Law in Contemporary Society

Doing Justice

-- By XavierSanchez - 16 Feb 2012

Doing Justice

Justice is something we do. The idea of absolute justice being within human capacity is a claim that seems silly. Institutions are replete with human error, and it seems unrealistic that the justice system would be different. When a jury sentences someone to five years for an armed robbery or to death for a murder, it does so, in principle, because a prosecutor has succeeded in removing all reasonable doubt.

Twelve people –or often fewer- who did not witness the alleged crime are asked to weigh the evidence presented and to pass judgment on someone. Twelve men and women who generally know very little about the law are given instructions by a judge who supposedly knows quite a lot about the law. I have been told that the jury system works because a judge is no better at deciding on the credibility of a witness’s testimony or the persuasiveness of the other evidence than these random people brought together to do justice. The jury is entrusted with finding the facts and applying the law the judge explains to them. They deliberate and then reach a verdict. Magically, as Jerome Frank would argue, the uncertain case is resolved with illusionary certainty. The conclusion is that a crime has been punished, and justice was done.

We Don’t Do Justice Here

The attitude that surprised me the most during my first semester was the dismissal of the idea that as law students we were to be concerned about fairness and justice. I concluded that justice was a field for the philosophers. Lawyers must be concerned with the law. Perhaps the professors were trying to get us to view the law as Holmes thought it should be. Holmes wanted law students to look at the law as the bad man would. The bad man does not care that the law is just, but he is interested in what the law means to his material circumstances. So when my professors told me, maybe only half-seriously, that we don’t do justice here at law school, they were referring to the idea that the student should view the law as the bad man. Justice is a vague ideal; the law has material consequences. Law is concerned with how individuals act towards each other, and attempts to maintain social order by punishing violations and protecting rights. Following, a function of law school then is to teach the student how to serve clients by advising them on what actions will reduce negative material consequences. Here, justice is done when lawyers serve the client well.

In addition to lawfulness, justice can be characterized by fairness principles. To do justice in this sense would be to treat everybody as they deserve to be treated. A society that aspires to treat everyone with legal equality would maintain a process by which those of unequal social and economic standing would be treated in a way that their actions merit. Justice would be done when even those of little means have a real chance to be judged only on the merits of their case.

How Can I Do Justice?

Assuming that it is the lawyer’s role to do justice, how would I do justice? How can I make the phrase “equal justice under the law” truer? The courts in theory are supposed to be blind to everything besides the facts and the law. Legal rules are supposed to be applied uniformly to similar facts. If the reality is that judicial opinions are rationalizations for decisions arrived at by unarticulated means, does one do justice not by engaging in the regime of rationalization but working sometimes outside it. Robinson might think so. After all, keeping your client away from court serves her best. This is especially so if your client is poor.

If the legal system treats the poor justly and the rich kindly, it would seem that the path towards justice invariably must deal with this phenomenon. This is where creative lawyers are needed. Government funding for legal services to the poor rises and falls with partisan realignments of power. Restrictions on the services that the Legal Services Corporation (LSC) can provide continue. Work on lifting these restrictions can contribute to the mission of making “equal justice” a more real concept, but there must be something more.

This summer I am working at an organization, United Farm Workers (UFW), that besides filing lawsuits for unfair labor practices also works to organize workers and for the most part very poor people in exercising not just their labor rights, but also their broader civil rights. Far too often, a client comes to us after the statute of limitations have run or her case falls just outside the elements of cause of action. My supervisor’s mantra is to always look at the politics. If there is no legal cause of action, public relations pressure is always an option.

Because the UFW legal department does not receive federal funds and thus is not subject to the accompanying limitations, it can serve more people and engage in a wider range of activity than the regional affiliate of the LSC. Particularly, the UFW provides services to the large undocumented immigrant community in central California. It can engage in overt political action and attempt to involve their clients in demanding policy changes at both the state and federal level. These extrajudicial processes promote activism as a role for lawyers. This is a model of practice that I have found especially appealing.

From Here

I have learned some of the basic law talk terms. I have learned how to read books containing the examples of the law talk experts’ work. I hope to figure out how to do justice, or, at least, I want to learn to ask the right questions that get me started on that pursuit. I suspect that it will raise questions that I will confront throughout my career.


Webs Webs

r4 - 22 Jan 2013 - 20:10:56 - IanSullivan
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