Law in Contemporary Society
Trials: For Legitimacy Both for the public and for criminals on trial

  • Certainly trials are imperfect
    • May be a ruse to allow judges or juries to arbitrarily decide what is right and wrong
    • May be manipulated by lawyers to get certain outcomes by picking the right jury, wearing the right suit, or striking the right tone
    • Laws may be blunt tools to get outcomes desired by social forces
    • It may be impossible to ever get TRUE facts, they observed through the subjective lenses of judges and juries and witnesses.
  • Even if the entire criminal trial system is a lie, the system still serves to instill confidence and legitimacy for criminals
    • The theater of the process is impt for criminals
      • Also helpful to encourage ppl to follow the law: follow it bc/ real wrongdoing is punishhed, not just a roll of the dice
  • Assume the criminal system is a set of choices by society as a whole
    • Punish undesirable actions
  • Can be b/c society should/is good, for punishing bad behavior
  • Or can be b/c we make economic choices, and need to weigh the scales in favor of actions that benefit society
  • Whatever the reason for the laws, they are choices made by and executed by some that take away freedom of others
    • Even when laws are on the books, decisions are make mostly by individuals in a non uniform way to enforce or not and how stringently
  • Different police, prosecutors, judges, and juries
    • The arbitrariness of the system requires us to build up the formality

  • No way to get around arbitrary nature of the law
    • Only two other options
  • Nothing is illegal: no
  • There are clear cut regulations. But facts are hard to determine, situations are each unique, and words are limited in what they can make clear
  • We need a criminal justice system, but we don't want to lay the problems bare to those on trial
    • Certainly there should be clarity: right should be told and council should be given, but clearly there are still flaws
  • But since fact finding and the law are not science, there should be a sense of formality to it
  • Personal liberty is at stake

Decision is b/w:

  • A fašade that appears to be just but is not
  • The truth, but still no justice. No formalities of trial, just a judge who decides

Some could argue that the legal system is about truth at its core, and if both options end in unjust outcomes, go for the truthful one

Other side: both will be unjust, but a system with stature, that appears to work hard to find the truth, will make the laws more efficacious.

  • Inherently flawed, but at least the goal of encouraging people to follow the law will be helped

  • Not good to ignore the problems, they need to be studied, but if we strip away the pretence and formality, we are left with a system that still is imperfect, but people don't believe in it, and decisions coming out of the system lack credibility

  • Unlikely that most convicted criminals would report that they have great confidence in the system: they were locked up.
    • Also, there is always reports of false convictions, even under through the scrutiny of capitol crimes
    • Looking at the prison system, it is clear to anyone that it is not representative of the general population.
    • Natural to resent a system that punishes you, especially of trials are all show

  • This doesn't argue that finding truth isn't still a worthy goal, but the justice system is really a series of human decisions, not scientific. Formalities may be a mask for all of this, but if the ability to discover truth doesn't change, this is better
    • Opportunity to share your story, your witnesses, your evidence, to appeal directly to your jury or judge
  • If it is not possible to get pure justice in the system, at least a sence of justice is good for those convicted, and for those who are dettered from actions, a sence that the system works,

Drug laws: ppl know they are treated differently depending on who they are, does that affect efficacy

The Illusion of Criminal Justice Is Good

-- By MaxDubin - 14 Feb 2008

Cohen and Frank argue that a perfect system of criminal law is impossible. Legal rules do not come from above in pure form and even basic facts are subject to interpretation.

  • This is not sufficiently accurate summary to be worth undertaking. Why not link to our discussion of Cohen and Frank? This is a Wiki, right?

The first time anyone begins even an informal study of the law, they find the law unsettlingly arbitrary.

  • Surely you can be expected to catch simple grammatical errors of agreement among pronouns?

Despite this, the law is taught as rational exercise. There are schools of thought that guide judges, plain meanings, and obvious intents. Getting past this, Cohen and Frank convincingly argue that all this is a fašade. But even if there is no way to determine true facts or have scientific judicial processes, the appearance of a just system is still good. The accused benefit from the theater of a trail because they get some justification for their loss of liberty.

  • This happens because you use a spell-checker instead of proofreading. But proofreading should become second nature, because lawyers are expected to produce documents without errors, else they put clients at risk. So not proofreading is literally unprofessional. Don't ever let this happen in anything you formally submit to anyone.

The rest of the citizenry benefits from the belief that the justice system is actually just, and the choices that they make matter.

  • How can it be preferable in the long term for an institution to rest on lies? The theory seems to be that the public will respond better to being tricked than leveled with. Have you decided that there is no distinction between law and politics? (Wouldn't that be precisely the outcome of legal realism?)

Illusion is the Best Option

The arbitrary nature of the law forces a decision to favor the appearance of a logical process. Under Frank and Cohen’s analysis, there is no way to design a flawless system. Words are limited in their clarity and in the end, people, with all the outside influences weighting on them, make decisions in case. Further, society is not prepared to give up on the law completely. Under the current system, the accused are subject to how judges and juries interpret the evidence and read the law. But, the trial process suggests that there is more predictability. The formalities of trials suggest that justice is doled out in scientific way. While not ideal, this is a good outcome. The only other option would be to have the same unpredictable rulings, but lay bare the arbitrariness of the process. No one is better served by the latter option. A justice system needs the respect of the citizens, and will lose that when stripped of its formality.

  • But not when stripped of its reality?

Interests of the Accused

Criminal laws are a decision by society to punish undesirable actions. One possible reason behind the system is that there are clearly good and bad actions, and that society has a duty to punish bad ones. If this is the case, the accused risk losing their liberties under a system that is arbitrary and unfair. For them, the theater of the trial is important. We are not about to stop sending people to jail. But, if you are going to lose your liberties, likely there is some appreciation for the formality of the trial and the appearance of a just process. Even if a trial is won or lost in the strategies of venue or jury selection, the accused can still present evidence and testify on his own behalf. The idea that justice is served is an important outcome of the process. It is unlikely that most convicted criminals would report that the system is fair, they have lost. There is always a stream of reports of false convictions, even under the labored scrutiny of capital crimes. Certainly truth is preferred over obscurity, and the accused should not be lied to for “their own good”, but if there is no way to ensure justice, the belief it can be achieved is better.

  • Certainly A but also not A?

The accused are better served if their loss of liberty is done with formality of trial, sometimes the process can make a difference in the outcome. Even if it does not make a difference, and justice is doled out unfairly, the accused are not better to know they were subject to injustice. While trials may not result in perfect justice, the appearance of true fact finding and clear rules is better than nothing

  • Did you leave the period off the preceding sentence as a way of accepting that the idea presented is unfinished or not credible?

Interests of Society

Society as a whole is also better served by this belief. If crimes are economic decisions by society to increase the consequences for undesirable actions, a belief that the criminal justice system works is crucial. In this view of crime, some people may make a decision that personally benefits them but the risk of conviction makes that choice more costly. If the criminal system is not dependent on true fact and doesn’t apply clear rules, the risk of conviction is not as closely tied to personal actions and won’t change decision making. For an efficacious system, people need to believe that trials work out true facts and apply clear laws.

  • This paragraph is obscure. If clarified, I'm not sure it would be believed.

Balance of Skepticism and Acceptance

This is not meant to suggest that the search for truth is not a worthy one. Judges, lawyers, and students cannot forget that the law is the sum of social forces, and that laws and facts are not clear in themselves. A true understanding is necessary to reform problems and use the law to get desirable social outcomes. But, the formality of the court, and the illusion that the law is clear should not be thrown away. The illusion makes the court and criminal laws more legitimate. While realistic, exposing the law for what it really is damages its social good. We want to believe that wrongs will be appropriately punished and that the trial system can work out the truth. Skepticism is still important, but the accused still deserve the sense that they have had a just trial and we need to believe that the courts can find real truth, if not, why should anyone concern themselves with criminal laws? It is not a perfect solution. We don’t want a system where elites know the truth about the system and tell the rest a Nobel Lie. But, some suspension of reality in the law is good. It lets us believe that, despite the failings in the criminal justice system, in the long run, justice is served.


  • How illusion makes anything more legitimate depends, I suppose, on the definition of "legitimacy." But if a lie can be legitimate, why do we care about "legitimacy" at all? Have we no more at stake in this concept than "Non e vero, e ben trovato?"

Navigation

Webs Webs

r5 - 12 Jan 2009 - 22:59:59 - IanSullivan
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
Syndicate this site RSSATOM