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A Response to Four Readings of A Theory of the Trial

Published online by Cambridge University Press:  27 December 2018

Extract

My goal in A Theory of the Trial was a “rational reconstruction” of the American trial. I began with the conviction that the trial is, in some sense, a successful enterprise. The evidence for this proposition is spread throughout the book and is basically of three sorts—testimony of those who are experienced participant observers, social scientific findings, and the very account of the trial provided in the book. The latter contributes an argument that the trial's “consciously structured hybrid” of languages and practices is consistent with, indeed effectively realizes, intellectual and moral resources that interpret “our considered judgments of justice” (Rawls 1971, 19-20). All of us, even social scientists, always already affirm most of those considered judgments of justice when we think practically, as we must. Not that they are beyond criticism, but we have no Archimedian point or principle from which to criticize them all at once. Since modern people know that we are responsible for our public institutions, we need a mode of practical discourse (at the “metalevel”) by which to understand and evaluate institutions and the practices that occur within them. My book is an attempt at such discourse, and more than one reader has noticed that the argument has a reflexive quality. The book's method itself parallels at a higher level of abstraction the intensely practical discourse that occurs at trial.

Type
Review Symposium on Robert Burns's A Theory of the Trial
Copyright
Copyright © American Bar Foundation, 2003 

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