Week Four, Law and Society

Assignments for Week 4:

I.  Read Chapter 3 in your Samaha textbook and Lecture 3 below for this week’s quiz.

II.  Cases in class this week:

            Chapter 3, State v. Moore

            Chapter 3, State v. Newman

            Chapter 3, Commonwealth v. Pestinikas

Lecture 3, Justice and Law

1. The perception of law is that it is a synonym for justice; however, what is lawful may not be just.  The death sentence imposed on Socrates in ancient Athens may have been lawful, but it was not just.  Socrates was condemned to death by a jury of his peers because they believed that his teaching was corrupting the youth of the city.  Justice may also be thought of as a process of preventing a sense of injustice, which has been defined as the anger we feel when we are denied benefits we believe is our due.  

2. These generalities do not help to answer the specific questions about justice and the law.  For example, is the requirement that welfare mothers accept job assignments just or not?  Do people who commit murder deserve the death penalty? Are strip searches necessary security procedures or affronts to human dignity?  To add to the difficulty of definition, the sense of injustice is not experienced uniformly.   

3. We know that people want to believe they live in a "just world," where all get their just deserts.  [Note:  this is the correct spelling of deserts, but it is pronounced the same as desserts.] Of course, the specific content of "just deserts" varies between individuals, groups, and whole cultures.  Is probation, imprisonment, or the amputation of a hand the just penalty for theft?  Is the family of a person who has died through the negligent actions of another entitled to $200,000, $500,000, or $1 million?  On what basis do we decide?

Procedural Justice and Substantive Justice

1. Procedural justice refers to achieving fairness in legal procedure.  Substantive justice refers to achieving a correct or appropriate outcome in a legal case.  Our hope is that fair procedures will result in appropriate outcomes, but this is far from guaranteed in our system of law.  Procedural fairness is associated with the idea that the accused, or the defendant, should enjoy the fullest measure of due process and have every opportunity to raise a reasonable doubt or challenge evidence.  

2. The debate over the exclusionary rule highlights this fairness dilemma.  This rule requires the exclusion of improperly or illegally obtained evidence from a trial; if such evidence has been used to obtain the conviction, the conviction must be overturned.  An example of improperly obtained evidence could be a confession secured without providing the accused with a recital of his or her rights as a suspect (a Miranda warning), or physical evidence seized without a proper search warrant.  Many people will experience a sense of outrage as an obviously guilty criminal goes free based on the exclusionary rule.  

3. This highlights a difference between legal and scientific thinking.  In legal thinking, justice has been achieved if the procedures are fair.  In scientific thinking, substantive justice is what is more important.

Law, Violence, and Justice

1. Those in power have a disproportionate say in how justice is defined.  The state declares its own violence as necessary to ensure order and justice, and considers the violence of individuals and anti-state groups criminal.  However, throughout history, revolutionary and anti-state violence has often been carried out to achieve justice.  Such violence includes the acts of American revolutionaries, early labor unionists, and oppressed minorities.

2. The idea of challenging unjust institutions can be traced in America's political history.  The English philosopher John Locke, who greatly influenced the founding fathers, held that in a democratic society people have the right to alter or abolish institutions found to be detrimental to justice.  The 20th Century philosopher Herbert Marcuse argued that revolutionary violence was really a form of counter violence, carried out against the existing violence of the state.

3. Finally, as long as socioeconomic and other forms of inequality persist, a certain level of injustice will be inevitable.  Those who have more resources will have advantages before the law than those with modest resources.  Any number of poor but innocent people have been convicted of crimes and punished, and sometimes executed, because a good legal counsel was not available to them.  Wealthy criminal defendants have been able to hire a "dream team" of attorneys and overcome substantial evidence of guilt.  Individuals engaged in civil lawsuits with wealthier, more powerful businesses tend to be at a substantial disadvantage.  In the absence of a level playing field, the hope of realizing justice for all is an illusion.  


1. Law is entangled with questions of justice, and the tensions and conflicts arising in this context should be evident.  

© Karen Donahue 2017