Law and Justice Explained.

I just stumbled upon this, in comments to a long-ago Ann Althouse post:

One of the most annoying things about lawyers is the way they casually conflate “law” with “justice.” To clarify: justice is a concept in philosophy; also to some extent in psychology, sociology, economics, etc. Law is what a bunch of mostly long-dead politicians thought would get them reelected. There’s no connection between the two. None. The relation between law and those other fields is much like the relation between astrology and astronomy…except that astrologers don’t have guns.



0 responses to “Law and Justice Explained.”

  1. And there’s this story about Justice Holmes:

    After a lunch with Judge Learned Hand, as Holmes was departing in a carriage to return to work, Judge Hand said to him: “Do justice, sir. Do justice.”
    Holmes had the carriage stopped. “That is not my job,” he said. “My job is to apply the law.”

  2. […] Defending People points to this post from Ann Althouse: One of the most annoying things about lawyers is the way they casually conflate “law” with “justice.” To clarify: justice is a concept in philosophy; also to some extent in psychology, sociology, economics, etc. Law is what a bunch of mostly long-dead politicians thought would get them reelected. There’s no connection between the two. None. The relation between law and those other fields is much like the relation between astrology and astronomy…except that astrologers don’t have guns. […]

  3. I disagree respectfully but fervently, and just posted as to why here:

    1) Justice is a topic that exists in philosophy.
    2) The public, with whatever understanding of philosophy they have, combined with their upbringing and social mores, have formed concepts of justice for themselves.
    3) A voter’s support for a politician is proportional to their belief that the politician is like them, or will enact policies that see their beliefs fulfilled.
    4) The more a politician’s ostensible definition of justice falls in line with a voter’s the more likely that voter is to support that politician, other things being equal.
    5) Politicians act in ways they believe will get them elected.
    6) Politicians mimic what they believe is the public conception of justice when they enact laws because they believe it will get them re-elected.
    7) Laws come to resemble the public conception of what justice is.

  4. Ideally, law is the tool used to systematize and organize a just society.

    When law is turned to creating injustice (as it so often is) it becomes a perversion of its own principle.

  5. I prefer the definitional framework conceived by Lysander Spooner in the first chapter of his treatise The Unconstitutionality of Slavery, titled “What is Law?” Here’s a paragraph that gives some of the flavor:

    Natural law, then, is the paramount law. And, being the paramount law, it is necessarily the only law: for, being applicable to every possible case that can arise touching the rights of men, any other principle or rule, that should arbitrarily be applied to those rights, would necessarily conflict with it. And, as a merely arbitrary, partial and temporary rule must, of necessity, be of less obligation than a natural, permanent, equal and universal one, the arbitrary one becomes, in reality, of no obligation at all, when the two come in collision. Consequently there is, and can be, correctly speaking, no law but natural law. There is no other principle or rule, applicable to the rights of men, that is obligatory in comparison with this, in any case whatever. And this natural law is no other than that rule of natural justice, which results either directly from men’s natural rights, or from such acquisitions as they have a natural right to make, or from such contracts as they have a natural right to enter into.

    • I am a big fan of Spooner. I even own (and have read) the Collected Works of Lysander Spooner.

      That said, how does natural law tell us which side of the road to drive on? Shouldn’t it, however, be kept uniform? How does NatLaw tell us what penalties to attach to crimes? Why is it that it is illegal to have any sexual contact with a person who is 203 months and 27 days old, yet just fine to have all-out porn star sex with any number of them as soon as they complete their 204th month of life?

      The difficult part of NatLaw, which is why it has fallen into disfavor and ridicule, is that it falls down in application. At some point, the arbitrary choices have to be made — imperfectly, of course, as they are arbitrary. Yet, somewhere, a definition has to be made, and hopefully as close to natural law as possible — even if, in application, sometimes that is not possible at all.

      Randy Barnett has examined alot of these issues, in his book Restoring the Lost Constitution. If you are really interested in frustration, I highly recommend it. It is excellent, yet the realities it confronts are somewhat dismal.

      • Clay,

        I thought your name sounded familiar, and then I realized you are the author of a book on my office bookshelf on jury nullification / independence. In fact, the reason I bought the book was because it was highly recommended as the best on the subject by Randy Barnett in a blog post at Volokh Conspiracy. No wonder you are a big fan of Spooner, as he wrote the classic book on the subject, Trial By Jury. The name of my blog, People v. State, was inspired in part by the paragraph on pages 280-281 of your book, where you discuss opening statement. For the benefit of others, here’s what you wrote there:

        “Prosecuting attorneys almost always try to connect with the jury by claiming to represent ‘the people of’ the United States, or the state. One rarely used technique is for counsel to object, in front of the jury, to the prosecutor claiming to represent ‘the people.’ Objecting that the prosecutor represents the government, and that the jury represents ‘the people’ achieves several objectives — it shows the jurors that the prosecution is posturing and attempting to manipulate them, and it shows them that they have an independent role to play which the prosecution is attempting to usurp. The judge will almost never grant this objection in any case, and may well chastise the attorney bold enough to make it, but in front of an appropriate jury that posture may well cost the judge credibility as well. This technique can be reinforced by being sure to refer to the prosecutor either as the ‘prosecutor’ or as the ‘government’ throughout the trial, and never as the ‘state’ or ‘the people.’”

        Small world. Honored to “meet” you.

        I’ve read Barnett’s book Restoring the Lost Constitution, and although the prospect for the restoration he outlines is indeed dismal given present political realities and public opinion, I found the book itself very persuasive and on the money. It makes room for the arbitrary but apparently necessary lines and definitions you refer to. If such arbitrary lines are indeed necessary, they can nevertheless be justified only by natural law and natural justice and nothing else. What is truly necessary is presumably just. Even if the State’s claims to legitimacy (e.g., on the theory of “consent of the governed”) are completely unfounded, we are not really harmed when we are prevented by the government from doing something we have no natural right to do anyway.

        Speaking of small worlds, I have recently come across another professor at Georgetown (where Barnett is also a professor) whose thinking has illuminated and supplemented my Spoonerite worldview: John Hasnas. I especially found his article titled “The Depoliticization of Law” helpful to the questions presented.

  6. There is no general definition of a criminal offense instead a legislative body gives specific definitions of criminal behavior statute by statute. The objective of the criminal justice system is a fair and just outcome to a process started by a criminal act defined by statute.

    Speaking as a retired astronomer I am unable to fathom how justice and laws can be compared to astronomy and astrology.

    • Good point about how our “criminal” “justice” system works in the real world, without any underlying theory of justice or crime.

      That is not to say, however, that in fact “[t]here is no general definition of a criminal offense.” Thomas Jefferson advanced towards such a definition, writing: “Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law’, because law is often but the tyrant’s will, and always so when it violates the rights of the individual.”

      See also Lysander Spooner’s Vices Are Not Crimes.

      • Speaking as an astronomer we live in what appears to be a real world. I don’t think Jefferson advanced very far towards a general definition of criminal behavior.

        • Yes, of course we live in a real world. I agreed with you that in fact legislatures are not guided by any principled definition of what constitutes criminal behavior. They make up crimes on an ad hoc basis. That doesn’t mean, however, that such a principled definition doesn’t exist, and that legislatures couldn’t and shouldn’t be guided by such principles.

          Here’s the first part of Spooner’s “Vices Are Not Crimes,” which accord with what I quoted from Jefferson:

          Vices are those acts by which a man harms himself or his property.

          Crimes are those acts by which one man harms the person or property of another.

          Vices are simply the errors which a man makes in his search after his own happiness. Unlike crimes, they imply no malice toward others, and no interference with their persons or property.

          In vices, the very essence of crime — that is, the design to injure the person or property of another — is wanting.

    • John, the system, not being sentient, cannot have intent. Its human components can, and I’ll stipulate that most of the human components of the criminal justice system want (what they see as) a fair and just outcome. But there’s many a slip twixt cup and lip, and there’s nothing about the system that makes justice its inevitable product, or even its likely product. You might be interested in my post from yesterday on the subject.

      • I would describe the “system” as a confederation of intergovernmental agencies with a common set of clients. In spite of the fact that each agency has a fiercely independent administration and an independent funding source there is a remarkable degree of interagency cooperation at the operational level even though there is no system wide oversight and planning.

        I did say that a fair and just outcome was a goal. I have no idea how often that goal is achieved. As far I know there is nothing equivalent to a batting average for the “system”. The plea bargaining process makes it nearly impossible for the general public to determine if the outcome is fair and just (assuming they are capable of making such a determination). The appeals process appears to be the only peer review and it has a very restricted scope.

        I think a fair and just outcome would be more likely if the peer review was at the front end of the process rather than at the end.

        • And other than personal whim, how would one decide – and could we ever possibly agree – on what “fair and just” outcomes are. Forget the difficulty in measuring any actual outcome against the “fair and just” goal, I don’t see how we get to agreement on the goal.

          Edmund Spenser, the 16th Centruy English poet, in his epic The Faerie Queene, gave us the character of Sir Artegall, the knight of Justice. But Artegal’s justice was too harsh. As a character, he’s incomplete and must be balanced by the gracious Mercilla (mercy, of course).

          Spenser’s didactic point is that justice must be tempered by mercy. Pure, it is as dangerous as law untethered to them – or process by itself. (Consider Scalia’s view that the Constitution is not offended by the imprisonment – or even the execution – of an innocent person as long as the person has received due process.

  7. Bill Cosby once said “Parents are not interested in justice. What they want is quite.”
    I suppose one could also say the public is not all that interested in a fair and just outcome what they want is order.

    My recollection of history was that the outcome just or otherwise was arrived at by a collective decision by the offenders relatives and neighbors. After awhile there would be a substantial set of precedents so the outcome could be predicted with a variable level of confidence. The problem with that approach was the relatives had too much influence in deciding the outcome. Keep in mind that in those days repeat offenders were stoned to death by their neighbors or sold as slaves.

    A simple test of the outcome would be to see if order was restored and tempers cooled.

  8. […] on criminal defence lawyering, and it’s not even that abusive, from Defending People – "Law and Justice Explained "… "One of the most annoying things about lawyers is the way they casually conflate […]

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