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| | -- By XavierSanchez - 16 Feb 2012 |
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< | Doing Justices
Justice is something we do, not something that exists independently. This is an idea introduced in class that I do not know exactly how to respond to. The idea of absolute justice being within human capacity is a claim that seems silly to anyone who takes time to consider it. Human institutions are replete with error, and it seems unlikely 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. |
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> | 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. |
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< | Twelve people -sometimes 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. We do this, I am told, 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 as explained to them by the judge. They deliberate and then reach a verdict. Magically, as Jerome Frank would argue, the uncertain case is resolved with illusionary certainty.
Some points might be
made. Once the jury were fact witnesses, who knew, and who swore to
find a true verdict. Later, they became people who were supposed to
listen to the evidence and make decisions about it. Then they were
considered not just as good as the judge, but better because not
employed by the King in whose name people were being prosecuted, or
(in civil cases) because before the judge the defendant could have
the benefit of compurgation, and just get oath helpers to swear he
didn't owe or wasn't bound. What you're talking about isn't "the
reason we do this," but rather "the current rationalization we use to
explain our continuing to do what we used to do, when we gave other
reasons for it under other conditions." Taking a spin round the
implications of this idea might help you to understand the arguments
being made by Holmes in the Path of the Law a little better.
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> | 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 |
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< | 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 cares not that the law is just, but is only 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 speaking only to the fact that the student should view the law as the bad man. Justice is a vague ideal; the law has material consequences. |
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> | 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. |
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< | Precisely. They often
think that "material consequences" is synonymous with "economic
effects," which is a result of not meaning the word "material" the
way that lawyers do. Law makes a difference. Justice, unless you understand it correctly—in which case you won't be talking either about "absolute justice" or about "the material consequences of the law"—is not what they're talking about when they talk about law. Realism is good, even in their hands.
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> | 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? |
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< | This is where things get complicated. Assuming that it is the law student’s role to do justice, how do I go about doing it. 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.
That's not the only
possible way of understanding "equal justice under law." How did you
decide that the concepts are the same?
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.
Maybe you should accept
the zen proposition that there is no inside and no outside for just a
moment. Maybe we do justice by the way we are, or we don't. And, in
the flow of our lives, both.
If society in general and the legal system in particular treat the poor justly and the rich kindly, it would seem that the path towards justice invariably must deal with this phenomena. |
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> | 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. |
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< | Phenomenon. Or these
phenomena. Failing grammatical agreement of number tends to have a
very undesirable effect on the emotional state of the reader: it's
one of the ways to earn negative social judgment in English. |
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> | 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. |
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< | You haven't offered any reason to think it's "inevitable," which is
therefore just rhetoric. It's a bad idea to use verbs of causation
rhetorically in legal writing. Lawtalk is very precise about
causation, or at any rate it likes to think it is.
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> | 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. |
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< | This is where creative lawyers are needed. What exactly would lawyers do to address this I am not sure. |
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> | 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. |
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< | The sentences compose
to: I am not a creative lawyer. An unfortunate logical conclusion to
recommend to the reader, don't you think?
Government funding for legal services to the poor rises and falls with partisan realignments of power.
Actually, it rose once
under Lyndon Johnson, was struck a fatal blow at the next "partisan
realignment," and has never risen again since.
Restrictions on the services that the Legal Services Corporation 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. What that something more is I am not sure of now. |
| | From Here |
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< | Last semester I learned some of the basic law talk terms. I learned how to read books containing the examples of the law talk experts’ best work. This semester I hope to learn to figure out how to do justice. Or in the alternative, I want to learn to ask the right questions that get me started on that pursuit.
It would have been a
long order for any single semester, and I'm sure we failed "to figure
out how to do justice." That would probably have to be exactly the
sort of absolute justice that doesn't exist. How to understand
something one does by doing it, which we might more succinctly call
"practical reason," the way Kant did, has a different relationship to time.
Why is "I" a prominent character here? Is the draft about you? If
it is, why does it have so little personal experience in it?
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> | 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. |