Law, Justice, and Society:A Sociolegal Introduction

Chapter 2

Justice and 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– How it determines the proper punishment

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?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 crime• Amount of monetary loss• Mitigation?

– Characteristics of the criminal taken into account• Prior criminal record• Family breadwinner?

Sentencing Guidelines

Justice and the Law

Study of legal decision making

How law is actually applied and implications of that application– Evaluate law as practiced

Law is indeterminate– Legal rules influence, not determine

Nonlegal reasons often explain judicial decisions.

Legal Realism

Justice and the Law

What are relevant differences? (conduct vs. socially ascribed statuses)

Process may be identical, but result cannot be identical under current socioeconomic system.– Justice is another commodity for sale.– Best justice that money can buy

Problems with Aristotle’s Definition

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 formsNot a formal set of statutes or proceduresConsidered 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

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.

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– What is:

• Scientific observation

– What ought to be:• Moral hope

Naturalistic Fallacy

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.

Law can be in accordance with justice or the farthest thing from it.

The goal of positive law should be to bring itself into 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 the 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– Riggs v. Palmer (1889)

Equity and U.S. Courts

Justice and the Law

Garofalo and natural crime– Disagreed with “crime is what the law says it is”– Sought to describe laws that are universal– Natural crimes would

• Offend natural sentiments of probity• Offend natural sentiments of pity

– Differentiated between mala in se and mala prohibita crimes

Progression of Due Process

Justice and the Law

Rechtsstaat: The Rule of Law– Seems to have originated with Plato– Been called the most important principle in the

world– Three irreducible elements: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 holds 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 accused is 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 penaltyPromoted mild and merciful punishment

– Should only exceed the level of damage done to society

Punishments for specific crimes should be written.

Judges should have only 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 Right (1628)

Bill of Rights (1689)

Origins of the Bill of Rights

Justice and the Law

Ideal models that 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 have real meaning only 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

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 than with 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