This week, Tyler brought up an interesting question, which Joshua repeated several times. The question was approximately “Is it good/appropriate for a judge’s sociological or psychological position to have a place in law and the decision made as Legal Realists suggest?” I’m not sure if I have decided whether it’s morally appropriate or not, but I have decided that it can be beneficial in certain circumstances and situations, but detrimental in others. Take for example a fictional case where the judge’s cultural identity and values are in accordance with the defendant. This judge might and could (if the defendant was found guilty) impose a more severe punishment on the defendant to preserve these cultural values and this cultural identity, whether it is because of a sub-conscious sociological factor, or a conscious one. One might pose the question of how it’s beneficial towards reaching a uniform justice if that’s even possible, or how this is beneficial to the law. My response would be that through the preservation of cultural values and identities we preserve that cultures ideas and thoughts on law and morality. With both generations Y and Z coming into being alongside the technological and interpersonal communication advancements the world has made, many cultural values and ideas are being ignored to the point of extinction. This could lead to the loss of values such as law’s preservation, or that one should follow laws. A lawless state might not be so appealing. Basically, the point I’m trying to convey is that through these factors that affect a judge can come the preservation of certain things or the acknowledgment of certain things such as racial hatred, or ignorance, and through these things can the idea of law be preserved or altered to better accommodate for the needs and social evolution of a community.
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"With both generations Y and Z coming into being alongside the technological and interpersonal communication advancements the world has made many cultural values and ideas are being ignored to the point of extinction. This could lead to the loss of values such as law’s preservation, or that one should follow laws."
ReplyDeletePerhaps I'm misinterpreting this point, but if I'm reading it correctly you're pretty much saying that our technologically advanced society has resulted in a convergence or mixture of cultures, which has in turn caused the loss of cultural values such as obedience.
I find the point a little extreme- though I agree that some traditional values are virtually absent in our culture, I feel that basic fundamental values such as family, camraderie, and obedience to the law remain prevalent in our society.
I agree that there is some relationship between culture, law and morality. However I don’t think it is the place of a judge to make decisions solely on the basis of pleasing society for the moral implication. I think that judges, if they are truly following the constitution should already be upholding the idea of equality under the law. A judge needs to be aware of certain moral obligations but the law is the law and there shouldn’t be any biases in their decision. This situation can lead sociological and moral factors being the determining factor rather than law itself. When you get into the realm of altering the law for societal purposes then jurisprudence can be skewed to favor certain groups.
ReplyDeleteI like the way you view the benefits of a judge deciding a case based upon sociological factors; the preservation of cultural values and upholding the right ideas on law and morality seems very essential. From what I gather, the judge would not just be ensuring legal justice, but also taking responsibility for ensuring that right cultural values are sustained. I just think that in order to approve of a judge deciding a case upon these factors, one would have to presume that the judge has a perfect understanding of different cultural moral standards and is upholding the right ones; it’s possible that the values they’re promoting aren’t actually beneficial to society.
ReplyDeleteIn response to Hirsh:
ReplyDeleteI'm not saying that the majority of values have been lost, or destroyed. I suppose I used 'many' incorrectly. What I meant to say was that some cultural values have been lost, or altered with the prevailing innovations at hand. For example, since the fall of communism and the Soviet Union concepts such as Atheism and Agnosticism have risen in many developed nations. Now, that number has started to decline but through this one can see the loss of faith as a cultural value. I'm not making the claim that obedience to law has diminished in our country, but that value has decreased and isn't as prevalent as it was a few decades prior to now.
I hope that clears things up a bit.