Where’s the Justice in that? December 20, 2006
Posted by Barrett in : Law, Ethics, Justice , trackbackLaw and justice go hand in hand — one would think. In the one semester of law school that I sat through the word ‘justice’ was uttered numerous times. Nonetheless, in most instances utterance was not accompanied by substance. Neither professor nor student made a single attempt to articulate the fact that substantive concepts of justice differ significantly in content and expression. I argue that a fundamental undertanding of this fact is essential for the study (and practice!) of law.
I am taking my ques from Alasdair MacIntyre’s After Virtue and Whose Justice? Which Rationality?. According to MacIntyre, public discussions of justice are incoherent because that one word or concept has a multiplicity of meanings. These meanings are mediated by one’s specific tradition and narrative. In the end, discussions of justice break down when outside of a particular tradition. In short, the word ‘justice’ has too many meanings to truly make sense when spoken in public. Because of its size and multiculturalism, talk of justice in law school suffers from the same difficulties as talk of justice in public.
This problem became most apparent during class discussions. One student would find a court decision perfectly just, while another student would comment that her sense of justice was completely offended by the court’s holding. Further discussion over the court decision would then stagnate; the students would simply agreed to disagree. Students and professors re-enacted this scenario every day of the semester.
Another typical manifestation of the problem is the law student who takes inconsistent positions throughout a course: one day the student argues that someone guilty of negligent vehicular homicide deserves life in prison; the next day the same student argues that a serial rapist should be let off easy.
These kinds of break downs and inconsistencies could be avoided if students were alerted to the fact that we all employ various concepts of justice in everyday thinking and in class. I imagine that some hold more tightly to one view of justice, while others employ varying views depending on the situation they encounter. Nonetheless, we would all benefit if we were able to articulate the various theories of justice with which we are operating. Being able to perceive and name theories of justice will help us to avoid the break downs and inconsistencies briefly mentioned above. Plus, a better understanding of justice will inevitably make law students into better practitioners of law.
This missing understanding of justice is not just present in law schools, it is endemic in American law. For one very simple example, look to the Federal Rules of Civil Procedure (the set of rules that govern the processes of civil lawsuits). Rule 8(f) has to do with the construction of pleadings; it states, “All pleadings shall be so construed as to do substantial justice.” What does “substantial justice” mean in this context? How one interprets this phrase will vary tremendously depending on the theory of justice employed. For example, one who sees little difference between substantive and procedural justice will interpret this phrase differently from one who understands substantive justice as aid and advocacy for the orphan and widow.
Before going too far, I must admit that discussion of theories of punishment is common is criminal law classes. Some may argue that this replaces the need to discuss theories of justice, for these two are aligned in many respects. Theories of punishment include retributive theories, utilitarian theories (deterrence, incapacitation, rehabilitation), and even restorative theories (rarely). While these theories of punishment point to underlying theories of justice, one cannot equate punishment with justice. To assume the necessity of some form of punishment is to already assume a particular view of justice. The two are often interdependent, but they are distinct. Discussion of punishment in law school should not preclude discussion of justice.
The solution to the overarching problem mentioned herein is simply to discuss theories of justice. Law professors must point out to students that theories of justice differ greatly and we all have latent ideas about justice that we articulate without even knowing it. While our ideas of justice may remain incommensurable, at least we will know where our fellow students and practitioners are coming from.
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