Sunday, April 24, 2022

Why Law

 

 

  

Law is not the only way to try and control behavior. Psychological manipulation, brute force, and managerial direction are other alternatives. The complaints about law and lawyers are familiar. If you engage in legal processes, they can be slow, inefficient, complicated to navigate, expensive; and, in their process or in their outcomes, unjust. In the face of these complaints and the fact that we have alternatives to governance by law, why should rule by law shape some of the standards by which we evaluate the legitimacy of governments?

To be able to answer that question, we have to first understand what law is. The starting point for my response is a very simple and very thin understanding articulated by a scholar upon whose work I draw upon frequently: Lon Fuller. According to Fuller, law is “the enterprise of subjecting human conduct to the governance of rules.” A set of conditions need to be met in order for that to be possible. Rules have to take a certain form. We can’t govern our conduct on the basis of rules that are kept secret, so promulgation is needed. Neither can rules be contradictory, such that so we don’t know what to do, so rules must be consistent. Nor can rules tell me today what I needed to do yesterday, so rules must be prospective rather than retrospective.

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Monday, April 11, 2022

Emotional Intelligence in the Courtroom



In our society, the court system is quickly becoming a formative institution, performing functions previously relegated to home, family, religious institutions, and schools. Even the healing community is making its way into the court system with the advent of drug courts and other forms of therapeutic jurisprudence.  A judge’s leadership skills are critical in managing the changes in the system, the integrated relationships that develop as well as the impact on their own work. Those most successful will lead with their head and their heart. In Tahiti, there may not be a word for sadness. Nevertheless, the emotion is there with all the attendant signs and behaviors. What is missing is a language, a word that describes the feeling causing the behavior associated with sadness. This kind of literacy is important to develop here regarding emotional intelligence, awareness, and a language for communicating the connection between our cognitive brain and our affective brain, our mind, and our heart, and the result that kind of learning can have on our work and our lives.

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Saturday, April 2, 2022

RESTORATIVE JUSTICE, THERAPEUTIC JURISPRUDENCE AND THE RISE OF EMOTIONALLY INTELLIGENT JUSTICE

 


Restorative justice and therapeutic jurisprudence highlight the importance of empowering parties, of actively involving them in dispute resolution processes, and of using processes that comprehensively address underlying issues.204 They also stress the value of helping parties manage emotions associated with their legal problems and the importance of professionals exercising emotional intelligence skills in their work. The values and processes they promote have significant implications for the functioning of courts, lawyers and the justice system in general. 

They challenge conventional thinking about courts, legal practice and the role of litigants and clients, while offering a richer and more professionally rewarding vision of their respective roles. However, they are not a panacea for the justice system’s problems. Restorative justice is not effective in all cases, and other values of the justice system may outweigh therapeutic values in particular cases.205 Nevertheless, there are good reasons for considering how therapeutic jurisprudence and restorative justice can be more extensively used in the justice system and how their values can be incorporated into legal education. In addition to providing knowledge of the law and its application and advocacy, legal education should provide the interpersonal, intrapersonal and problem-solving skills needed for a happy and successful professional life.

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