Thursday, May 15, 2008

kanBARoo Court. 37th Installment. Moralism: A Synthesis

Attentive readers will have wondered whether I would ever get around to defining "moralism." Perhaps I was unaware that I hadn't provided a definition or even failed to notice the meaning was not evident, although involving replacement of positive law with moral claims. A more refined but still preliminary definition is moralism asserts quotidian moral norms should decide legal outcomes.

Psychoanalytically, moralism expresses the archaic super-ego, the Freudian punitive and primitive unconscious conscience, organized around desert through the talion (eye-for-an-eye) principle. The 35th Installment related moralism to capital punishment, and I claimed moralism includes the tenet holding some deserve to suffer; insists capital punishment be punishing; and insists suffering penalize lesser misdeeds. These tenets comprise desert, prominent in conventional morality. In the same Installment, I called capital punishment regressive moralism's extreme; it takes desert furthest. The 36th Installment holds moralism responsible for laws barring insurance and indemnification for intentional torts, because the measures prohibited interfere with desert. In the 33rd Installment, I claim moralism denies the right to demand trial. The talion principle so insists, as the defendant didn't give his victim a trial.

Only partly overcome by lawyers, moralism is the natural way we think about punishment. The moral compulsion is sufficiently instinctive that bureaucratic reflex expresses and harnesses it. The moral compulsion's mental presence is sufficiently vivid to support widespread reification in a naïve moral realism, which holds that moral facts exist. The 6th Installment maintained that strident moralism obfuscates issues, helping justify bureaucratic reflex. Conventional moral feelings color and obstruct thought by their tenacious grip and, as habitual thought patterns, they coincide with bureaucratic reflex. The 32nd Installment says that the State Bar distorts civic discourse wherever the Bar imposes its bureaucratized moralism. By incapacitating the analytic faculty, moralism prevents rational discussion.

Deciding legal outcomes by primordial moral norms produces inferior legal outcomes because the process strips proceedings' limitation by the law of evidence, the law of procedure, precedent, informed statutory construction, and public policy. Everyone understands the first four, but public policy is easily confused with morality. While desert calls for punishment consistent with the severity of the infraction, current public policy is mostly dedicated to deterrence, and deterrence demands not only a positive relationship between punishment and an infraction's severity but also an inverse relation to the probability of apprehension. Desert demands that capital punishment punish, while a strong public policy against torture, defined as any unnecessary infliction of pain, calls for only painless executions.

In my case, one must labor to apply the distinction between moralistic and policy-governed prosecutory practices, when contemplating the prosecutrix stealing documents from the case file. Even moralists gag on her conduct. This is why the prosecutrix’s malfeasance will carry weight, even in the hypermoralistic atmosphere of appellate State Bar Court case review.

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