Law and Justice Chapter 2 PowerPoint

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

2. 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?

3. 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

4. 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

5. 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.)

6. 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.)

7. 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

8. 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

9. 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

10. 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?

11. 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
Not a formal set of statutes or procedures
Considered a “law within a law”
Transcendental Natural Law

12. 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.)

13. 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

14. 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.)

15. 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

16. 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

17. 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?

18. 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

19. 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

20. 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

21. 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.)

22. 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.)

23. 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

24. 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.)

25. 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 have only the task of determining guilt or
innocence, not deciding on punishment.
Cesare Beccaria and Reform (cont.)

26. 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

27. 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

28. 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

29. 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

30. 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

31. 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