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I 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
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(Anonymous) 2005-11-11 04:38 pm (UTC)(link)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
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(Anonymous) 2005-11-11 05:47 pm (UTC)(link)Basically what I'm saying is be more John Armstrong and less Alex Gianturco.
JRJA
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