Gavel Gamut
By Jim Redwine
(Week of 14 September 2015)
PROBLEM SOLVING
Problems must be solved in all jobs. Physicians diagnose and treat. Engineers design and build. Plumbers stop leaks. Carpenters repair roofs. Lawyers and judges are charged with solving social problems, dilemmas arising from life’s complexities.
Often these social problems are matters of first impression for which prior solutions will not work. This is particularly true as technology advances and creates situations once reliable legal formulae do not fit. For example, the law of libel and slander that for many years was adequate for books, radios, newspapers and television needs renovation when Facebook or Twitter raise their heads.
The law concerning steamboats and railroads is not adequate when people operate automobiles on public highways with their knees while their thumbs and brains are lost in texting.
Positive laws, legislative responses to such “advances†in human development, are more likely to help assuage new legal problems if sound legal theory is at their foundation.
Legislators, lawyers and judges are society’s legal problem solvers. Of course, not all responses to new problems successfully address society’s needs. Sometimes new laws are poorly thought out and sometimes lawyers and judges fail to properly apply sound legal theory to unique factual situations. Such cases as Dred Scott or Bush/Gore come to mind.
As our friend, Professor Jerome Hall, says:
“Every sound use of legal method is an experience in truth-seeking and right-seeking that has inherent value ….â€
Hall, Living Law of Democratic Society, p. 46.
In other words, unsound use of legal theory will lead to unjust outcomes but properly understood and applied Legal Theory will help lawyers and judges resolve legal problems that do not lend themselves to stock approaches:
“Legal problems cannot be solved by the perfunctory application of established norms but call, instead, for the discovery of the particular right action that fits the problem at hand, and whose application is feasible.
…
[legal problem solving] requires recognition and comparison of meanings, the application of general rules to specific facts, the imaginative discovery of principle, and the testing of hypotheses against the facts.â€
Hall @ p. 50 – 51.
What all this means to a lawyer’s client with a unique problem or litigants in court before a judge is the lawyers and judges should first seek truth and justice then fashion a sound approach to achieving it.
