Justice before the Law

375 Pages·2021·3.347 MB·English

by  Michael Huemer

Justice before the Law
Michael Huemer
Justice before the Law
Michael Huemer
Justice before
the Law
Michael Huemer
Philosophy Department
Univ of Colorado at Boulder
Boulder, CO, USA
ISBN 978-3-030-67542-4 ISBN 978-3-030-67543-1 (eBook)
https://doi.org/10.1007/978-3-030-67543-1
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Preface
I wrote this book for two reasons. The first is that the U.S. legal system,
which has a powerful influence on the rest of society, appears to me to be
among the most dysfunctional aspects of American society. The nation
traditionally known as “the land of the free” has become the world leader
in incarceration. Many are sent to prison for nonviolent offenses, includ-
ing many victimless crimes. Convicts often serve draconian sentences in
overcrowded prisons rife with abuse. Almost all prisoners were convicted
and sentenced without a trial, because prosecutors threaten defendants
with drastically higher sentences in the event that the defendant requests
a trial. Both the criminal and the civil courts are widely feared by
Americans, who know that being involved in legal difficulties can threaten
to bankrupt one, regardless of who is in the right. My first goal in these
pages has thus been to describe the largest problems with the American
legal system, along with some proposed remedies.
My second reason for writing this book is that the field of jurisprudence
has long seemed to me to be burdened with philosophical assumptions, of
central import to the field, that are indefensible. Such assumptions are
more common among legal professionals than among scholars. For
instance, one may hear judges and prosecutors declare that the proper func-
tion of juries is solely to evaluate the factual evidence in a trial, never to
exercise moral judgment. Similarly, many believe that the proper role of
v
vi Preface
judges is only to faithfully interpret and apply the law, not to exercise inde-
pendent moral judgment. And nearly all legal professionals will tell you
that a lawyer is ethically bound to do his best to serve his clients’ interests,
regardless of the interests of justice; hence, it is thought appropriate for a
defense attorney to attempt to set dangerous criminals free, or for a litigator
to attempt to extract exorbitant compensation in a civil case. These assump-
tions are often held with extreme confidence, as if they were proven facts
rather than debatable philosophical stances. When arguments are offered,
they tend to be among the least plausible arguments to be found in any
branch of philosophy or political discourse. Thus, my second goal in this
book is to address the largest errors in conventional jurisprudence. These
errors, by my read, have one main thing in common: they direct agents in
the justice system to disregard considerations of justice and morality.
The practical problems in the American justice system are related to
the intellectual problems in American jurisprudence. In accordance with
conventional legal philosophy, most participants in the justice system do
not directly pursue justice in individual cases. They seek to carry out their
social role as they understand it, regardless of whether the result be good
or evil, just or unjust. It is unsurprising that injustice often results. In this
book, I argue for prioritizing justice. It is not only, in my view, that the
system should be reformed to reduce the most egregious injustices; indi-
vidual agents within the system should explicitly aim at achieving justice
and should carry out their assigned roles under that constraint.
I wrote most of this book while on sabbatical from the University of
Colorado and serving as a Visiting Research Professor at the Murphy
Institute at Tulane University, in 2018–2019. I wish to thank the Institute
as well as my home institution for their support. In addition, I want to
thank Chris Surprenant, Brian Talbot, Stuart Rachels, Matt Skene, and
two anonymous referees for their valuable comments on the manuscript,
which helped to correct numerous mistakes and shortcomings. Of course,
none of these other scholars are responsible for any errors that remain. All
mistakes and shortcomings of the book are most likely the fault of the
government. Undoubtedly, a much better book could be written by a
philosopher at a private school.
Boulder, CO, USA Michael Huemer
Contents
Part I Foundations for a Defense of Justice 1
1 Introduction 3
2 Law and Morality 13
Part II Legal Injustices 43
3 Unjust Laws 45
4 The Price of Justice 75
5 Extorted Pleas 111
6 Unjust Punishments 143
7 Abuse of Power 169
Part III In Defense of Justice 227
8 The Primacy of Justice 229
9 Th e Authority of Law 255
10 Role Playing 271
11 Th e Rule of Law 313
12 Conclusion 345
Index 369
vii
List of Figures
Fig. 2.1 Taxonomy of appearances 36
Fig. 4.1 Length of the Code of Federal Regulations 86
Fig. 4.2 Prevalence of lawyers and lawsuits 102
ix
Part I
Foundations for a Defense
of Justice
1
Introduction
1.1 The Problem of Legal Injustice
If there is any institution in our society that should embody the pursuit
of justice, it is the legal system. The division of the system concerned with
criminal law is commonly referred to as “the justice system”. Many court-
house grounds are decorated with statues of Lady Justice. The motto
engraved in stone on the West side of the U.S. Supreme Court building
reads, in capital letters, “EQUAL JUSTICE UNDER LAW”, while the
East side bears the inscription, “JUSTICE THE GUARDIAN OF
LIBERTY”. So one might assume that the system focuses mainly, if not
entirely, on justice, and that the details of legal procedures, doctrines, and
decisions will be explicable in terms of that concern for justice. And that,
indeed, is often true.
But not always. Frequently, there are clear, serious injustices built into
legal rules and practices. Some laws unjustly penalize behavior that is
morally blameless. Some legal norms encourage or expressly direct actors
within the system to place other concerns ahead of justice. Some prac-
tices violate individuals’ rights or create unreasonable risks of unjust out-
comes. In the following chapters, I will have much to say about these
© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 3
M. Huemer, Justice before the Law, https://doi.org/10.1007/978-3-030-67543-1_1