Law, Justice, and Society:
A Sociolegal Introduction
Chapter 2
Justice and the Law
Justice and the Law
What is Justice?
Where does it come from?
What is its relationship to the law?
Justice and the Law
What is Justice?
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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.”
Justice and the Law
Distributive Justice
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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
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
Justice and the Law
Retributive Justice (cont.)
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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
Justice and the Law
Retributive Justice (cont.)
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What is relevant?
– Example: Amount of harm done by criminal
– Race, religion, sexual orientation
– Differences of conduct, not of ascribed statuses
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Equality of pain versus equality of instrument
– Example: day-fine system
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Sentencing disparity
– sentencing guidelines seek to ensure just
punishments by taking into account relevant
differences
Justice and the Law
Sentencing Guidelines
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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
Justice and the Law
Sentencing Guidelines (cont.)
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Characteristics of the crime taken into
account (cont.):
– the amount of monetary loss
– aggravating and mitigating circumstances
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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.)
Justice and the Law
Problems with Aristotle’s Definition
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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
Justice and the Law
Legal Realism
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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
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
Justice and the Law
Transcendental Natural Law
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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”
Justice and the Law
Transcendental Natural Law (cont.)
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Has been used to bolster government
– divine right of kings
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Has been used to refute government
authority
– Declaration of Independence
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Transcendental Natural Law is not always
religious; secular humanists assert that
humans have an innate sense of fairness and
justice
Justice and the Law
Evolutionary Perspective
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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).
Justice and the Law
Evolutionary Perspective (cont.)
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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
Justice and the Law
Naturalistic Fallacy
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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
Justice and the Law
Evolutionary Perspective in Action
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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
Justice and the Law
Source of Justice
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Morality evolved as a challenge to exploitive
behaviors
Moral outrage is the basis for revenge
– revenge makes real credible threats against
amoral behavior
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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
Justice and the Law
What Is the Relationship of Justice to Law?
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Law and justice are not identical
– legal realism: describing what the law is rather
than evaluating its moral content
– Code Louis of 1670
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The goal of positive law should be to bring
itself in conformity with what is just
Justice and the Law
Equity and the English Courts
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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
Justice and the Law
Equity and the American Courts
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Nineteenth-century courts were focused on
the letter of the law
– caveat emptor
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Twentieth-century courts became more
concerned with equity in justice
– holding companies liable for their product
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Example of equity in courts: Riggs v. Palmer
(1889)
– Interpretation of law by principles
Justice and the Law
Progression of Due Process
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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
Justice and the Law
Progression of Due Process (cont.)
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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?
Justice and the Law
Progression of Due Process (cont.)
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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
Justice and the Law
Due Process Rights
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Cesare Beccaria and Reform
– On Crimes and Punishment
– plea to humanize and rationalize the law and to
make punishments more reasonable
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Laws should be designed to preserve public
safety and order, not to avenge crime
Justice and the Law
Cesare Beccaria and Reform (cont.)
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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
Justice and the Law
Cesare Beccaria and Reform (cont.)
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Abolition of the death penalty
Promoted mild and merciful punishment
– should only exceed the level of damage done to
society
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Punishments for specific crimes should be
written
Judges should only have the task of
determining guilt or innocence, not deciding
on punishment
Justice and the Law
Rights Denied in the Lettres de Cachet
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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
Justice and the Law
Origins of the Bill of Rights
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Magna Carta (1215)
Statute of Winchester (1275)
Petition of Rights (1628)
Bill of Rights (1689)
Justice and the Law
Packer’s Models of Criminal Justice
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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
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Due Process Model
– embodies traditional liberal values
Justice and the Law
The Crime Control Model
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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
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Appeals must be kept to a minimum
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).
Justice and the Law
The Due Process Model
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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
Justice and the Law
The Two Models in Action
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Brewer v. Williams (1977)
– Due process gone awry
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Brown v. Mississippi (1936)
– Crime control model run amok
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Nix v. Williams (1984)
– The “Golden Mean” between the two models