Chapter 4 Second book

Chapter 4 Second book - Introduction to Chapter 4: The...

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Introduction to Chapter 4: The judge seeks to avoid the perception of two against one by asserting his neutrality between the two disputants, the sense both of his personal neutrality between the two disputants, in the sense both of his personal neutrality and of his employment of a decision rule that appears to take discretion out of his hands, while dictating a resolution quite independent of his personal preferences for either party. In the early Roman law the two parties mutually chose the judge, and mutually chose the decision rule or law which the judge was to apply to their particular dispute. If either party claimed the judicial decision was two against one, the response was: how could it be? You choose the judge an you choose the law. This is where the orthodox prototype of courts comes in. The prototype calls for an independent judge, who applies pre existing legal rules, following adversary proceedings that enable him to arrive at a decision in which one party is declared legally right and the other legally wrong. The prototype says to the loser: do not perceive the outcome as two against one. You did not choose the judge, but appointment by the state assures that he or she did not favour your opponent. You did choose the law, but that it was enacted by the state before your dispute arose assures that the judge did not simply make up a rule favoring your opponent. You did not choose the law, but that it was enacted by the state before your dispute arose assures that the judge did not simply make up a rule favouring your opponent. You did not choose the law, but that it was enacted by the state before your dispute arose assures that the judge did not simply make up the law to favor your opponent. Forthermore, you have participated equally with your opponent, according to procedures also laid down by the law. And finally the obligation of the judge to finds legal winner and loser assures you that legal rule which exists above nad beyond tiehr party rather than the judge’s attitude to you or your opponent, will determine the outcome. In a sense the whole history of legal orthodoxy, and all the ritual and paraphernalia of courts, is an endless attempt to address the two against one problem. The basic theory propounded here points us to various mis statements or overstatements in the orthodox prototype while also explaining the persistent vigorous allegiance to that prototype. First, courts may be, or seek to be, independent and neutral at retail, but not at wholesale. Judges may seek not to favour any particular party on a person to person basis. They may also seek to isolate themselves from particular interference from other particular government officials in particular cases. However , precisely because we have made them government officers and charged them to emplou
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Chapter 4 Second book - Introduction to Chapter 4: The...

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