Law, Justice, and Society:A Sociolegal Introduction

Chapter 2

Justice and the Law

Justice and the Law

What is Justice?

Where does it come from?

What is its relationship to the law?

Justice and the Law

Aristotle

“Justice consists of treating equals equally and unequals unequally according to relevant differences.” Dometius Ulpanius

“[Justice is] the constant and perpetual will to allot everyman his due.”

What is Justice?

Justice and the Law

How a political entity distributes resources to its members

Rightful, merited, and deserved distribution Not about need Just distribution depends on the individual’s

contributions and value to the community

Distributive Justice

Justice and the Law

Retributive justice is concerned with how a society determines guilt/innocence (procedural retributive justice) and how it determines the proper punishment (substantive procedural justice)

Substantive law places limits on individuals’ actions

Procedural law places limits on the agents of the state as they enforce substantive law

Retributive Justice

Justice and the Law

Concerned with individuals getting what they rightly deserve according to their behavior

To be just, a society must punish with fairness and impartiality

Equals must be punished equally and unequals punished unequally according to relevant differences

Retributive Justice (cont.)

Justice and the Law

What is relevant?– Example: Amount of harm done by criminal– Race, religion, sexual orientation– Differences of conduct, not of ascribed statuses

Equality of pain versus equality of instrument– Example: day-fine system

Sentencing disparity– sentencing guidelines seek to ensure just

punishments by taking into account relevant differences

Retributive Justice (cont.)

Justice and the Law

Operationalizes Aristotle’s definition of justice by assigning numbers to various aspects of the crime and of the criminal’s characteristics

Characteristics of the crime taken into account:– statutory gravity of the crime (first or second

degree)– if the defendant was on probation, parole, or bail

when the crime was committed

Sentencing Guidelines

Justice and the Law

Characteristics of the crime taken into account (cont.):– the amount of monetary loss

– aggravating and mitigating circumstances Characteristics of the criminal taken into account:

– prior felonies and misdemeanor offenses

– prior probation, parole, or bail violations

– any prison time previously served by defendant

– mitigating factors (family bread-winner, substantial law-abiding behavior, voluntary restitution, etc.)

Sentencing Guidelines (cont.)

Justice and the Law

What are relevant differences? (conduct versus socially ascribed statuses)

Process may be identical but result cannot be identical under current socioeconomic system– justice is another commodity for sale– best justice money can buy

Problems with Aristotle’s Definition

Justice and the Law

The study of legal decision-making Examine how law is practiced rather than how

it was written Law only becomes “real” in the hands of

judges and administrators and thus law can be studied in action

Maintain that law is indeterminate due to differences in legal decision-making

Legal Realism

Justice and the Law

Naturalistic Perspectives Transcendental perspective Evolutionary perspective

There is a natural basis for law based on an inner voice yearning for justice

Differ on the source of that inner voice

Where Does Justice Come From?

Justice and the Law

There are timeless and universalistic laws that transcend all societies and cultures

Even when natural law conflicts with human law, natural law should be followed

The “ought” of law runs downward from some transcendental realm to humans through jurisprudence and education

Agrees with Plato’s concept of forms Considered a “law within a law”

Transcendental Natural Law

Justice and the Law

Has been used to bolster government– divine right of kings

Has been used to refute government authority– Declaration of Independence

Transcendental Natural Law is not always religious; secular humanists assert that humans have an innate sense of fairness and justice

Transcendental Natural Law (cont.)

Justice and the Law

The scientific equivalent of the transcendental perspective

Attempts to explain why we have law in general and certain laws specifically in reference to the principles of evolutionary biology

Law is natural because it flows from the evolved nature of Homo sapiens

The ability to formulate, articulate, and understand rules. . .undoubtedly had a significant impact on subsequent hominid evolution (Gruter 1991, 61).

Evolutionary Perspective

Justice and the Law

Humans are biologically predisposed to make certain choices because such choices promoted the survival and reproductive success of our distant ancestors in evolutionary times

Choices important to well-being are hardened by positivist law

The most important choices eventually generate a belief that they originated in some transcendental realm

Evolutionary Perspective (cont.)

Justice and the Law

Evolutionary perspective is concerned with what is rather than what ought to be; morally neutral

Does not preclude necessity of morality Naturalistic fallacy: assuming that what is is

the same as what ought to be– rape– gratuitous violence– cheating

Naturalistic Fallacy

Justice and the Law

Evolutionary thinking in relationship to the law in literature (e.g., Browne 1997; Cosmides and Tooby 2006)

Society for the Evolutionary Analysis of Law– Vanderbilt University

Evolutionary Perspective in Action

Justice and the Law

Morality evolved as a challenge to exploitive behaviors

Moral outrage is the basis for revenge– revenge makes real credible threats against amoral

behavior Moral outrage buttressed by retaliatory action is

therefore a plausible candidate as the basis of our sense of justice

Laws are learned, but are motivated by our innate need for justice

Source of Justice

Justice and the Law

Law and justice are not identical– legal realism: describing what the law is rather

than evaluating its moral content– Code Louis of 1670

The goal of positive law should be to bring itself in conformity with what is just

What Is the Relationship of Justice to Law?

Justice and the Law

Common law of England was rigid and overly technical; not just

Equity courts, or Courts of Chancery, were created to temper common law courts with flexibility; focused on inherent justice

As a result, common law courts became more flexible and realistic and equity courts became more knowledgeable in the law

Any distinction between two courts was eliminated in 1875

Equity and the English Courts

Justice and the Law

Nineteenth-century courts were focused on the letter of the law– caveat emptor

Twentieth-century courts became more concerned with equity in justice– holding companies liable for their product

Example of equity in courts: Riggs v. Palmer (1889)– Interpretation of law by principles

Equity and the American Courts

Justice and the Law

Garofalo and Natural Crime– disagreed with “crime is what the law says it is”– sought to describe laws that were universal– natural crimes would

• offend natural sentiments of probity• offend natural sentiments of pity

– differentiates between mala in se and mala prohibita crimes

Progression of Due Process

Justice and the Law

The Rule of Law– Laws change but the Law must remain (Reichel

2005, 175).

1.A nation must recognize the supremacy of certain fundamental values and principles

2.These values and principles must be committed to writing

3.A system of procedures that hold the government to these principles and values must be in place

What kind of a system can do this?

Progression of Due Process (cont.)

Justice and the Law

Due Process– procedural retributive justice that is due all persons

whenever they are threatened by the state with the loss of life, liberty, or property

– a set of instructions informing agents of the state how they must proceed in their investigation, arrest, questioning, prosecution, and punishment of individuals suspected of committing crimes

– not something a person earns: something that is due to everyone without exception simply because of their humanity

Progression of Due Process (cont.)

Justice and the Law

Cesare Beccaria and Reform– On Crimes and Punishment– plea to humanize and rationalize the law and to

make punishments more reasonable Laws should be designed to preserve public

safety and order, not to avenge crime

Due Process Rights

Justice and the Law

Accused should be able to confront accusers Accused should know the charges brought

against them Accused should have a public trial before an

impartial judge as soon as possible If guilty, the punishment should fit the crime Should be applied without reference to the

social status of either the offender or the victim

Cesare Beccaria and Reform (cont.)

Justice and the Law

Abolition of the death penalty Promoted mild and merciful punishment

– should only exceed the level of damage done to society

Punishments for specific crimes should be written

Judges should only have the task of determining guilt or innocence, not deciding on punishment

Cesare Beccaria and Reform (cont.)

Justice and the Law

To be secure in one’s home To confront one’s accuser To know of the charges against oneself To secure counsel To be tried by a jury of one’s peers To be free of excessive bail To be free from cruel and unusual

punishment

Rights Denied in the Lettres de Cachet

Justice and the Law

Magna Carta (1215) Statute of Winchester (1275) Petition of Rights (1628) Bill of Rights (1689)

Origins of the Bill of Rights

Justice and the Law

Ideal models which explain how justice and the law interface

Reflect different value choices that undergird operation of the criminal justice system

Crime Control Model– embodies traditional conservative values

Due Process Model– embodies traditional liberal values

Packer’s Models of Criminal Justice

Justice and the Law

Emphasizes community protection from criminals

Civil liberties can only have real meaning in a safe, well-ordered society

It is necessary to suppress criminal activity swiftly, efficiently, and with finality

Cases are handled informally and uniformly– assembly line fashion

Appeals must be kept to a minimum

The Crime Control Model

Justice and the Law

Reduced to its barest essentials and when operating at its most successful pitch, [the

crime control model consists of two elements:] (a)an administrative fact-finding process leading to the exoneration of the

suspect, or to (b) the entry of a plea of guilty (Packer 1996, 5).

The Crime Control Model (cont.)

Justice and the Law

An obstacle course designed to avoid efficiency and speedy processing

Numerous appeals are allowed Evidence may be suppressed Police must obtain warrants and not

interrogate suspects without counsel present More concerned with integrity of legal process

and legal guilt rather than factual guilt

The Due Process Model

Justice and the Law

Brewer v. Williams (1977)– Due process gone awry

Brown v. Mississippi (1936)– Crime control model run amok

Nix v. Williams (1984)– The “Golden Mean” between the two models

The Two Models in Action