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Doing Justice

-- By XavierSanchez - 16 Feb 2012

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.

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.

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 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.

How Can I Do Justice?

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.

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 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. This is where creative lawyers are needed. What exactly would lawyers do to address this I am not sure. 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 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

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.

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