards anything like scientific research - another discipline that has been out of favor so long that one of the truly aberrant circumstances in this country anyway is the disparity between real scientific data and law- poilicies- that should be based on that data.
The legal system is all but mired in politics and changes in the rules (of both criminal and civil law) which surround poor people, the accused, the cheated with swarms of jellyfish.
I would go with Liz here with practicality.
The urgent need from trained lawyers is to keep their clients from perishing by skillfully using
what's available.
'cause we are liviung in Levi's nightmare- what's changing is only the creations of new Closed Systems.
Some paradigms in law have always been in dispute - British civil law and the constitution form have been
thought to serve as fairly constant models but actual whats formed are more like syntagms.
Thing is there are too many peole in this nation in jails under ever more closed criminal law systems and ever fewer ordinary people able to hold their own much less win litigation against vastly powerful corporations whose protections have increased greatly thanks to their friends who create laws.
Alas the trend is towards ever more narrow rigid laws that play well a social marketing ( 3 strikes your out, Megan's Law, Mandatory Sentencing etc.)
Totaliatarism is alkl the rage - and it could care less about Levi's reasoning.
This country's political system is choking the life out of its legal system.
Almoist every constitutional amendment on the table of late is about narrowing liberties or rights -
the one to ban gay marriage may even come close to passage. While federal legislators keep taking things like antiu Flag burning legislation back to the drawing board bound and determined to pass it and run it through the courts again and again.
So all this theory is again kinda sorta interesting
like that beach boys song"wouldn't it be nice."
The "paradigm" for American Law is now what may be most simply described as "ass fuck"
no. it is some chick named lulu. she looked coy. i like coy. and i think it is an older picture- like the quote. not new but still worthy of discussion...
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