Law school has been a thought provoking experience, both in terms of the nature of the law as well as how far it falls short of providing justice.
The common law system and indeed, the common law itself, has organically developed over time as an attempt to achieve justice for people unfortunate enough to go through the judicial system. While the righteous goal of justice is the stated purpose of the law, the people involved, all good people I am sure, seem to think that the maintenance of the system of law is sufficient to achieve this end. As far as I can see, this institution suffers from a severe case of goal displacement with the maintenance of the status quo of the law placed unequivocally over justice. Individuals are sacrificed on the altar of internal consistency of the law, where is the justice in that? It appears that Weber's classic bureaucratic goal displacement has taken deep root in the judicial system... the institution's own survival and interests are placed over the initial goal that its creation was meant to achieve.
The ironic part is that, while on the surface it appearz that judges interpret law in an attempt to be consistent and maintain the common law's integrity, they actually succeed in perpetuating a series of systematic hypocrisies.
An example. Violence is one of the prime criminal acts, it is considered detrimental for a wide ranging variety of reasons, many completely true and fair. Preventing and healing violence is an essential part of any system of justice, whether they are common law institutions or traditional ones like a sentencing circle. Yet, the judicial system endorses and perpetuates the violence of the prison system and the death penalty. How is that consistent? It is not at all, many of the reasons we dont want individual violence are the same reasons we don't want institutional violence. But this system supports the justification for the existence of the judicial system in its current incarnation, and indeed, helps maintain the view that it is a necessity.
Perpetuating violence in a society will likewise broaden the power of any institution that attempts to prevent and heal it. But when that institution, through a sort of endemic hypocrisy, actually creates more violence, it enters into a cycle of escalation.
Now don't get me wrong, the design of the institution is a very clever one. Have a whole industry of analyzers to seek the truth (both in fact-finding and in theoretical pursuits) in the pursuit of justice, have them discuss in minute detail the implications of organizing society in certain ways. That is a theoretical system that sounds pretty good to me. But in practice it is an unjust meat-grinder that is driven by greed and power, perpetuating an almost Orwellian-style acceptance of hypocrisy as justice.
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3 comments:
do courts really seek truth? how would your view be affected if courts value efficiency over truth in criminal and civil proceedings?
although a year old, this critique holds. it's good to hear that the author has acted on this critique by being a restorative justice intern.
hopefully the commentator can pursue a similar path.
courts say they seek truth, but i agree with you, they value efficiency over truth.
if you want to work on restorative justice, there are a few organizations that do restorative justice work around. SEEDS, RJOY, Catholic Charities are the ones in the East Bay.
Admittedly, there might be more nuance in this "do courts seek truth question," as is often the case with questions that your meditations raise. It might be worth it to investigate this question a little further...
In civil procedure, we are (I am) taught that the adversarial system through its discovery mechanisms and, later as we will examine, through rules of evidence and through appellate review -- we're taught that these rules create the best conditions in which truth can emerge.
It's because of a skilled adversary's calculating well-prepared questioning of a lying witness in court and showing that a document is not reliable that the truth is revealed: the document was actually forged and the original was destroyed! it is discovered, and the witness was being paid off!! The truth is out! some person might holler.
is this 'truth?'
But on the other hand, the criminal justice system you would agree perhaps is structured to promote "assembly line" justice, to deter crime, provide society with catharsis and satisfy society's lust for vengeance on accused criminals, etc., etc.
"We the jury find that the defendant is not guilty" is the defendant then innocent? Is this verdict still truthful when the defendant, it is shown, might have might been at the crime scene and intentionally fired the gun because he hated the other guy and had it all planned out?
Has the criminal justice system made truth a matter of the following formula:
Something is true when a prosecutor can prove to a jury that the defendant(s) have committed the crime of which they are accused beyond all reasonable doubt; that no serious procedural errors occurred.
alternatively, when a defense attorney proves to a jury that there is reasonable doubt that the defendant may have not committed the crime; that no serious procedural errors occurred.
So, do courts seek truth? Yes! one could argue, and you'd be right. No! one could also argue, and you'd also be right.
But also...the "theoretical inquires" that courts make re-raise your claim...
Don't you ever find it fascinating how a court can examine the fairness of a procedural concept at great length with an eye toward policy effects and reach a conclusion as to what the law should be, and how it should be applied generally and in the case at bar?
Is the court seeking truth, now?
If you think so, then you would have to agree that such a court is seeking the truth, when it is also taking for granted several questionable assumptions about how the legal system works.
In other words, in inquiring as to what a procedural concept should be and how it should apply, the court is implicitly stating that the legal system is itself a valid system of arriving at truth? well, is it?
Is it proper to consider truth in terms of weighing the policy effects of a rule and decision?
Did Galileo or any of the great scientists of the last several centuries considered public policy before rendering an opinion as to how the universe operates?
"Well if I believe that gravity works in this way and that this bowling ball will not reach the ground any faster than this pebble, what will the Genoans say to this?"
Is truth something that should conform to public policy?
I have raised age-old objections that can be discussed at greater lengths. It was kind of a knee-jerk reaction to one claim of your blog.
I'm still down for a diversity of tactics when it comes to working on restorative justice. why limit oneself to one organization when there are at least two more?
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