An analytic model of the normative field of appellate judges
Denman, Alvin L
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This dissertation constructs and illustrates a model of the field of norms which lies before an appellate judge. The style of the model is both academic and graphic. The function is analytic. The method is phenomenological, analytic and synthetic. Three major illustrations--landmark cases--provide a synthesis and explanation at the boundary lines of the field sectors. In Chapter II, the structural elements of the field are analyzed. First, the field is encircled and divided into thirds along a scale of normative agreement-disagreement, noting, concurrently, correlative social processes which provide social order. Where there is normative unity, processes of prescription provide order; where plurality, collaboration; where diversity, reciprocity. Second, the field is divided into three levels. Within the ultimate-mediate-proximate hierarchy, there is an inverse relationship between formal and situational authority. When norm components (subject, normed-act, and conditions of application) fit the case, lower norms exert more influence than do hi gher norms. When fit is at issue, higher norms control. Third, the sectors which lie between the three processes of social order are identified and examined as basic social units whose functional specializations are guided by particular norm types. The cultural (religious, familial, educational, and artistic) sector is bounded by processes of prescription and reciprocity; persons feel themselves to be duty-bound and conscience-directed by patterns of being and belonging. The economic-political sector is bounded by processes of reciprocity and collaboration; persons feel the necessity of choice and calculation of means and ends in order to achieve their interests. The legal (primarily judicial) sector is bounded by processes of collaboration and prescription; litigants feel the process by which they will be judged should be fair, and the content should be more than legal; judges feel they should account to litigants and various publics for their actions by reasoned reference to legal standards which respond to the whole life-range of norms. Finally,the hierarchical levels of the three sectors are examined and described separately. The cultural sector is differentiated into ethos, moral code, and mores; the economic-political sector into goals, policies, and needs; the legal sector into concepts, rules-in-books, and rules-in-action. In Chapter III, the focus is upon functional elements at the boundaries of the units of the normative field. The problem is to understand how sectors and levels are maintained as separate yet interdependent units. First, a range of inter-level actions is analyzed. Next, the three normative processes--prescription, reciprocity, and collaboration--are examined in detail on both sides of the boundary and at each of the normative levels. The difference at the legal-cultural boundary is illustrated by Griswold v. Connecticut, in which the Supreme Court made explicit as legal precept what was already implicit in the moral code--the right of married persons to use contraceptives. At the legal and economic-political boundary, Mac Pherson v. Buick shows how the New York Court of Appeals imposed a principle of due care upon manufacturers' policies. The eventual importance of action at the cultural and economic-political boundary is illustrated in Chapter IV by the School Segregation Cases. There the Court bolstered efficient against traditional norms for ordering racial diversity by making explicit the creed of equality as fundamental law and imposing a doctrine of federal supremacy on citizenship questions upon states-rights ideology. Concluding, the appropriateness and general fit of the illustrations to the theoretical model support the assumptions that appellate judges make their decisions within a patterned normative field, and that the pattern can be found and described analytically.
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