Asymmetrical Attitudes and Participatory Justice

AuthorMichael Giudice
PositionAssistant Professor, Department of Philosophy, York University, Toronto, Canada
Pages15-31

Page 15

I Introduction

A comprehensive moral criticism of a legal system must assess the merits not only of particular decisions or rules, but also the very structural features and fundamental attitudes which constitute life under law. In his recent book The Myth of Moral Justice, Thane Rosenbaum offers precisely such a comprehensive critique of the American legal system.1Rosenbaum suggests several important ways in which the American legal system fails to meet moral objectives which ought to be fundamental to any legal order. Among these objectives are meaningful participation from parties to a dispute and a flexible range of legal remedies.2 Each of his criticisms relies, in one way or another, on recognition of the asymmetry of attitudes toward law held by legal officials and non-officials: judges and lawyers simply relate to law differently than citizens.3

The first part of this paper will be devoted to exploration of the grounds of Rosenbaum's criticisms, adding further weight to the claim that identification of differences between moral and legal reasoning helps explain how modern legal systems often create deficiencies in moral justice.4 In the second part of this paper, I will expand on Rosenbaum's insight that a comprehensive moral criticism of a legal system will also identify the best practices and models for improving law's ability to meet reasonably made moral demands.5 These best practices and models identify limits and alternatives to existing conceptual structures and practices of law, and thus offer a richer understanding and way forward.

To this end, I will examine emerging conceptions of participatory justice in Canadian legal practices and show how they take seriouslyPage 16 fundamental differences between moral reasoning and conventional legal reasoning. While conventional legal reasoning is typically source-based, purporting to draw exclusively from existing general rules and standards, moral reasoning includes the willingness to reconsider, in every case, the merits of general rules and standards in light of particular contexts. Participatory justice has direct roots in Aboriginal conceptions of justice, so I will focus on the nature of Aboriginal legal traditions in Canada. Aboriginal legal traditions and conceptions of justice challenge many of the most deeply-held conceptions and attitudes of modern developed legal systems and display many of the moral virtues Rosenbaum believes to be fundamental to any legal order.

II Asymmetrical Attitudes

One of the central characteristics of life under law, according to Rosenbaum, is the gap between citizens' and legal officials' experience of law. In Rosenbaum's view, there exists in the United States a clear and distinct polarization of attitudes between the legal profession and the public. He writes:

The law and its practitioners simply wish to streamline the system in search of the bottom line, to move cases along, to create a process that allows rules to develop and precedents to evolve, and, most important of all, to achieve the correct legal result. Legal, and not moral, outcomes occupy the legal mind. But the public cares little about the efficiency of court administrations and the evolution of legal rules. People look to the law to provide remedies for their grievances and relief from their hurts, to receive moral lessons about life, to better themselves and their communities. What most people don't realize is that judges and lawyers are motivated by entirely different agendas and mindsets.6

While there are certainly exceptions to the bleak picture painted by Rosenbaum's observations, they do capture an often familiar picture which makes the polarization itself worth considering. Lawyers and judges often appear to citizens as rigid in method and unduly bound by statutory provisions, precedents, and legal principles. What are some of the reasons which might explain how and why legal officials and citizens relate to law in different ways?Page 17

A Generalization v. Particularization

It is not feasible for a modern legal system to offer tailor-made guidance and instruction to each individual or for every particular occasion.7 Instead, legal systems develop general standards applicable across groups and individuals. Much of the operation of such a legal system -the responsibility of judges, lawyers, and other officials- is to classify or subsume fact situations and disputes under general categories. Was the defendant "negligent" in the sense recognized by law? Were Jones's actions in "breach" of his contract with Smith? Does Sally meet the condition of "responsibility" necessary for "criminal liability?" These categories and others serve a general purpose: they provide the means for officials to classify and resolve disputes.8

The disposition to generalize reflects legal officials' concern to pursue consistency, coherence, efficiency, and comprehensiveness in the reach of the law in their activities and decisions. If several cases can be dealt with under a single rule, or with the same combination of rules and standards, then officials can be assured (if the cases are genuinely similar) that the cases have been handled consistently and fairly. Yet, as Rosenbaum observes, generalization often requires only a minimal understanding of the circumstances of particular disputes -at the cost of recognition of the particular nature of the wrong done in a particular case. For most legal actions to succeed, all that is required is evidence of physical harm or quantifiable property loss.9 Yet, while restricting law's task to establishing physical harm and property loss simplifies the work of legal officials, the consequence is that relatively little input from the affected parties is required. All that is needed is testimony that harm to persons or property was suffered and that the accused or defendant caused the harm in a way which breached an obligation.

As Rosenbaum rightly argues, an important effect of officials' preoccupation with generalization and tangible harm is that legal processes and practices of argument tend to strip away multifaceted and diverse emotional elements from actual disputes, which would otherwise help toPage 18 understand the wider impact and nature of harms.10 Emotional responses and reactions to events typically have no place in the legal assessment of cases: only the legally relevant and established facts of the dispute are of any importance.

The tendency to generalize explains much of the task of legal officials -from legislators to judges- and to the extent that consistency is a dimension of justice and fairness, this task is justified. Yet, it is important to observe that generalization can go wrong in two familiar, yet significant, ways.11 First, officials might misidentify or misunderstand disputes and misapply the existing rules by categorizing fact situations incorrectly. Courts might simply get it wrong about whether the defendant was negligent, or whether Jones breached his contract with Smith, or Sally meets the conditions of responsibility necessary for criminal liability.

Second, a legal system's set or collection of general concepts, categories, and rules might itself be flawed. The manner in which a legal system's collection of rules carves up the social reality of human relationships and interactions might be inadequate. Rosenbaum provides a useful example of this second kind of failure: the legal fiction that what distinguishes a crime from other legal wrongs is that the harm of a crime is committed against the state.12 One consequence of this way of viewing criminal law is that it turns victims into witnesses, whose purpose is merely to give evidence of an alleged crime against the state.13 Exposure of the extent and danger of the use of fictions in law -for example, that judges only find and never make law- has been a longstanding jurispru-Page 19dential concern, perhaps originating from the work of English philosopher Jeremy Bentham.14

Citizens typically regard themselves as more than mere witnesses in their interaction with law. Unlike officials, who view particular cases as instances of a general type or category, citizens regard their disputes as deserving of individual consideration with attention to special, defining characteristics of the particular dispute. In other words, citizens typically seek to particularize their disputes and resist attempts to have their cases categorized at the cost of missing important details. Citizens believe context-sensitivity is more valuable than being decided according to general rules.15 In the second part of this paper, I will examine how practices of participatory justice attempt to particularize disputes by taking context-sensitivity seriously.

From the perspective of citizens, particularization -which we can formulate as the resistance to fitting disputes and fact situations into existing general rules and principles- is valuable for a number of reasons. The guiding presumption of particularization is that every dispute is unique, and therefore, merits individual understanding. Such an approach, it is believed, creates less of a risk of the two dangers which generalization faces. By resisting resort to general rules and principles, there is a reduced chance of misunderstanding disputes and thus incorrectly categorizing fact situations.16 Also, by putting aside general concepts and fictions found in law, there is a diminished possibility of being left with counter-intuitive accounts of social reality.

These two flaws are significant problems, yet there is no reason to suppose they are necessarily fatal to the hope of...

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