Law, Justice, and Society: A Sociolegal Introduction

1. Law, Justice, and Society:A Sociolegal Introduction Chapter 2 Justice and the Law

2. Justice and the Law What is Justice? Where does it come from? What is its relationship to the law?

3. Justice and the Law What is Justice? • 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.”

4. 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

5. Justice and the Law Retributive Justice 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

6. Justice and the Law Retributive Justice (cont.) • 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

7. Justice and the Law Retributive Justice (cont.) • 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

8. Justice and the Law Sentencing Guidelines • 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

9. Justice and the Law Sentencing Guidelines (cont.) • 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.)

10. Justice and the Law Problems with Aristotle’s Definition • 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

11. Justice and the Law Legal Realism • 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

12. Justice and the Law Where Does Justice Come From? 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

13. Justice and the Law Transcendental Natural 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”

14. Justice and the Law Transcendental Natural Law (cont.) • 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

15. Justice and the Law Evolutionary Perspective • 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).

16. Justice and the Law Evolutionary Perspective (cont.) • 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

17. Justice and the Law Naturalistic Fallacy • 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

18. Justice and the Law Evolutionary Perspective in Action • 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

19. Justice and the Law Source of Justice • 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

20. Justice and the Law What Is the Relationship of Justice to 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

21. Justice and the Law Equity and the English Courts • 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

22. Justice and the Law Equity and the American Courts • 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

23. Justice and the Law Progression of Due Process • 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

24. Justice and the Law Progression of Due Process (cont.) • 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?

25. Justice and the Law Progression of Due Process (cont.) • 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

26. Justice and the Law Due Process Rights • 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

27. Justice and the Law Cesare Beccaria and Reform (cont.) • 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

28. Justice and the Law Cesare Beccaria and Reform (cont.) • 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

29. Justice and the Law Rights Denied in the Lettres de Cachet • 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

30. Justice and the Law Origins of the Bill of Rights • Magna Carta (1215) • Statute of Winchester (1275) • Petition of Rights (1628) • Bill of Rights (1689)

31. Justice and the Law Packer’s Models of Criminal Justice • 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

32. Justice and the Law The Crime Control Model • 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

33. Justice and the Law The Crime Control Model (cont.) 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).

34. Justice and the Law The Due Process Model • 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

35. Justice and the Law The Two Models in Action • 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