Law and Justice Chapter 2 power point

Justice and the LawCHAPTER 2

What Is Justice? Dictionary definition

Aristotle◦ “Justice consist 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.”

Distributive Justice How a political entity distributes resources to its members

Rightful, merited, and deserved distribution

Not about need

Just distribution depends on individual’s contributions and value to community

Retributive Justice Concerned with

◦ How a society determines guilt/innocence◦ How it determines the proper punishment

Substantive law◦ Places limits on individual’s actions

Procedural law◦ Places limits on agents of state as they enforce substantive law

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

To be just, society must punish with fairness and impartiality

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

Retributive Justice What is relevant?

Equality of pain versus equality of instrument◦ Day-fine system

One issue is sentencing disparity

Sentencing guidelines◦ Seek to ensure just punishments◦ Take into account relevant differences

Sentencing Guidelines Operationalize Aristotle’s definition

Assigns numbers to various aspects:◦ Characteristics of crime taken into account

◦ Statutory gravity◦ Amount of monetary loss◦ Mitigation?

◦ Characteristics of criminal taken into account◦ Prior criminal record◦ Family breadwinner?

Problems with Aristotle’s Definition of Justice

What are relevant differences?◦ Conduct versus socially ascribed statuses

Process may be identical◦ Result cannot be identical under current economic system

Justice seen as another commodity for sale

Best justice that money can buy

Legal Realism Not theory or philosophy of law

◦ Study of decision-making

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

Law is indeterminate◦ Legal rules influence, not determine

Non-legal reasons often explain judicial decisions

Legal Realism Bush v. Gore (2000)

Muller v. Oregon (1908)

Lockner v. New York (1905)

Belies claim that United States is “country of law, not men”◦ Nomination hearings of Sonya Sotomayor

Where Does Justice Come From?Two Perspectives of Law and Justice as Natural

People everywhere want to apply rules to conduct◦ Want to apply rules that are just

There is natural basis for law based on inner voice yearning for justice◦ Differ on source of that inner voice

First words of Declaration of Independence◦ Reference both perspectives

The Transcendental Natural Law Perspective

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

“Ought” of law runs downward from some transcendental realm◦ Through education and jurisprudence


Agrees with Plato’s concept of forms

Not formal set of statutes or procedures

Considered “law within a law”

International legal community term◦ Jus cogens

Has been used to bolster government◦ Divine right of kings


Been used to refute government◦ Declaration of Independence

Not always religious◦ Secular humanists

The Evolutionary Perspective

Scientific equivalent of transcendental perspective

Attempts to explain origins with reference to principles of evolutionary biology

Law considered natural◦ Flows from evolved nature of homo sapiens

Seek empirical support for views through study of behavior

The Evolutionary Perspective

Believe humans biologically predisposed to make certain choices◦ Begins with choice

Choices important to well-being hardened by positivist law

Most important choices eventually generate belief they originated in some transcendental realm

Concerned with what is rather than what ought to be

Naturalistic Fallacy Assuming what is is the same as what ought to be

◦ What is◦ Scientific observation

◦ What ought to be◦ Moral hope

Evolutionary theorists do not synonymize something that is natural for something that is “good” or “desirable

Source of Justice Morality evolved as challenge to exploitive behaviors

Moral outrage is basis for revenge◦ Revenge makes real credible threats against amoral behavior

Moral outrage buttressed by retaliatory action is plausible candidate as basis for sense of justice

Laws learned but are motivated by innate need for justice

What Is the Relationship of Law and Justice?

Law and justice are not identical

Can be in accordance with one another◦ Or farthest thing from it

Goal of positive law should bring itself into conformity with what is just

Equity and the English Courts

Equity defined

Commonly law of England originally rigid and overly technical

Equity Courts created to temper common law courts with flexibility

Common law courts became more flexible and realistic and equity courts became more knowledgeable in law

Any distinction eliminated in 1875

Equity and the U.S. Courts

Nineteenth-century courts focused on letter of law◦ Caveat emptor

Twentieth-century courts became more concerned with equity in justice◦ Holding companies liable for products

Riggs v. Palmer (1889)

Garofalo and Natural Crime

Disagreed with positivistic definition of crime

Sought to describe law that are universal

Natural crimes would◦ Offend natural sentiments of probity◦ Offend natural sentiments of pity

Differentiated between◦ Mala in se crimes◦ Mala prohibita crimes

The Rule of Law Idea seems to have originated with Plato

Reichel (2005)◦ “Laws change but the Law must remain.”

Three irreducible elements:1. Nation must recognize supremacy of certain fundamental values and

principles2. Values and principles must be committed in writing3. System of procedures holding government to values and principles

must be in place

Due Process Procedural retributive justice due all persons whenever they are threatened by state with loss of life, liberty, or property

Set of instructions informing agents of state how to proceed when dealing with those suspected of committing crimes

Not something a person earns

Justice Evolving: Cesare Beccaria and Reform

Plea to humanize and rationalize law◦ Make punishments more reasonable

Did not question need for punishment

Laws should be designed to preserve public safety and order, not to avenge crime

Took issue with lettres de cachet

Argued for many rights we have today


Accused should be able to confront accusers

Accused should know charges against them

Accused should have public trial before impartial judge as soon as possible

If guilty, punishment should fit crime

Should be applied without reference to social status◦ Offender or victim


Abolition of death penalty

Promoted mild and merciful punishment◦ Should only exceed level of damage done to society

Punishments for specific crimes should be written

Judges should only have task of determining guilt or innocence◦ Not deciding punishment

Rights Denied in Lettres de Cachet

To be secure in one’s home

To confront one’s accuser

To know charges against oneself

To secure counsel

To be tried by jury of one’s peers

To be free of excessive bail

To be free from cruel and unusual punishment

Origins of Bill of Rights Magna Carta (1215)

Statute of Winchester (1275)

Petition of Right (1628)

Bill of Rights (1689)

Sir Edmund Coke (1562-1634)

Major figure in evolution of common law

Was imprisoned by James I◦ Told King he was not above the law and Parliament was not subservient to

him

Was elected to Parliament after his release

Ended up drafting Petition of Right

Often called Father of Due Process◦ First person to suggest written procedures for implementing substantive

criminal law

Herbert Packer’s (1964) Models Of Criminal Justice

Ideal models that explain how justice and law interface

Reflect different value choices that undergird operation of criminal justice system

Crime control model◦ Embodies traditional conservative values

Due process model◦ Embodies traditional liberal values

The Crime Control Model

Emphasizes community protection from criminals

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

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

Cases handled informally and uniformly◦ Assembly-line fashion

Appeals must be kept to minimum

The Due Process Model Obstacle course designed to avoid efficiency and speedy processing

Numerous appeals 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

Illustration of the Models in Action

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

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

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