[1] An Existential proverb taken from the author of Metaphors from a Psychotherapist, Shelly Kopp.
Focal Point of the Law
What is intriguing is that both the Idealist and the Pragmatist during the formation and application of the law see the need to be irrational. Obviously, if the Formation of the Law is Irrational and the Application of the Law was also Irrational, chaos may ensue and rational thinking would not compel members of society to obey the law. On the other hand, if the Formation of the Law is Rational, and the Application of the Law is also Rational, it appears that the system would be so rigid that individual freedom enjoyed in a democratic society may be destroyed.
Apparently, the reason the Idealist and the Pragmatist are being Irrational is to make the legal system more humane. What is of vital importance here is at what point is the humanity interjected into the system. The Idealist injects humanity into the Formation of the Law. This appears to reasonable to the Idealist because the Idealist believes that the ideas of humanity are more important than anything else and are deserving to be the Foundation of the Law. This may be exactly what Fuller is referring to as placing the pointer on the moral scale. Hart would succumb to Irrational thinking because it cannot be possible to know all things. “All important decisions are made with insufficient information.”[1]
The Pragmatist disagrees with all the suppositions of the Idealist. The aspirations of humanity are just aspirations. The Pragmatist has aspirations, but not aspirations about how society ought to be, but rather aspirations about how the law is to be administered fairly. It is interesting to hear an Idealist argue with a Pragmatist concerning issues about the Application of Law or the Formation of Law. Consider an argument about capital punishment. Each side will often resort to their best Rational argument. When each begins to argue their position, they begin immediately not talking about the same thing, but rather talking about logic and empiricism helps them the most. They attack one another on the basis of their irrational ideas, and find no conflict at all that one is talking about how to form such a law and the other is talking about to apply such a law. It is of little wonder why novices and Criminal Justice professionals stay away from legal arguments. Perhaps there is hope for improvement.
A point to ponder is what becomes the focus of Application of the Law. For the Idealist the focus is the final outcome of the law. The Pragmatist is continually focused on the process involved. This dichotomy is similar to positions that Criminal Justice professionals have assumed. Herbert Packer has observed a competition among Criminal Justice professionals along the lines of “due process” seekers and “crime control” specialists.[2] The winners of this competition will have a dramatic effect on the criminal justice system. Hopefully the winners will also have an intellectual understanding of the law.
The competition for Focus of the Law is a competition for an appropriate method to evaluate the Criminal Justice system. If one focuses on the product the temptation is to measure the effectiveness and efficiency of the criminal justice system on things that are relatively easy to measure, i.e. trends in crimes, crime rates, etc. If one focuses upon the process, quantitative measurements are much more difficult, and according to some less meaningful. Focus of the Law is vital to both the Idealists and the Pragmatists. Whether the Criminal Justice system, and consequently, the law are successful is dependent upon the Focus of the Law.