Evil as an Aesthetic Concept

Learning & L., 1975

We are living in a time of changing consciousness about the meaning and function of authority. Law, which is often taken to be the backbone of authority structures in society, has come increasingly under scrutiny, both for its role in maintaining oppressive social conditions and for the exceeding narrowness of legalism as a world view.

1975

Fifty years ago I wrote a critical essay about law and legal studies for a New Year’s edition of an ABA journal, ‘Learning and the Law’. I’m pretty happy with how it has weathered the ½ century. Maybe more relevant now than then. It is my purpose in this essay to focus on that form of legal studies which is critical, humanistic and self-developmental in its educational goals. And in this context, I will explore the potential for the emergence of a fundamental restructuring of the way we think about law.

This paper will examine the changing role played by the judiciary in criminal trials. The paper examines the genesis of the adversarial criminal trial that was born out of lifting the prohibition on defence counsel in trials of treason. The paper will chart the rise of judicial passivity as lawyers dominated trials. Finally, the paper examines the rise of the interventionist judiciary in the wake of the Auld Review that launched an attack on the inefficiencies of the modern trial. To tackle the inefficiencies, the Criminal Procedure Rules allowed the judiciary to reassume a role of active case management. The impact an interventionist judiciary has for adversarial criminal justice is examined. The paper finds that a departure from traditional adversarial has occurred; the criminal justice process has shifted to a new form of process, driven by a managerial agenda. This paper will examine the evolving role of the judiciary from the early adversarial trial up until the advent of the Criminal Procedure Rules 2015 (hereafter, 'CrimPR'). The paper will chart the role played in early criminal proceedings, starting with the lawyer-free 'altercation' trial of the 16th century. Here, the judiciary assumed an early form of case management powers; they actively managed cases and acted as counsel for the defendant. The prohibition on defence counsel was lifted in the 18th century; this was the genesis of adversarial trial. The role of active judicial participation rapidly diminished and an era of judicial passivity commenced. The paper will investigate whether a cultural shift has occurred in the contemporary criminal trial. At the heart of this pendulum swing is a question: is the judiciary reverting to its pre-adversarial approach by departing from its position of passivity to become a more active participant in the arena of the criminal trial? The paper will discuss the potential ramifications this culture shift has for the future of the adversarial criminal justice process of England and Wales.

The Yale Law Journal, 1977

Studies in Law, Politics, and Society, 2007

2012

This thesis explores Robert Cover’s Jurisgenerative view of the law. Cover argues that the law’s ability to compel social behavior depends on its normative force, which develops in reference to normative commitments that vary from person to person. As a result, the same law will be subject to multiple conflicting interpretations, each rooted in its own normative valuations. Since each interpretation flows naturally from the values which produced it, there is no universally acceptable basis of comparison or evaluation. Nevertheless, the need for a predictable basis of social interaction requires that the court fashions a single, authoritative statement by institutionalizing some interpretations and rejecting others. Because these interpretations are rooted in the values of those who hold them, Cover contends that the choice of which interpretation to enforce also constitutes a choice of which values to promote. In this way, Cover’s theory suggests that legal decisions are also signif...

Miscarriages of justice are exceptionally prevalent, acute and most often irredeemable when the subject is ‘an enemy of the state’. Nowadays, these subjects usually take the guise of ‘terrorists’ or other variants of ‘extremists’, and the impacts of the miscarriages upon them can be extreme, including the death penalty. Evidence will be provided for this premise mainly from the United Kingdom, but with further examples from other jurisdictions. Reasons for this correlation will be considered. One response is to demand the observance of fundamental rights within the justice process even in times of crisis and threat. In fact, states frequently adopt processes, which diminish normal safeguards and checks against wrongful conviction in such cases. Therefore, given the predilection of states to dilute due process in terrorist/extremist cases, a more practicable remedy might be to concentrate on post-conviction review mechanisms.

Research on compliance has shown that people can be induced to comply with various requests, by using techniques that capitalize on the human tendencies to act consistently and to reciprocate. Thus far this line of research has been applied to interactions between individuals, not to relations between institutions. We argue, however, that similar techniques are applied by courts vis-à-vis the government, the legislature and the public at large, when courts try to secure legitimacy and acceptance of their decisions. We discuss a number of known influence techniques, including ‘foot in the door’, ‘low-balling’, ‘giving a reputation to uphold’ and ‘door in the face’, and provide examples from the Israeli case-law for the use of such techniques by courts. This analysis offers new insights that can further the understanding of judicial decision-making processes.

Argumentation and Advocacy, 2008

An examination of Harlan's Plessy v. Ferguson (1896}, Holmes's Lochner v. New York {1905), Brandeis's Olmstead v. United States (1928}, Murphy's Korematsu v. United States (1944), and Blackmun 's Bowers v. Hardwick (1986) dissents demonstrates the ways in which good and evil are used in dissenting opinions. The Constitution is constructed as good and the authority by which the citizens are protected. The dissents frame constitutional interpretation, the government, and statutory law as evil. The use of these arguments in judicial dissents shifts the legal conflict from a difference of acceptable legal interpretation or public policy into a metaphysical battle between good and evil.