Bork's View On Philosophical Morality Being example essay topic

This paper touches on points made between four lawyers in the discussion on how it would be possible to get reparations for slavery. Is reparations for Blacks plausible? Does statement in their discussion have credence in the court of law, or is it merely just outcome over process? Views coming from Robert H. Bork (author of The Tempting America) and Stanley Fish (author of the trouble with Principle), will also be covered to agree or disagree with statements made in the Harper articles. These four lawyers (Willie Gary, Alexander Pires, Richard Scruggs, Dennis Sweet) have come together to discuss to find a way to get reparation for African American's for not only just slavery but also the affects slavery had on the Black population. Their first legal strategy is to file the case a simple lawsuit.

"After the war, former slaves were promised forty acres and a mule, and we never got it" (Gary 57), and because of this they are trying to file this as a breach of contract case. The issue of statue of limitations arose but was quickly refuted by Sweet, "Is an injustice no longer an injustice so long as you get away with it for a long time?" (Sweet 58); which shows that Sweet is a lawyer who favors outcome over process. I'm sure that Fish, being pro outcome, would be in support of Sweet and use the idea of his neutral principle to give him leverage on this issue Which brings me to the thoughts of Stanley fish and his views on "neutral principal". In his article he goes on talking about the myth of the neutral principle, and it's impossibility for anyone to be absolutely neutral. For you to be neutral you need to be able to lay the groundwork of what the words "equal" signify. How can anyone make the decision of seeing if it "would be fair to distribute goods equally irrespective of the accomplishments of those who receive them, or would it be fair to reward each according to his efforts" (Fish 39)?

This paradox clearly shows that you may achieve being "fair" by choosing either outcome, but by going to one side of the issue, you are being unfair to the other side, thus further implicating the myth of the "neutral principle". It is because of the groundwork needed that one may use the idea of neutral principle in order to gain leverage or support for their cause, using this idea to "support higher and deeper than the support provided by it's own substantive thrust" (40). These Lawyers' arsenal for reparations will consist of the idea of "fairness" towards the Black community. Many politicians and judges use this concept to clarify that they made the right moral decision. Not one person can be truly impartial, the lives we lead have constructed certain bias in which we are comprised of and to attempt to become impartial is to deny our past and ourselves. Though judges try hard to work with the system and be impartial, it unrealistic for judges to use their morality in order to decide on an outcome in a court trial.

Contrary to Bork's views, Fish is all for putting the ends before the means. Despite the fact that this would completely contradict Bork's view of Process over outcome and the judicial systems strict adherence of the law. Throughout every court preceding, judges play a crucial roles; Bork believe that there are two types of judges. One who adheres to the theories of constitutional laws sought out by original understanding and the ones who don't, referred to as the revisionist theorist.

His main quarrel with judges is their ability to, at any given court trial, make decisions on the outcome based on their own moral philosophy instead of referring to our Constitution. When the constitution was written it took into consideration moral philosophy and should be a guideline that all judges follow. One of the many flaws that Bork points out is that "a moral philosophy necessarily rests upon a belief that not only is there a single correct moral theory, but in today's circumstances, all people of good will and moderate intelligence must accept the theory" (Bork 6). Professional philosophers throughout time have deliberated over issues pertaining to law and morality, with the great minds of our planets history each giving their two cents and still not coming to even remotely close to agreeing; what makes a single judge possess the audacity to express his moral opinion as the one great mind to rule over all others. Even if there is a Judge as conceded enough to think that his word and moral belief will always be the correct one and is correct in assuming that; the impossibility of the public in themselves to agree on that judge's decision is great. In every occasion in the short live years of our nations history the basic model is to place all disagreements to a vote.

Democracy is how our country is labeled in all aspects except for that of a judge's moral interjection. Bork further elaborates by discussing that even by the unimaginable chance that both the judge is correct morally and everyone agrees on it, "there would be no need for constitutional judges since legislation would embody the principal of that morality" (7); basically meaning that if there is such a theory, it would be put into the Constitution and would not need any further amending on behalf of judges. Either way you look at it, whether you have both the judge with his neutral principles and public behind his position, or have neither; it leads you to the same conclusion of not needing judges' decisions based on moral philosophy and their idea of neutral principal. Though Bork may not agree with Gary's first legal strategy, there may be a slim chance he may with the second, mainly because it involves pushing the judgment on congress and not the judges. The 2nd part of their game plan is to get a law suit against many huge corporations that Blacks help build, and those that denied blacks civil liberties from slavery days to the present day; while at the same time sue local, state, and federal governments. The idea is to get a national audience, which in turn will get a public outcry that "can affect the way a judge is going to rule.

It can make him not want to rule, it can make him hold and then perhaps Congress will step and you can talk settlement" (Gary 64). This way Bork's view on philosophical morality being push into laws by judges, will not be affected. How ever this would contradict his view on laws being undermined by moral philosophy. He is convinced "that law is being seduced by politics and is thereby losing its integrity as a discipline" (Bork 15). If this case is presented and reparations for thousand of Blacks are awarded, the basic meaning of the law (in this aspect) will be wiped away, and every group from all time periods that have been discriminated against will be in demand for their slice of the pie. What was originally a plan to help African American would then become a legal nightmare.

To sum up, Reparation in the form of money seem to be a ridiculous idea, though the lawyers are also trying to push for governmental programs to be initiated; but even then this is an absurd idea mainly because then every one else in our country will be looking for their "fair" share. With the exception of Pires who actually suggest to work pro bono, all of the other lawyers in the article are bloodsuckers waiting to take a bite out of cash cow. The opinions expressed by the Harper article for the most part do not have credence in the court room, but leave much in term of outcome. It is through this outcome that new laws have will continue to be forged despite those who disagree with it. Fortunately, the Harper Articles did give me insight and more understanding of the various philosophical issue in reading Bork along side Fish, in that it forced me to put apply certain value and ideas to an actual court case, and I came out understanding more side of an issue than just one narrow one.