Law in Contemporary Society

White noise

-- By MinChoi - 16 Feb 2012

"Criminal law appears to say parents have no right to kill their children. The law also, however, has from time to time mitigated murder to manslaughter where the perpetrator was an immigrant from a country with different criminal standards by which the perpetrators' acts were accepted customs."

You don't say where this quote comes from.

Before the onslaught of confusion - but I thought ignorance is not an excuse? Isn’t the law supposed to protect the weak and helpless? You mean just because some person is abused in her home country, it’s understandable for her to be abused here too? Is this the way lawyers think? But I thought this was America, why do we apply the reasonable person standard of a different country? – let’s try again:

"Criminal law, or to be more concrete, courts, or even more concretely, judges have held that parents have no right to kill their children. Some other judges, however, have from time to time mitigated murder to manslaughter when the perpetrator was an immigrant from a country with different criminal standards by which the perpetrators' acts were accepted customs."

I don't understand why your response to this is the particular flood of rhetorical questions in the middle graf, or what the rewording of the original unattributed quotation is supposed to clarify. One could certainly write a useful and interesting essay about the complexities and contradictions of "cultural practice" defenses to criminal liability. But you don't seem to be intending that. If I knew where the first quotation came from I might understand better its confusing mix of apparent knowledge and evident naivete. But it is not, at any rate, completely obscure why a court might conclude (on the basis of an evidentiary record we don't see) why the required intent to kill might be absent in an actor who, evidence establishes, has grown up in a culture which believes firmly that death cannot or will not result from conduct the actor has intentionally engaged in. On such a record, or in other interculturally complex situations one could hypothesize, a court might indeed find the evidence to support a lesser, included homicide offense but not a murder conviction.

If this possibility is for some reason a basis for the flood of rhetorical questions above and below, you should explain why.

English has many words of abstraction. They help users of that language to refer to complex ideas – rights, justice, equality, fairness. But do these abstractions help the thinking man or, to be politically correct, thinking person? Do they enhance or aid the thinking person’s “ability to understand sound principles and the free will to follow them”? Or do they muddle our (purportedly logical) line of thought with their vague definitions? Are they mere transcendental nonsense, grand words that mean who knows what but incites vague impressions of learnedness that judges throw around as justifications for the conclusions? Just like the sentence you've read just now?

The thinking person should be able to see through the boggle of words, see them for what they are. But wouldn’t it be so much easier to think when we know what we are talking about?

By replacing abstractions with concrete words grounded in facts, we offer a clearer description of our profession. It is not some amorphous, omnipresent deity we have sworn to worship called the law moving people around. It is in fact people, for one reason or another, that have a notion of what they feel the outcome should be – then try to explain why they feel that way using words no one can define quite well: justice, morality, fairness. So instead of asking why the law does do this instead of doing that, we'd ask why people do this or that. And ask why they're using all these abstractions. By using abstractions, we become conjurers of legal magic, perpetrating justifications that you and I and almost everyone realize means something else for each of us. Or we become puppets in the hocus pocus show, feigning to comprehend the legal lingo.

... but why won't we admit we don't know what we're talking about? Legal writing, from what I've heard, has moved toward clarity and straightforwardness. Why not clarify the substance as well as the style? I'd like to see what practicing the amorphous blob we call the "law" is, stripped bare of all its abstraction and reduced to concrete terms. A start would be to see how it is described.

This draft begins with a couple of grafs posing, apparently, a puzzle in the nature of "cultural practices" defenses to criminal liability. The puzzle isn't stated clearly, the legal reasoning that comprises the moving parts of the puzzle isn't explained at all, and the puzzle—which in most situations has a stable, if not uncontroversial, solution, isn't solved.

The draft, however, then falls into four grafs of rhetorical questions and largely imprecise speculations about "abstractions" in law. I don't know what those grafs mean after three readings, which is more than any non-professional reader would undertake before giving up.

Two possible routes to an improved draft seems viable to me. First, there could be an essay here about cultural practice defenses in crime. That would involve stating the puzzle (individual liability based on the offender's state of mind and the nature of the intended consequences, on the one hand, uniformity of application on the other), and working out how the particulars of one or more illustrative situations demonstrate the reasons the puzzle is difficult.

Second, you could drop that introduction, and instead begin from a clear, non-interrogative statement of the central idea you mean to express about concreteness as opposed to abstraction in legal description. You could explain your idea by both precept and example, and provide analysis or illustration of the advantages flowing from more concrete (or less abstract) articulation of law. (You would also want, of course, to consider any downsides or drawbacks.)

This is your essay, not mine, and I've no idea which of these (or what third way) appeals to you. The present draft is too imprecise, however, to let stand, so one or another way should be taken.


Webs Webs

r4 - 22 Jan 2013 - 20:10:44 - IanSullivan
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