Misplaced Values in our Institutions

-- By KregKatoski - 19 Apr 2009

Although the legal realism embodied in Holmes' idea that “things are what they do” has had a great impact on the way we think about the law, there still remain many discrepancies between what we do and what we aim to accomplish. It appears that our institutions are often subconsciously governed by the notion that things are not what they do, but rather what they signify. We perceive the spectrum of values imposed on us through our institutions as the culmination of hundreds of years of rational thought and experience as to what is and is not just, when, in reality, the emergence of such a system of values is far less organized and systematic than we would like to believe. As Arnold suggests, the elements of consciousness and choice that we attribute to our organizations tend to be misplaced, leading us to assign greater significance to their social output than may be warranted.

Criminal Punishment

We would find it inhumane for a criminal to be beaten or whipped as punishment for a crime, as these forms of punishment are only practiced by uncivilized nations. We would scarcely flinch, however, in sentencing a criminal to 25 years in prison. Though few of us have direct experience with either form of punishment, the vast majority of the population would undoubtedly prefer to be subjected to the former rather than the latter. Why, then, is the preferable punishment considered less humane? What purpose do our values serve if they stand in opposition to desires of those it would seem they are intended to protect?

Perhaps one reason the punishment of being beaten or whipped is viewed as less humane than imprisonment is that it would generally effect little societal change. It is unlikely that a beating would make an individual less likely to commit a crime in the future, while it is often argued that imprisonment will. While in prison, an individual cannot commit crimes against society, and we are led to believe that once released, such an individual will likely be rehabilitated. But rehabilitation on a broad scale seems to be somewhat of a myth, and those who have been incarcerated for half of their lives, upon release, might even prove to be a greater danger to society than when originally convicted. This would severely undermine the argument that incarceration is more humane than beating because the punishment of incarceration benefits society.

The Choice of Attorney

We value the ability of an individual to choose an attorney in a criminal or civil trial. Some might even strongly believe that a denial of this choice would be a violation of one's rights. But it appears that this practice might actually undermine the justice that we undoubtedly value in our legal system.

We believe it to be an important principle of the law that the outcome of a case for a particular party should depend not on the quality of that party's legal representation but on the merits of the case itself. Those who choose attorneys, however, usually do so in order to gain an advantage in court proceedings by buying better lawyering. O.J. Simpson would not have paid top dollar to assemble the "Dream Team" if those lawyers did not stand a better chance of getting him acquitted. This significantly tilts the scales of justice in favor of the rich and powerful, who are able to select the most skilled lawyers. If we are to accept the fact that the law favors those who are able to afford better lawyers in this way, we must accept the notion that justice is not blind and that justice will not be done in many cases.

Conclusion

By acknowledging the inconsistencies between what we value and what we actually do, we can begin to think critically about what values our institutions are actually supporting. This will then allow us to reform our institutions, structuring them so as to better comport with our notions of justice.

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