Law in Contemporary Society

Misplaced Values in our Institutions

-- By KregKatoski - 19 Apr 2009

Although the legal realism embodied in Holmes' idea that “things are what they do” has had a great impact on the way we think about the law, there still remain many discrepancies between what we do and what we aim to accomplish. It appears that our institutions are often subconsciously governed by the notion that things are not what they do, but rather what they signify. We perceive the spectrum of values imposed on us through our institutions as the culmination of hundreds of years of rational thought and experience as to what is and is not just, when, in reality, the emergence of such a system of values is far less organized and systematic than we would like to believe. As Arnold suggests, the elements of consciousness and choice that we attribute to our organizations tend to be misplaced, leading us to assign greater significance to their social output than may be warranted.

Criminal Punishment

  • This transition doesn't work. You needed to tell us at the start of the essay what you intend to write about, so that we know why we are suddenly reading about criminal punishment. Not a word has prepared us here for that change of topic.

We would find it inhumane for a criminal to be beaten or whipped as punishment for a crime, as these forms of punishment are only practiced by uncivilized nations. We would scarcely flinch, however, in sentencing a criminal to 25 years in prison. Though few of us have direct experience with either form of punishment, the vast majority of the population would undoubtedly prefer to be subjected to the former rather than the latter. Why, then, is the preferable punishment considered less humane? What purpose do our values serve if they stand in opposition to desires of those it would seem they are intended to protect?

  • I don't know why the comparison you are making is helpful, because I don't know what you're trying to show me because you haven't told me. But as a reader starting from scratch with you, I don't find the comparison even balanced, let alone effective. I don't expect any society that uses corporal punishment to apply a mere beating where we would apply a life-truncating prison sentence. For offenses meriting decades of confinement, the corporal analog would surely be mutilation. Asking why we do not blind or dismember people who have committed serious crimes doesn't seem to me either mysterious or paradoxical.

Perhaps one reason the punishment of being beaten or whipped is viewed as less humane than imprisonment is that it would generally effect little societal change.

  • I think you mean "would have little deterrent or incapacitating effect." I don't see any reason to think this bears on our sense of humane treatment. Mutilation is both deterrent and incapacitating, and therefore on your account should be thought more humane. Of course it isn't. Which tends to show that your argument is careless and wrong.

It is unlikely that a beating would make an individual less likely to commit a crime in the future, while it is often argued that imprisonment will. While in prison, an individual cannot commit crimes against society, and we are led to believe that once released, such an individual will likely be rehabilitated. But rehabilitation on a broad scale seems to be somewhat of a myth, and those who have been incarcerated for half of their lives, upon release, might even prove to be a greater danger to society than when originally convicted. This would severely undermine the argument that incarceration is more humane than beating because the punishment of incarceration benefits society.

  • An argument that made no sense and should have been rejected for reasons given above is now twisted round again, to be used to show why imprisonment wouldn't be humane if it achieved few social purposes in relation to the pain it imposes. This point might indeed be useful, particularly if you made a familiar move and pointed out that the victims of the pain imposed by imprisonment are mostly innocent family members. But you don't even offer the predictable but sound arguments.

The Choice of Attorney

  • Another abrupt unintroduced transition.

We value the ability of an individual to choose an attorney in a criminal or civil trial. Some might even strongly believe that a denial of this choice would be a violation of one's rights.

  • Someone strongly believing this might point to text in the Bill of Rights that says so in simple words. What would someone not believing this point to?

But it appears that this practice might actually undermine the justice that we undoubtedly value in our legal system.

  • Depending on your definition of "undermining" and "justice," I suppose, but only if you admit definitions that do not accord with constitutional doctrine, in which case this is a word game.

We believe it to be an important principle of the law that the outcome of a case for a particular party should depend not on the quality of that party's legal representation but on the merits of the case itself.

  • We do? You have a citation to offer for a statement of this important principle of the law? Even one? I think "we" have always believed that the skill of trial counsel in particular, but also the skill of conveyancers and will drafters, to take just some obvious examples, made all the difference. Not only have lawyers wanted to support that belief, for obvious reasons, but our popular culture and oracles of public opinion constantly reiterate it. Legal doctrine, so far as I can see, is built around the assumption that better quality counsel working with more resources will tend to be more convincing to both judges and juries, and more effective in other forms of exercising social influence, than less smart, less well-trained, less disciplined lawyers working without resources. That's good, because if that weren't the law's assumption, the law would be indeed "an ass, a idiot."

Those who choose attorneys, however, usually do so in order to gain an advantage in court proceedings by buying better lawyering. O.J. Simpson would not have paid top dollar to assemble the "Dream Team" if those lawyers did not stand a better chance of getting him acquitted. This significantly tilts the scales of justice in favor of the rich and powerful, who are able to select the most skilled lawyers. If we are to accept the fact that the law favors those who are able to afford better lawyers in this way, we must accept the notion that justice is not blind and that justice will not be done in many cases.

  • Is there an honest person of intelligence and discretion above the age of six who hasn't accepted those facts?


By acknowledging the inconsistencies between what we value and what we actually do, we can begin to think critically about what values our institutions are actually supporting. This will then allow us to reform our institutions, structuring them so as to better comport with our notions of justice.

  • This is a conclusion? It seems more like a pair of truisms. What's the significant, tenable other side of either? By what process of starting from premises, adducing evidence and answering objections did you reach them? This draft has neither clearly stated thesis nor development to conclusion. Material from the first draft was reframed, with the apparent intent of coming around objections I raised, but the basic problem you had last time, which was the absence of a clear thesis for the essay to develop, remains the central problem of this draft too. Outlining, and editing the outline carefully, is valuable for developing a thesis once identified, but the central statement, the theme of the essay as it would be the theme of a sonata movement, must come first. The one you want can be stated in a single graceful sentence.

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r5 - 08 Jan 2010 - 22:10:27 - IanSullivan
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