(no subject)
Nov. 11th, 2005 10:06 am![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
vicarzI think I just discovered a clear example of why there is a perceived gap between people and "the law."
Background:
At work, I'm in the awkward position of instructing a man far my senior in how to do our job. I was trying to explain to explain to him why a "neglect of duty" charge was not an appropriate place to cite our "Ethics" directive. I simply noted that our ethics directive refers to "private gain" and is used in our department to support charges of: making money from subordinates or regulated parties, accepting gifts, and other financial dealings (or giving the appearance of such dealings) which might cause the public to question a regulator's objectivity. He kept trying to return to a dictionary definition of "Ethics."
I thought about, then decided not to note, the fact that Clarence Thomas is famous for invoking the dictionary in legal cases. I'm stupid, but I'm not quite venturous enough to compare a man to Clarence Thomas (oh, he's black). Still, the comparison plopped in my mind and it was controversial enough that I hung onto it for a while.
Query:
Why might it be wrong for a Supreme Court Justice to invoke the dictionary to define words?
Our legal system is based on precedent, so that a rule made for one fact set should apply whenever the same fact set is encountered again. Language from one case is carried forward to the next case, but typically the facts differ each time. The courts juggle the facts and the rules, trying their best to make a set of rules that can be applied to many sets of facts, while still being fair and just. It aint as easy as it might seem, for rules are hard to make that can be applied consistently when individual cases call out for varying solutions. ONE result of the juggling act is that language is carried from one set of facts to another, from one area of law to another, and from one generation to another. WHEREFORE over time, the words themselves may be out of touch with the current language and the legal issue being addressed - though the test still represents a proper rule for the current facts. i.e. Who says WHEREFORE anymore outside of a court docket?
Short personal example:
In the case I was facing, I argued that his definition of "ethics" was inappropriate.
1. He was quoting the dictionary, and ethics could be applied to many situations. I agree that the term "ethics," in layman's terms, would describe the set of values that would prevent most people from "neglect of duty."
2. I was quoting from our directive, which refers to "using government positions for private gain" and is typically given with instructions about avoiding financial dealings which do (or may appear to) affect a regulator's ability to be objective in their decisions. The term I used represented something different in the context I was using it than he could find in the dictionary. I was "right" in saying "ethics" did not apply to "neglect of duty," because I was using the term ethics based on a directive which defined it (which he didn't read or understand), and based on our Agency historical practice.
3. I wonder though, if perhaps I'm just too invested in our current system to see his valid point? Perhaps I resist his logic because I recognize the difficulty in changing all our directives and rewriting history just to match our practice to the dictionary. Do I buy the logic, is it right, or am I just a bureaucrat?
(please note the question is moot as we have other directives which clearly address neglect of duty)
Conclusion:
I think the divide I faced with my co-worker is exactly the kind of divide that people have when they hear legal arguments pulled out of context, and it's likely the audience will experience outrage with the out-of-touch legal system. Further research might help that audience understand that despite the language use, what is being expressed they may agree with if they understood it.
Does this make sense? I probably will revise and repost this if I find it could be stated better. Comments welcome.
In more important news: Lemur Species Named After John Cleese
Background:
At work, I'm in the awkward position of instructing a man far my senior in how to do our job. I was trying to explain to explain to him why a "neglect of duty" charge was not an appropriate place to cite our "Ethics" directive. I simply noted that our ethics directive refers to "private gain" and is used in our department to support charges of: making money from subordinates or regulated parties, accepting gifts, and other financial dealings (or giving the appearance of such dealings) which might cause the public to question a regulator's objectivity. He kept trying to return to a dictionary definition of "Ethics."
I thought about, then decided not to note, the fact that Clarence Thomas is famous for invoking the dictionary in legal cases. I'm stupid, but I'm not quite venturous enough to compare a man to Clarence Thomas (oh, he's black). Still, the comparison plopped in my mind and it was controversial enough that I hung onto it for a while.
Query:
Why might it be wrong for a Supreme Court Justice to invoke the dictionary to define words?
Our legal system is based on precedent, so that a rule made for one fact set should apply whenever the same fact set is encountered again. Language from one case is carried forward to the next case, but typically the facts differ each time. The courts juggle the facts and the rules, trying their best to make a set of rules that can be applied to many sets of facts, while still being fair and just. It aint as easy as it might seem, for rules are hard to make that can be applied consistently when individual cases call out for varying solutions. ONE result of the juggling act is that language is carried from one set of facts to another, from one area of law to another, and from one generation to another. WHEREFORE over time, the words themselves may be out of touch with the current language and the legal issue being addressed - though the test still represents a proper rule for the current facts. i.e. Who says WHEREFORE anymore outside of a court docket?
Short personal example:
In the case I was facing, I argued that his definition of "ethics" was inappropriate.
1. He was quoting the dictionary, and ethics could be applied to many situations. I agree that the term "ethics," in layman's terms, would describe the set of values that would prevent most people from "neglect of duty."
2. I was quoting from our directive, which refers to "using government positions for private gain" and is typically given with instructions about avoiding financial dealings which do (or may appear to) affect a regulator's ability to be objective in their decisions. The term I used represented something different in the context I was using it than he could find in the dictionary. I was "right" in saying "ethics" did not apply to "neglect of duty," because I was using the term ethics based on a directive which defined it (which he didn't read or understand), and based on our Agency historical practice.
3. I wonder though, if perhaps I'm just too invested in our current system to see his valid point? Perhaps I resist his logic because I recognize the difficulty in changing all our directives and rewriting history just to match our practice to the dictionary. Do I buy the logic, is it right, or am I just a bureaucrat?
(please note the question is moot as we have other directives which clearly address neglect of duty)
Conclusion:
I think the divide I faced with my co-worker is exactly the kind of divide that people have when they hear legal arguments pulled out of context, and it's likely the audience will experience outrage with the out-of-touch legal system. Further research might help that audience understand that despite the language use, what is being expressed they may agree with if they understood it.
Does this make sense? I probably will revise and repost this if I find it could be stated better. Comments welcome.
In more important news: Lemur Species Named After John Cleese
![[identity profile]](https://www.dreamwidth.org/img/silk/identity/openid.png){kind=small}
no subject
Date: 2005-11-11 04:00 pm (UTC)Second, the link doesn't show a picture of the fecking lemur! I was looking forward to some good old fashioned lemur fun today, and I think Yahoo! news cheated me out of it...
no subject
Date: 2005-11-11 04:01 pm (UTC)Crisis Averted.
There's a picture of JC with a lemur on his website.
no subject
Date: 2005-11-11 04:03 pm (UTC)no subject
Date: 2005-11-11 04:11 pm (UTC)I actually couldn't load it cause I don't have the newest version of flash, and I think it might make my computer crash if i tried to install it.
We'll see if I can get to it on the laptop!
no subject
Date: 2005-11-11 04:38 pm (UTC)To contrast a bit, math and physics also has a lot of jargon for similar reasons (need very specifically-defined terms), but it sounds closer to modern English. This leads to moronic lit-crit types deciding they know what the jargon means (using the casual "dictionary" definitions) and spewing bullshit as a result. Alan Sokal parodied this very effectively in his hoax Transgressing the Boundaries: Towards a Transformative Hermeneutics of Quantum Gravity (http://www.physics.nyu.edu/faculty/sokal/transgress_v2/transgress_v2_singlefile.html).
As for the layman's reaction, it's art of the more general fact that there are subtle points that the naïve approach misses. The question now is how you (as someone in the know) will deal with that. Will you try to find good ways of pointing out where their idea falters? Or will you ridicule the layman and keep your answers to "you're wrong" and "I've got a J.D. so you don't know what you're talking about".
JRJA
no subject
Date: 2005-11-11 04:45 pm (UTC)no subject
Date: 2005-11-11 05:47 pm (UTC)Basically what I'm saying is be more John Armstrong and less Alex Gianturco.
JRJA
no subject
Date: 2005-11-11 06:12 pm (UTC)no subject
Date: 2005-11-11 05:43 pm (UTC)i was a philosophy major, specilizing in ethics and meta ethics.
the category of statement/thought "ethics", for philosophers (well, ethicists at least. you know... those people who actually spend time thinking about systems of ethics?) does NOT encompass social mores, nicieties or even the law.
ethics describes good and evil, right and wrong. telling someone they're being an idiot, if it's the truth, is NOT an ethical statement or act. it may not be NICE, but it has nothing to do with ethics.
i'm not cetain what this has to do with your post, but it's a real pet peeve of mine. people trying to pass off certain statements or actions as "ethical" or "unethical" when, really, they've got nothing whatsoever to do with ethics.
*grumble*
-S
no subject
Date: 2005-11-11 06:11 pm (UTC)It was more a general thought about the use of terms in different contexts leads to confusion on issues, perhaps giving the illusion of conflict where none exists.
no subject
Date: 2005-11-11 07:36 pm (UTC)I think it depends on what the definition of "is" is.
:)
CU
no subject
Date: 2005-11-11 09:47 pm (UTC)"Well, we all know that Jeffrey Dahmer was off his rocker, but we wouldn't be able to use the legal definition of 'insanity' in his case because legalese defines 'sanity' as..." It makes the person see that you agree with them, that you're on the same page, but tht you are also working under restrictions. Keeping in mind the directive or the context in which a term is used is very important in something as sensitive as an ethics charge. There's nothing snotty or bureaucratic about that. I love studying law because I like finding the meaning of nuanced language.
no subject
Date: 2005-11-12 07:42 pm (UTC)