Law vs. Justice
Yesterday, I attended a continuing education course on winning writs and appeals. The main speaker was Myron Moskovitz, who is a professor at Golden Gate University. As a practitioner, he also has a great record of winning in appellate courts. Most of what he said confirmed what I had already intuitively concluded: judges care more about justice than about law.
That’s not to say the law doesn’t matter. Where there are settled principles, the law certainly matters. But Professor Moskovitz suggested that of the three elements in any argument—facts, policy, and law—you do more to increase the probability of winning by using the facts and public policy than you do by stating the law correctly and applying it to your situation.
He demonstrated this principle by asking the room full of lawyers and judges if we had heard of Rod Blagojevich and the story of his legal troubles. We all had, of course. “How many of you think he’s guilty?” he asked. Many hands around the room went up. The professor paused. “Now, how many of you know what he’s charged with?” One hand darted up. In other words, explained the Professor, in this room full of lawyers and judges, where almost nobody can state the charges at issue, where probably nobody has read a single applicable statute or case, we were willing to convict the guy based just on the story—the facts, the policy, and our sense of justice. Judges are no different.
The law matters, but justice matters more. That may not be fair or even right, but it highlights the tension between law and justice. Most people want justice for themselves, but they want the law applied to others. Law simplifies reality. Law says, “You can consider these things, but not those things.” But justice requires you to think about all those other things. We’re all intimately familiar with the mitigating factors that should result in justice for ourselves, but for others, we want everything simplified. You stole a loaf of bread? Criminal conviction for you! Don’t tell me why. Don’t tell me your family was starving. That doesn’t matter. Irrelevant! But if I stole a loaf of bread? Please, let me explain!
We need law to keep our system of justice rolling. If disputes could only be resolved by considering all the factors that inform our sense of justice, we could hardly work efficiently.
None of this is new or earth-shattering. Anybody who has ever thought seriously about the philosophy of law or politics has struggled with this tension. But we need to recognize that the tension is there. Failure to consider that problem leads to ill-considered views about our own rightness and the wrongness of others, which only breeds more conflict and increases the need to resolve more disputes.
That is probably why President Obama, talking about appointing a replacement for Justice Souter, said:
I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people’s lives, whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation. I view that quality of empathy, of understanding and identifying with people’s hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes. I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role. I will seek somebody who shares my respect for constitutional values on which this nation was founded and who brings a thoughtful understanding of how to apply them in our time.
The President strikes exactly the right tone, I think. Judges must be dedicated to the rule of law and have the empathy that allows them to understand and identify with people’s hopes and struggles. If we could reduce the courts to legalist science, we might have a pure system of neutral principles, but I doubt people would be happy. The laws applied by the courts would still be dictated by legislatures who can be swayed by monied interests,and by the tyranny of the majority in states with more direct forms of democracy. In other words, the disputes would simply be limited to the unabashedly political arena and removed from the place where people can go to tell their story in search of mercy and justice, relief from the legislature, from monied interests and tyrannical majorities.
Neutral principles sound nice in the abstract. They seem fair. But the longer I think about them, the less I think that trying to establish them in the courts will result in a more just society.
Nice post – liked it.
Thanks. I think this one of those subjects that is very difficult and seems esoteric, but considering it persistently is vital to the maintenance of a good society.
Oh ho ho! Michael Steele begs to differ with you. He had some words in response to Obama’s statement about choosing a Justice. Must be one of those compassionate conservatives…yeah:
“I don’t need some judge sitting up there feeling bad for my opponent because of their life circumstances or their condition, and short-changing me and my opportunity to get fair treatment under the law! Crazy nonsense empathetic. I’ll give you empathy. Empathize right on your behind. Craziness.”
Of course. He says that until a judge empathizes with his position and then I’m sure he’s happy about it.
He sounds like somebody who has never had to argue or decide a tough legal question. And the question is not whether the judge is “feeling bad” for one of the parties or “short-changing” the other. When a judge is wondering how to do justice, the question is not, “How can I help the person whose circumstances are more sympathetic?” Instead, the judge is asking, “How can I uphold the rule of law without coming to a result that’s absurd, or that gives people the impression that rules applied technically and dispassionately can be ‘gamed’ by wily litigants?”
If judges did what Michael Steele apparently wants them to do, the concept of “loopholes” and “technicalities” would be more prominent in jurisprudence. And then, when application of those loopholes and technicalities results in injustice, “conservative” wags like Michael Steele will still complain.
On the other hand, if more people seriously took up the problem I sketched out in this post, instead of dismissing it as esoteric or merely philosophical, then we could have a serious conversation about the purpose of law and the role of courts in our society. When people understand not only why we have certain obligations, but how those obligations will play out as they conduct their lives, we might have a society even more civil than the one we have today. (Which, despite all the raging idiots that seem to froth up at every turn, is among the most civil societies in the world.)
It’s kinda weird growing up and discovering that I’m not surprised that people who say things as absurd as Michael Steele can indeed be the leader of a group as large and prominent as the GOP.
How sad for them that they find themselves split between this jackass and Rush Limbaugh.
We would have a much more productive political discourse if people weren’t so shrill with their pronouncements.
This is true but I feel like, and maybe this is just adult onset cyncism, it’s always been shrill to some degree. You know?
I mean, when I was a kid, authority figures were unquestionable. Maybe that’s a feature of the kind of authoritarian upbringing I had, but as a kid, it’s much simpler and the President seems like an infallible person. And Senators and Reps and other public officials were much the same way. Shoot, ask me elementary school if politicians are bad and I might have been able to spit out Nixon’s name.
But then you grow up and realize that it’s all messed up people, because we’re all messed up people in one way or another.
[...] for people, whose ideas about what should happen in court are hardly a rock of consistency. As I wrote a couple months ago: Most people want justice for themselves, but they want the law applied to others. Law simplifies [...]
[...] Judges are forced to make important decisions every day. Even when it seems like they can make those decisions by the application of settled law, they have to rely on their human experience. I recently appeared before a judge who made a decision in my favor by pulling out her code book, reading from a statute that appeared to compel a certain outcome, and telling the other attorney that she had no discretion to do otherwise. To the untrained eye, this judge was acting as a decision-machine, applying the law without recourse to experience or empathy. Experts might see if differently. Since that decision, the other attorney has twice observed that the judge was wrong about the law, and he is probably right. But we had a unique situation, where the opposite decision was probably going to be a greater hassle and expense for everyone involved. How could the judge have known that, except for her experience of humanity and her empathy with the people involved—which clearly encompassed both parties and their attorneys? You might say her decision was wrong on the law, but right on the facts—and just about every time a judge faces a potential split like that, she is probably going to choose the outcome that is right on the facts. In previous essays, I have called that justice. [...]