The Myth of Moral Justice: Why Our Legal System Fails to Do Whats Right
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Individuals seek out lawyers and enter courtrooms because they have an emotional grievance as well as a legal complaint. They expect the law to do the right thing. Yet our legal system, bent on separating the legal from the emotional, willfully ignores basic moral criteria. As a result, the justice system undermines truth, perpetuates secrets and lies, prevents victims from telling their stories, promotes adversarial enmity over community repair, and fails to equate legal duty with moral responsibility.
Legal outcomes that make sense to lawyers and judges feel simply wrong to most people and enrage others. With a lawyer's expertise and a novelist's sensibility, Rosenbaum tackles complicated philosophical questions about our longing for moral justice.
He also takes a critical look at what our legal system does to the spirits of those who must come before the law, along with those who practice within it. Generality is an important feature of legality, reflected in the longstanding constitutional antipathy to Bills of Attainder. These rules themselves should operate impersonally and impartially. Besides the form of the rules themselves there is also the nature of their presence in society.
The Rule of Law envisages law operating as a relatively stable set of norms available as public knowledge. These are features that flow partly from the fact that laws are supposed to guide conduct, which they cannot do if they are secret or retroactive. But it is not just a matter of the pragmatics of governance. Laws face in two directions: i they impose requirements for ordinary citizens to comply with; and ii they issue instructions to officials about what to do in the event of non-compliance by the citizens.
Laws that are secret and retroactive so far as i is concerned may still operate effectively in respect of ii. So the Rule-of-Law requirements of publicity and prospectivity have an additional significance: they require that citizens be put on notice of what is required of them and of any basis on which they are liable be held to account. The requirement of clarity is also important in this regard. Laws must be public not only in the sense of actual promulgation but also in the sense of accessibility and intelligibly.
True, much modern law is necessarily technical Weber : —95 and the lay-person will often require professional advice as to what the law requires of him.
It is also an important part of the Rule of Law that there be a competent profession available to offer such advice and that the law must be such as to make it possible for professionals at least to get a reliable picture of what the law at any given time requires. In the nineteenth century, Jeremy Bentham ch. We should complement this list of formal characteristics with a list of procedural principles as well, which are equally indispensable to the Rule of Law. We might say that no one should have any penalty, stigma or serious loss imposed upon them by government except as the upshot of procedures that involve I have adapted this list from Tashima :.
What the detainees demanded, in the name of the Rule of Law, was an opportunity to appear before a proper legal tribunal, to confront and answer the evidence against them such as it was , and to be represented so that their own side of the story could be explained. No doubt the integrity of these proceedings would depend in part on the formal characteristics of the legal norms that were supposed to govern their detention, whose application in their case they could call in question at the hearings that they demanded.
It is difficult to make a case at a hearing if the laws governing detention are kept secret or are indeterminate or are constantly changing. Even so, we still miss out on a whole important dimension of the Rule of Law ideal if we do not also focus on the procedural demands themselves which, as it were, give the formal side of the Rule of Law this purchase.