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An Evolution in Legal Ideology

Module by: John Bosco. E-mail the author

Summary: The legal world is not black and white. It is black, white and black. Hence, it is best viewed through three windows not two.

     
Either by accident or on purpose, a legal ideology has evolved within each of us. We are its prisoners. It stands between us and the legal world and filters our view of it.

     
For many, it is a prison with only two windows. From the first window, a legal thinker sees 'Yes, it is' and from the second window, a legal thinker sees 'No, it is not'. The ability to distinguish between 'Yes, it is' and 'No, it is not' , however, is nothing special. Any layman untrained in the law can make such a distinction.

     
The legal world is not seen clearly when we bifurcate it using a simple distinction between 'Yes, it is' and 'No, it is not'. Why? The legal world is trifurcated. Hence, three windows - not two - are needed to properly view it. The three windows correspond to the three opinions that a lawmaker can hold about the facts.

     
How far has your legal ideology evolved? Do you view the legal world through two or through three windows? Are you only capable of making a distinction between 'Yes, it is' and 'No, it is not'? Or can you distinguish the three opinions that a lawmaker can hold about the facts? Your answer to the following question will tell us the status of the legal ideology you presently possess.

     
I am assuming you have for many years driven or ridden in a car? Drawing from this experience, tell us: is a motorist permitted to go through a green traffic light?

     
The answer of the bifurcated legal thinker is 'Yes'. A trifurcated legal thinker answers 'No'.

     
A bifurcated legal thinker figures out the answer to the question by reasoning that either 1) Yes, a motorist is permitted to go through a green light or 2) No, a motorist is not permitted to go through it. When the answers are framed using the 'Yes, it is' versus 'No, it is not' distinction, the better answer is obviously that a motorist is permitted to go through a green light.

     
Although the bifurcated legal thinker picks the best answer that his legal ideology offers to him, the 'Yes, it is' versus 'No, it is not' distinction gives the bifurcated legal thinker a flawed view of the legal world and carries the bifurcated legal thinker to the wrong answer. Why? The legal world is not black and white. It is black, white and black.

     
Before the eyes of the trifurcated legal thinker are the three permutations of a law. The three permutations reflect the three opinions that a lawmaker can have toward the facts The three permutations are 1) permitted to go or to stop, 2) Commanded to stop, and 3) Commanded to go. If a lawmaker permitted a motorist to go through a green traffic light, the lawmaker would also be permitting the motorist to stop because that is the nature of a permission. With a permission, the decision whether to stop or go is made by the motorist. A lawmaker, however, does not want a motorist to stop at a green traffic light. A lawmaker wants a motorist to go through a green traffic light. Hence, a lawmaker substitutes his decision for the decision of the motorist and commands a motorist to go through a green light. Hence, it is not correct to say that a motorist is permitted to go through a green light. It is only correct to say that a motorist is commanded to go through a green light. A command and a permission are two different laws. Sometimes, a sloppy legal thinker confuses the two.It is legal to go through a green light not because it is permissible but because it is mandatory.

     
The correct answer is not available to the bifurcated legal thinker. Unless the legal ideology of the bifurcated legal thinker evolves, it is apt to carry the bifurcated legal thinker to the wrong answer. Only a trifurcated legal ideology can carry the legal thinker ineluctably and invariably to the correct answer. Therefore, isn't it time that your legal thinking evolves?

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