Law in Contemporary Society

Moral Distance and Procedural Legal Systems

-- By TheodoreSmith - 21 May 2008

Note: This is not so much a rewrite as it is an entirely new paper. I interpreted Eben's original comments as suggesting I had been somewhat overreaching in my original choice of a topic, so this rewrite was an attempt to pick one of the themes of that paper and develop it more fully. To see the original paper, please look in the page history.

Table of Contents

Two Lines of Critique

A common theme running through our early readings has been an examination of the various weaknesses of formal and procedural systems of law. Cohen focused on the tendency of formal legal reasoning to become circular and self-justifying, while Frank pointed out the ultimately human and contingent basis of legal decision making. Insofar as the practice of law is inseparable from its component actors, Cohen’s nonsense and Frank’s fact-deciding may be considered examples of problems fundamental to the practical execution of a formal legal process.

Shifting our focus from the effectuation of the formal system to its impact on the legal actor, another line of criticism emerges. In this essay, we shall focus specifically on the degree to which a procedural system makes it easier for lawyers, judges, and other legal professionals to morally distance themselves from the outcomes of the legal process. With this aim, we will look at three related characteristics of a formal legal system that may facilitate the disassociation of actions from consequences. Although these features provide a possible mechanism to avoid taking personal responsibility for morally distasteful legal results, it is important to note that mere facilitation of moral distance is not a mandate of immorality. It would be wrong to assert that legal professionals are unaware of moral consequences or do not feel deeply responsible for the outcomes of their actions; the characteristics examined here are simply three traits that make it easier for an actor in a formal legal system to assuage her conscience and distance herself from the results of the process.

Indirectness Bias

The first distancing feature of a procedural legal system arises out of the psychological concept of indirectness bias. Indirectness bias refers to the tendency of humans to place greater moral weight on activities that are a direct, rather than indirect, result of their actions. The idea that directness generally factors into moral calculations and moral liability has been shown experimentally, and is reflected in a number of our justifications for proximate cause and other legal doctrines.

A procedural system of law creates indirectness by its very nature. A rule-centric legal system creates a procedural decision tree, making the consequences of actions dependent on a sequence of subsequent events, and possibly influenced by a number of other legal actors. The testimony of a policeman lying under oath in a complex trial is separated from the actual outcome of the case by a substantial number of procedural steps and interposed actions. Regardless of the degree to which these subsequent influences actually have an intervening effect, the mere appearance of indirectness allows the actor to discount his own moral culpability for the results of the process.

Legal Roles and Procedural Justice

A formal legal system further distances legal actions from outcomes by providing fixed roles and a normative ethical code to its actors. This aspect of procedural legal systems is particularly noticeable in the adversarial model of American law. A central assumption of this type of system is that a just outcome will tend to arise when each legal actor is effectively performing his or her role in the overall legal process. This position, that the system is responsible for the justice (or injustice) of the outcome, has the potential to provide an easy moral scapegoat for the individuals within. Because American legal professionals are encouraged to believe in the efficacy of procedural justice, and because they are bound by an ethical code to zealously perform the duties of their role, it becomes easier to shrug off personally distasteful consequences. Although it should not be implied that individuals in these roles have no eye for the overall just outcome of the system, the focus on procedural rather than substantive justice has the potential to provide easy moral justifications.

The Constraints of Procedure

A third distancing characteristic of procedural law can be found within the restraints it places on its actors to influence the consequences of the process. A system based on ethical and procedural rules necessarily limits the impact that each legal actor can have on its outcome. Regardless of the actual inviolability of the constraints, the facial appearance of powerlessness can provide a powerful moral crutch for an individual confronted with a dissatisfying outcome. Not only can the apparent powerlessness of the individual help to personally excuse an unjust result, but the supposed constraints imposed by the system may discourage a legal actor from searching for a more creative legal solution.

Avoiding Overstatement

Although these three characteristics may be perceived as weaknesses of a procedural system of law, it is important to note that any tendency for the legal actor to morally distance herself is not absolute. Just as Frank was careful to point out that the human role as fact-decider does not preclude justice, we must be careful here to not overstate the power of the disassociating characteristics of a formal legal system. It would be absurd to assert that no lawyer has ever sought to distance herself from the substantive consequences of her actions; however, it would be equally absurd to hold that many judges and attorneys are not deeply affected by the outcomes of their cases.

Why it matters

As practitioners within a formal legal system, the practical importance of this analysis can be illustrated on two levels. First, as lawyers, understanding the nature of these dissociating characteristics may allow us to avoid the trap of self-justification. The smarter the individual, the easier it becomes for him to rationalize his actions; we must be aware of our own potential to evade responsibility or justify not searching for creative legal solutions to our problems. Second, the impetus to reform the legal system will arise out of dissatisfaction with the substantive outcomes of the process. The more we are aware of the morally distancing features of our procedural system, the more likely we are to be able to avoid moral complacency regarding the results of the system and our role as legal actors.


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r26 - 12 Jan 2009 - 23:08:27 - IanSullivan
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