Justice or Law 2: What should you want from your leaders?

In yesterday’s post I took a look at how the average American (whatever that is) probably thinks about the rule of law in cases where the law is unjust. What do we want from our leaders: law or justice? Looking at some historical cases related to slavery in the US, I concluded that we generally use a gut check rather than reason to guide our moral conclusions. As fundamentally conservative people, we also seem to favor the rule of law when the case for justice is at all murky. Only in retrospect (sometimes long after the fact) are we’re willing to morally permit disobedience to the law in the service of justice … which isn’t much use for those unlucky enough to suffer injustice at the hands of the law today.

But ‘moral intuition’ doesn’t actually help us determine the content of morality. Today I want to ignore what the average American would want from our leaders and instead focus on what we really ought to demand when the rule of law and justice conflict.

A friend of mine, after reading the last post, asked me, “is there any rational ground to decide (in the moment and not in hindsight) between applying the law and doing justice? [hat tip to Chris]” His question really gets to the heart of the issue, putting us in the place of the judge struggling with these issues. And unfortunately for the poor judge, I’m convinced there is no rational test we can use in the moment to decide when to ditch law for justice. Or, put more properly, even if there were such a test, we should never get to the point where we would be tempted to use it.

There are at least 4 levels of irrationality, uncertainty, and fraud standing between the judge and any supposed rational test.

1. Finding/interpreting the facts

Even in the smallest case, finding the facts is a messy problem. Our system of law has found ways to mitigate errors of fact with evidentiary rules, but a responsible trial judge or appellate justice will still be keenly aware of the myriad reasons to doubt the evidentiary record:  information overload, information scarcity, perception bias, selection bias, self-serving bias, inherent ambiguity, short attention spans, imperfect memory, and any number of other horrors we learned about in Psych 101.

2. Finding/interpreting the demands of Law

For most issues, there is a perfectly applicable statute with clear definitions and a history of supporting precedent. But the important issues that work their way up through the courts are important precisely because the law is ambiguous (hat tip to Jeff). We like to think of the law as a thick jungle canopy, covering everything in its shadow. But the most important issues in law arise when that canopy turns out to have holes that need to be filled. How does the judge find law when there is none to be found? She interpolates existing law as best she can to fill the gap, reluctantly inventing only where necessary, always with the spirit of the law in mind. For those few cases where creativity is necessary, the process at the very least strives to be as true as possible to the standards of interpretation. And though such invention is sometimes necessary (see most cases that work their way to the Supreme Court), the judge at least has the good moral sense to blush at her own invention.

3. Determining the demands of Justice

Step 3 makes step 2 look like a cake walk. At least law exists as statutes and a body of precedent – all available in the same written form to everyone. ‘Justice’ exists as a series of moral precepts that differ from person to person, ideology to ideology, and era to era. Instead of one canopy with some holes, we are faced with a whole host of competing canopies, all vying for the title of A Theory of Justice. Our enterprising judge must first pick a particular theory of justice out of this mess before she can even begin to evaluate (and again possibly interpolate) the demands of justice in the given case.

4. Balancing the demands of Law and Justice in a proper way

If our poor judge somehow finds her way through the thorny issues of steps 1, 2, and 3, then she must finally derive a rational test for weighting the demands of law and the demands of justice, given the facts of the case.

There may or may not be such a rational test in an ideal world without the problems presented by steps 1 to 3. But in our world, the error, irrationality, and artistry introduced into the system by step 3 is too much to bear. As tricky as steps 1 and 2 are, our system is built to deal with them. Interpreting facts and law is tricky, but our system is built on clear standards for interpretation. Our system is built to be cautious with its interpretations, and it suffices. Our ultimate dedication to strict interpretation is evidenced by our agony over the occasionally-necessary fabrication.

The trouble with step 3 is that it doesn’t merely involve interpretation, but determination. The judge (or whomever would place themselves in the judge’s shoes) must first determine which tradition of moral theory to pick before beginning the process of interpretation (and even interpolation if that tradition doesn’t quite cover the case in question). This determination of justice seems to be qualitatively distinct from the process of interpretation. I don’t think we could find 5 people to agree on what rational standards should be used in choosing a tradition to interpret, while there is wide agreement on the standards of interpretation. Determination is the opposite of cautious and incremental; it is decisive and all-encompassing. Those who would have a judge determine justice don’t even have the good moral sense to blush at their actions. There is no sense of agony in their fabrication of a theory of justice.

And that lack of agony, that lack of blushing, makes me deeply suspicious about the whole endeavor. At the end of the day, I believe that the determination of justice is the sort of judgment best left to discourse in civil society (see Habermas), which in turn generates and revises law through existing democratic legislative institutions


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This is a group blog. JSC5 currently writes from the US. JSC7 writes from behind the Great Firewall of China.

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