Powers, Legal Tradition, and Moral Formation March 16, 2007
Posted by Barrett in : Theology, Law, Ethics , trackbackThis post contains some rudimentary thoughts on the American legal system, its inner ethos, and the potential for moral formation to occur within that system. In the future I would like to develop these themes into a journal article. Here, I put these themes into writing for the first time. I will continue to articulate each part of my thesis in more detail in future posts.
The basic structure of my thesis is three-part, and it is something like what follows.
(1) Like all power structures, the legal system is corrupt or fallen from both the inside-out and the outside-in. The outer manifestations of this corruption are easy enough to see, but the inner aspect of the legal system — its ethos or spirituality — is often ignored. Powers theory, as articulated by Walter Wink, sheds significant light on the nature of the ethos of the legal system. Wink’s theory helps us to see the broader picture of how and why the legal system is corrupt.
(2) Following Alasdair MacIntyre, the American legal system may be understood as a tradition. The legal system is corrupt, in part, because it has not evolved properly, which is the result of its strict observance of tradition. In other words, when a legal tradition encounters epistemological crises it does not adequately adapt to or process these crises because of the inflexibility and rigidity built into the system. The legal system repeatedly exhibits what I have come to call a stare decisis crisis. The rigidity of the legal tradition does not permit positive countervailing forces, from within and outside of the tradition, to act. Therefore, the legal system is restricted from positive change; its negative ethos is static. A negative feedback loop is created, and the tradition stagnates. The fallen powers of the legal system are not challenged.
(3) Moral formation, through a process of inculcating practices and building a certain kind of virtue, takes place within the legal system, just as in any tradition. However, moral formation in the legal system is inadequate because the tradition lacks proper moral sources. Moral sources are lacking in the tradition because it is corrupt, stagnant, and relatively impervious to outside influence. Moral formation in the legal system is rooted in the education provided by law schools. Law schools repeatedly fail at this task.
These are my rudimentary thoughts and need much work. I will continue to flesh out these ideas and tighten up the reasoning and associations in future posts.
Comments»
An excellent subject!. May I be so bold as to suggest some material you may find useful to your article’s composition. This one is on the problem of the”plausible lie” in the context of judicial proceedings:
http://www.hal-pc.org/%7Ercanup/problem.html
This one, while mainly concerned with legal wrangling over removing the Imams from their airline flight, does illustrate some dangerous “faultlines” developing in the legal system today. This is especially important in the light of Bush’s attempts to sanitize the AG’s, leaving only those who will do the administration’s bidding.
http://tinyurl.com/2lt3hc
Lastly, may I recommend a book richly illustrative of how fascist mass psychology arises (as it has throughout history) in which the legal system becomes corrupt as a matter of course. It’s titled Ponerology: a Science on the Nature of Evil Adjusted for Political Purposes. A dense read, but will worth it.
http://preview.tinyurl.com/yptgcy