Customer Reviews

The Myth of Moral Justice: Why Our Legal System Fails to Do What's Right

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I must say at the outset that I feel slightly betrayed by the NYT on this one. The comment that this book should be read by every law student in America could not be further from the truth. I have never read a book that has been so well reviewed that has offered so little to the debate.

I share the sentiments of Mr. Currie. This book, while undoubtedly drawn from admirable intentions, suffers from several fatal flaws that, in my view, make it a mostly worthless read. I will explain a few of my problems with this book that I find the most troubling.

Firstly, Rosenbaum paints a deceptively bleak picture of the American legal system. Everyone who hasn't had any exposure to the court system would be right to be concerned about the state of our judiciary if it really worked the way that Rosenbaum implies. For example, Rosenbaum talks about the unfairness of statutes of limitation which preclude claims brought after a certain period of time. What Rosenbaum doesn't mention is that statutes of limitations are frequently tolled if, for example, the defendant actively covers up her crime, and that time limits during a trial are frequently extended if the other party has suffered no harm from the delinquent filing. In this way, courts are frequently able to give relief for claims that may be technically filed too late. Similar discussion of ways that the legal system attempt to balance the interests of the parties involved is missing from most of the rest of the book. It simply doesn't portray an accurate representation of the way the legal system works in practice.

This leads me to my second point; Rosenbaum's central theme is that the American legal system needs to be more moral. However, he does not define or explain what he means by morality aside from noting that morality does not have to be synonymous with religious morality. In my view, this is the central flaw in the book. Everyone in America has a different view of morality, and even if we could agree on some central tenants of morality to guide the legal system, Rosenbaum does not seem to realize how a moral system of justice would translate into a pragmatic system for adjudicating disputes. Instead, as Mr. Currie notes, Rosenbaum uses literary and dramatic examples where there is often a clear sense of right and wrong (For example, The Trial, where Joseph K. has clearly suffered injustice at the hands of the law.) In my view, morality necessarily involved compromise and balance - there are no absolutes. And in my experience, while there is clearly room for improvement in the American legal system, there is a conscience effort made to balance the interests of all parties. It is not perfect, but legal disputes more often than not have no clear cut answers - otherwise they wouldn't get to court in the first place. Going back to the statute of limitations example, I do not think that a moral system of justice would allow a plaintiff or victim to have relief against a defendant forever. The goals of justice and finality are both worthy goals of the legal system. If a defendant could bring a claim forever, anyone who has ever done anything wrong (which I would venture to say is all of us at some point) would spend the rest of lives in fear of prosecution. It is hard to see how anything would get done in a world like that - especially as people's private information becomes more accessible and durable on sources such as the internet. The case of the holocaust or war crimes might be an exception, but again, this is an issue of balance, not absolute morality. Just because the result in a case may seem like an unjust outcome, doesn't mean that the process was flawed or that an injustice was done. It may just be the result of a bad case, or a situation where no matter the outcome, neither party could be made whole.

Take another example. There is an inherent tension between a speedy and expeditious trial, which Rosenbaum would support, and longer trial where maybe more facts could come out to present a fuller picture of the dispute. So a speedy trial would be good because it would provide closure, and a longer trial could be good because it could get closer to the truth. Similarly, a quick trial could be bad if it only presents a cursory image of the dispute, and a longer trial could be bad by wasting resources and confusing the issue - like Jarndyce v. Jarndyce. There is no one guiding moral principal that could satisfy both of these concerns. The outcome is a balance between competing goals of morality that Rosenbaum simply does not seem to recognize.

Some of the inconsistencies in the book clearly stem from this failure to recognize that morality is a multi-faceted concept that might be more present in the legal system then Rosenbaum likes to admit. As such, the book is rarely more than a biased critic of the U.S. legal system which offers little to this field of scholarship. In the afterword, he notes a lot of the criticism that he has had from the book, and posits that at least he has got people to talk about the issues. This may be true, but there have been many a better book written on this subject which the reader would be well advised to read before touching this one. Some of the work of Posner and Fuller come to mind.

I guess ultimately my critique is that this book doesn't seem to add anything to the debate. Obviously there is room to debate whether the U.S. legal system should be a moral system or under what circumstances it could be moral (both of which I see as almost infinitely complex questions). The inquiry into Apartheid in South Africa is a good example of a system which decided that finding out the truth was more important than punishing the participants and that hence embraced truth as the overriding moral concern. And that was a controversial and difficult decision that involved many competing interests getting together to find a compromise that would best serve the interests of South Africa. It didn't flow from any fixed or simple idea of morality. Rosenbaum's analysis fails because it doesn't grapple with the really hard questions, or provide any answers. We would all like to see a legal system that provides more justice and fairness, but when we can't even decide what those words mean, it seems frivolous to simply go on a biased diatribe about all the immoral conduct in the legal system without tackling the underlying tensions. Simple storytelling cannot be the full answer. While storytelling may be a solution for some people to air their grievances, telling a story isn't going to pay the medical bills for someone injured in a car wreck, or compensate someone whose retirement has been fraudulently taken. In those situations, settlements (which Rosenbaum mostly rejects) might be the best option because they assure the plaintiff of a recovery and avoid the risk of trial which could be substantial, especially for an unsympathetic plaintiff, or a case where the evidence simply isn't there. Again, these are complex questions.

The editors note that "perhaps provoking lawyers is part of the book's point." But I just don't see provocation for the sake of provocation as being particularly moral or worthwhile. If Rosenbaum and the NYT don't think that law schools are debating these issues today, they are sorely mistaken. We all know that the system is flawed. What is needed is a real debate into how will deal the problems. Unfortunately Rosenbaum simply doesn't provide any help.

I am the type of reader who, even if I think i will disagree with an author's stance, like to give the book a fair shake. Who knows? The author might present a case I've not seen and in the end, it may be worth my time and effort. (It has happened before.) Not this time. I came away from these 300+ pages thinking the book a complete and total waste of my time.

The authors case - if I may be so polite - is that the law should be more moral; it should focus on doing the 'right' thing. Lawyers and judges should become morally sensitive. Law should become more embracing of moral tenets over strict rules and focus on 'healing' the parties involved rather than being an adversarial system focused on settlement for settlements sake.

Here's the problem; the author keeps saying all of these things and NEVER actually explores the ins and outs of this thesis. For instance, when he talks of why judges and lawyers need to focus on 'rightness' rather than procedural minuteia, on 'healing' rather than settlements, he never - not once - gives a glimpse at how such a system would work, whether it is practical, or tackles objections that, at least to me, are simply obvious.

While my objections are too numerous to go into, let me give you a taste of what you are getting with this book. The author writes:

"The winner-take-all structure of the legal systemis moraly deficient because it creates a presumption that justice has been achieved when morally it has not. Sometimes the ultimate winner should not have been victorious... [O]ften, the best moral result would... approximate some measure of victory in both parties - to send them both home healed rather than ambivalent or enraged." (p. 22)

But how do we KNOW who should be morally victorious (when we were not there to know that the alleged defendant did IN FACT commit the crime)? How can a legal system function other than adversarially (can it function communally?) How can a judge (who is not a psychologist) know when both parties are healed (and, say, in a murder, is there ANYTHING that could heal the victim's family in full? Surely not a forced apology!) And how can we measure (as the judge would have to do) when both parties are 'sufficiently' healed? Is it just measured by both parties say-so? If so, does that mean the trial could last 15 years?

My point is simple: the author DOESN'T EVEN TRY to map out either a positive case or handle any of these (what I think are) obvious objections. In the interest of giving the author a fair shake, it would have been nice to hear an argument. I did not. The book merely rehashes paragraphs like the above as if the positive case is self-evident (it is not) and objections don't exist (they do).

Another flaw is that the author cites (almost exlusively) fiction books and movies to make his case. "Since in x movie, we know that x was guilty and got off, the legal system is not fair." But the flaw is that there is a difference between fiction and life. In movies, we often KNOW who is guilty. Thus, it is easy to say, "the morally right decision is x because this character did it; we saw her do it on screen." In life, we rarely come in knowing who is guilty like in the movies. Thus, citing movies is simply too easy; saying, "X is the right answer becasue we know SHE did it," presumes... that we know she did it! Thus, making the 'morally right' decision is easy in the movies; but sadly, the author does little to differentiate the fantasy land of movies from real life quandaries.

It is no exaggeration to say that I could go on for pages citing errors like these! While I can somewhat sympahtize with the author's plight on a 'gut level,' his failure to explain a positive case, sheer repetitiveness of claims he simply ASSUMES to be self-evident, and absolute failkure to handle ANY objections left me dissapointed. Simply put, this is one of the few books I can say was wasted time.

This book is worthless; I finished reading the first chapter, and I cannot bear to go further. It's that bad.

I am an attorney, and much of what the author writes is simply wrong. There are countless times when the author misapplies the law, and his description of our legal system is unrecognisable. The author apparently thinks that basing his argument almost entirely on fictional novels and movies is a good idea. His other main source seems to be himself, but the legal system that he describes has nothing to do with the one I know. Judging by the introduction, the author's career involves civil law and writing novels, which might explain why he fumbles so badly when discussing criminal law and morality.

Don't waste your time with this book. There is nothing of value within its pages.

There is not much more to say than what is said by the other 1 and 2 star reviewers. The book is filled with the way Rosenbaum wishes the world could be, but is completely divorced from how the world actually is. There is no support for his arguments outside of fictional creations and conclusions drawn from anecodotal stories. Nor does he even try to explain how the world he imagines might come into being.

This book concludes with reform: this moral justice system may be agreeable or may not be agreeable; however, the majority of citizen will be unhappy with the perceived moral failings and disenchanted with the justice system. There is little question that all of us would be infinitely better off if there was a symmetry and alignment between legal results and moral outcomes. The moral and the legal should not be so irredeemably and irreversibly split. Preserving our social order is one thing; abandoning other communal values and losing our souls is quite another. In a new paradigm of moral justice, courthouses would provide us with a forum in which to express our stories of hurts and grievances--uninterrupted, unredacted, indulging, whatever emotional releases and excesses accompany our words. The acknowledgement of our harms and the way we have been injured or victimized would become paramount. And every striving would be made to allow us to confront those who have wronged us, making them aware of the lasting damage they have caused. Perhaps they, in turn, will speak sincere words of regret and accept responsibility of their actions. The breaking of our spirits--whether by way of humiliation, disrespect, or indignity--will find redress equal to the remedies the legal system provides for broken body parts. Lawyers would become less interested in winning than in truth, and less inured to the pain of their clients. Judges would deflate some of their self-importance, and recognize that their courtrooms are indeed emotional cauldrons that cannot be so easily simmered or tamed. A dramatic transformation of the legal system will come only if there is a groundswell of public sentiment, combined with the aspirations of some lawyers and judges to invigorate the law with a renewed moral consciousness and spiritual awareness. It would help if moral education was more highly valued in our schools, in our churches, synagogues, [temple and gurdwaras], and mosques, in our government, and in our society. The right way can be contagious, but somebody has to catch it first, and then pass it on. The legal system--so far behind--can't invulnerable forever. Public schools around the country have recently introduced moral issues into their curricula, from discussions about the Holocaust, apartheid, and American slavery, to the relative merits of punishment and reconciliation, to understanding the consequences of moral indifference. What I'm speaking of is moral reform--not mechanical changes from within, but human values that can be implanted in the law, virtues that derive from the very best of humanity. What's necessary is not a complete overhaul, but an appeasement, a joining of the legal and moral, a consolidation between legal precedent and private conscience, between the reasoned reliability of law and the subject leaps of moral conviction. It's not a matter of scrapping, but rather of modifying the mindsets and procedures that have long since sedimented in our judicial system. We need a massive attitude adjustment--among citizens and practitioners--legal-renewals movement that seeks a change in what we expect from the law and in what lawyers and judges expect from themselves as servants of the law. if the law could provide us with moral lessons in addition to legal precedents, there would be less reason to seek an appeal. Private conscience should not answer only to abstract moral standards without the force of law equally and solidly behind it. Some entities and organizations have offered serious suggestions for reform, but have this far gained little attention. The international Alliance of Holistic Lawyers, the International Center for Healing and the Law, the Project for Integrating Spirituality, Law, and Politics, the Renaissance Lawyers Society, and Legal Sanity, through their conferences, newsletters, websites, and blogs, have raised awareness of the spiritual consequences of the conventional legal paradigm. The law and literature movement in law schools across America has elevated many of these themes by teaching novels, plays, and films, and intersections between morality and justice, to future lawyers. it is amazing how Kafka, Dickens, Sophocles, Shakespeare, Camus, Dosoevsky, and Melville, among so many other artists, each writing from different time periods and geographic distances, managed to charge the same indictments and draw the same conclusions about the law. All of their work constitutes a manifesto of reform, a literary rebellion against the soullessness and spiritual violence of the law.

Without application of the synergism of the moral justice system as suggested in this SJD dissertation, this wonderful book, paradoxically and ineffectively, digs the problem between the conventional legal paradigm and its suggestions for new paradigm of moral justice. However, the book failed to suggest the secular and spiritual factors to establish the moral justice system beginning from the teachings and learning theories of morality in law school to empirical methodological applications from secular to spiritual and spiritual to secular applications in the bar and bench for universal morals for universal welfare and order, as may be drawn from the worlds secular and religious scriptures of different faiths. In the light of spiritual and secular wisdoms and divine inspirations for the sake of moral justice system, this dissertation, before and hereafter, will propose the neutrality as the key concept of moral justice conceptualized from Shrimad Bhagavad Gita to draw fine lines and distinctions between: soul versus body, impartial versus partial, good versus evil, right versus wrong, divine versus demoniac, truth versus false, science versus nescience, spiritual versus secular, justice versus injustice, moral versus immoral, above all right versus wrong, vice versa, among others.

Shrimad Bhagwad Gita identifies: 1) Secular (Partial) Code of Conduct: Samkhya Doctrines: Eternal Being transforms into Conscious Being and twenty-four transformations: Mind (Manas), Intellect (Buddhi), Thought Waves (Citta), the elements, air, fire, water, and earth), the five sense objects (sound, touch, sight, taste, and smell), the five sense organs (ear, skin, eyes, tongue, and nose), and the five organs of action (mouth, hand, leg, anus, and urethra); Mother Nature and Consciousness, Three Qualities of Mother Nature: Sattva or Good; Rajas or Passion and Activity, Tamas or Ignorance and Inertia; Banyan (World) Tree and Mother Nature; Threefold Faith; Five Causes of Action and Three Type of Renunciation; Tests of Devilish (Virtue) and Demonic (Vice) Estates; 2) Spiritual (Impartial) Code of Conduct: Transcendental Knowledge; Niskama Karma Yogi (renunciation of desires [selflessness] and attachments by Meditation) attains renunciation with knowledge: Self Knowledge and Supreme Knowledge; Eternal Being; Self-Realization or Self-Consciousness to achieve super-consciousness by Meditation: Trance by inhalation into exhalation and exhalation into inhalation (Samadhi), Self-Purification (Nirvikalpa Samadhi), Innermost-Self (Purified Mind and Intellect) in Super-Soul by Meditation (Anta-Karana Samadhi); Self-Realization of Oneself.
The synergism of moral justice system is founded from allegorical studies from: east and west civilizations' historical literatures of the United States Supreme Court Building and Shrimad Bhagavad Gita. Thus, Shrimad Bhagavad Gita, as divine inspiration, knowledge, and wisdom, among others, is the "Scripture of Moral Justice--Neutral or Equal or Impartial Justice under Law upon Truth (Good) than False (Evil)."

The combined factors are equal justice under law upon truth (good) than false (evil). Equal Justice is founded on impartial than partial, knowledge of right and wrong, battle of good and evil, equity, divine knowledge, meditation, and wisdom. The law is explained old and modern scriptural injunctions, evolution of law and justice, law givers and seers, and their morals. Truth and false is founded on good and evil. This good and evil is described as impartial and partial, truth and false, spiritual and secular, wise and ignorant. The theory and empirical studies are developed founded on within and beyond Mother Nature. This within and beyond studies are divided in four levels, which are supreme, eternal, divine, and demoniac. The two positive and negative testers are developed based on supreme, eternal, divine, and demoniac. The concept of impartiality is the key element of moral justice system. This concept of impartiality includes the impartial in different names and forms as divine knowledge, wisdom, meditation, devotion, surrender etc. The concept of moral justice system discusses the problems of judicial participants to remain as impartial in partial, tautology of impartiality, pedagogy of impartiality, paradigms and syllogism of theory of impartiality, empirical studies of impartiality, problem areas of law and free will, doctrines of impartiality for moral code of conduct, and diagram of theology to provide divine inspiration to judicial participants.

The Part One discusses the modern justice system failed to implement justice under law upon truth needs good and high moral characters based on judicial participants' oath and affirmation of bounded conscience of faithfulness and truthfulness. The part two discussed the empirical studies of impartiality or partiality paradigms of moral justice system and light tree conceptualized on Shrimad Bhagavad Gita based on doctrines of neutrality or impartiality in different names and forms to guide the judicial participants.

The part one contains chapters 1 to 5. Chapter 1 discusses the hypothesis, problem statement, research question. Chapter 2 discusses the allegorical studies of Supreme Court building as correlation to its functions and sculptural subject matters, their relationship with the impartiality in different names and forms as the key concept of Shrimad Bhagavad Gita. The value of oath and affirmation is disregarded by the judicial participants because they failed to impress their mind to awake their conscience. Chapter 3 discusses the methodologies, instruments, data collections, rationale of the studies. Chapters 4 and 5 discuss the failure of judicial participants' moral character and high moral character and oath and affirmation as required by professional codes, sanctions, perjury, and crimes, among failure of the requirements of their faith. The requirement of scriptural guidance as functions described on the Supreme Court Building and preached by their Holy Scriptures or law givers and seers.

The part two contains chapters 6 to 9. Chapter 6 discussed Arjuna's dilemma and Judicial Dilemma. This chapter discusses the real world problems of partiality from real world problems such as paradigm cases. This chapter discusses both problem of Mahabharat Battlefield and the Court Scenes, which memorizes the awakening of conscience and impress the mind and intellect for telling the truth.

Birth of Shrimad Bhagwad Gita in Battlefield of Mahabharata: Supreme-soul, Shri Krishna ("Krsnaastu Bhagwan Swyam"--means that "Shri Krishna is the Almighty Supreme Lord") is the Twentieth Reincarnation of Vishnu out of Twenty Four reincarnations (Twenty First was Lord Bhudda and Twenty Fourth will be Kalkiavtar) who reincarnates with reason of: Hey Bharat! Whenever loss of Dharma and increase of Adharma happen; then and then, I create My-Self in Physical Body because to bless virtues human beings, to destroy evil human beings and to establish Dharma in age and again. Shri Krishna demonstrates to correct the desire of confused Arjuna, His friend and disciple, answer the questions on the subject matter of Dharma and Adharma (What is righteous and unrighteous in the Battlefield dealing with adversaries; even if, they are relatives or friends?) to fight for uprightness than coward because of confrontation of teachers, relatives and friends in the battlefield, and to select fight or to surrender for avoiding destruction of eternal family traditions, social orders, living in Hell because of sinful act of killing teachers, uncles, sons, grandfathers, maternal uncles, father-in-laws, grandsons, brother-in-laws, and other relatives, and friends merely for tasting the blooded wealth and desirable consumptions of world because he will prefer to beg food than to kill them even for the kingdom of three world why only for kingdom of Earth.

Paradigm of Moral Justice System Conceptualized from Shrimad Bhagavad Gita

I. Theory

Allegorical Studies: Supreme Court Building and Shrimad Bhagavad Gita
Law and Practice by Judicial Participants
Oath and Affirmation (Awakening Conscience by Impressing Mind)
Eternal Truth and Faith False

A. Impartial Justice (Neutrality)

Supreme Eternal Corporeal

Spiritual Secular

Light Tree, Truth, Faith Mother Nature--Three Modes, Truth, False, Desires,
Five Causes of Action, Human Goals, Duties

B. Four Kinds of Judicial Participants

Wise-Impartial Ignorant-Partial
Supreme High Middle Lower
Beyond Divine Demonic Demonic

C. Moral Testers:

Positive Negative
Beyond--Impartial Within--Partial
Eternal and Divine Demonic

Moral Wonder: Nature in Spirit and Spirit in Light Creates and Merges all Beings with Help of Partial in Impartial--Eternal, Divine, Demonic (SBG 9.4-10)

II. Empirical Studies

Impartial--Spiritual Partial--Secular
Self-Knowledge, Action, Study of Impartiality in three modes of Mother
Devotion, Faith, Surrender Nature: in knowledge and action, control of mind
by intellect or knowledge than action or inaction)

A. Problem Areas: Laws and Free Will

How one may be Impartial in Partials? Nature in Spirit Moralizes. Spirit in Light Moralizes.

Spirit Will Man Will Natural Will--Karmic Impressions
Spirit Faith Action Knowledge Agent Intellect Resolution Pleasure

B. Resolution: Impartial Spirit Attracts Partial Mother Nature

Understanding: Detached--Self-knowledge and Selfless action, and Attached--Devotion and Faith;
Neither Detached Nor Attached--Impartial Knowledge

Meditation: Awakening Conscience by Impressing Mind by lessons of impartiality;
Spirit in and out Mother Nature is Stronger Controlled by Supreme Impartiality

C. Goal of Justice: Spirit is Impartial than Partial

Liberty: Free and Equal Liberation: Free and Equal
(Lust, anger, and greed) (Impartial Knowledge and Intellect)

Law and Order--Universal Order and Welfare

Read and Test also Pedagogy of Impartiality and Light Tree to Support Modern Justice Systems when the book will be published by Golden Gate University, San Francisco, CA or if not then by me:

Dr. Brij Mohan Dhir is a double graduate of Punjab University, Chandigarh, Punjab, India, and he did the LL.B. from Bhopal University, Bhopal, Madhya Pradesh, India. He did the Juris Doctor from British American University, California and the LL.M. from Golden Gate University, San Francisco, CA. He is an advocate from Bombay High Court, Mumbai since 1981. He has litigated many cases in area of police authorities, film industry, Corporations, Civil and Criminal, civil rights and human rights, among others. He was Professor of Law in British-American University, Los Angeles, and East Bay Law School, Oakland, CA. He taught online classes on Tort, Contract, Constitutional Law, among other law subjects in British-American University. He also taught Advocacy--Thinking Like a Lawyer (IRAC) in East Bay Law School, Oakland, CA. He is Ph.D. in Astrology, and as an Astrologer he informed President Bush, President Obama, and Hillary Clinton, among others, about the future of United States in the Iraq and Afghanistan Wars. He is interested to develop doctoral programs for Astrology, and Law and Astrology. Although, Dr. Dhir appears or will appear for the State Bar Exams of New York, California, and Washington DC, among others.

I agree with the NY Times reviewer - all law students should be required to read this book, but would add that all practicing lawyers should read it too. An excellent and well written book, which just might make lawyers slightly more humane.