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67-700: The legal process school (sometimes "legal process theory") was a movement within American law that attempted to chart a third way between legal formalism and legal realism . Drawing its name from Hart & Sacks' textbook The Legal Process (along with Hart & Wechsler's textbook The Federal Courts and the Federal System , considered a primary canonical text of the school), it is associated with scholars such as Herbert Wechsler , Henry Hart , Albert Sacks and Lon Fuller , and their students such as John Hart Ely and Alexander Bickel . The school grew in

134-464: A sentence forms the final explicit act of a judge -ruled process, and also the symbolic principal act connected to his function. The sentence can generally involve a decree of imprisonment , a fine and/or other punishments against a defendant convicted of a crime . Laws may specify the range of penalties that can be imposed for various offenses, and sentencing guidelines sometimes regulate what punishment within those ranges can be imposed given

201-560: A Law of Rules . Frederick Schauer , a professor at the University of Virginia School of Law, in 1988 published a law review article titled "Formalism" in The Yale Law Journal . In it he urges scholars to rethink the "contemporary aversion to formalism" and states that his goal is to "rescue formalism from conceptual banishment". He argues that formalism should be conceptually rethought, not in terms merely of whether it

268-579: A certain set of offense and offender characteristics. The most common purposes of sentencing in legal theory are: In civil cases the decision is usually known as a verdict , or judgment, rather than a sentence. Civil cases are settled primarily by means of monetary compensation for harm done (" damages ") and orders intended to prevent future harm (for example injunctions ). Under some legal systems an award of damages involves some scope for retribution, denunciation and deterrence, by means of additional categories of damages beyond simple compensation, covering

335-424: A city in his philosophy, which he describes through the metaphor of a chariot: it functions effectively when the charioteer, representative of reason, successfully controls the two horses, symbolizing spirit and desire. Continuing on these themes, Plato theorizes that those who love wisdom, or philosophers , are the most ideal to govern because only they truly comprehend the nature of the good. Just like one would seek

402-415: A disagreement (or trial in some cases). According to utilitarian thinkers including John Stuart Mill , justice is not as fundamental as we often think. Rather, it is derived from the more basic standard of rightness, consequentialism : what is right is what has the best consequences (usually measured by the total or average welfare caused). So, the proper principles of justice are those that tend to have

469-411: A doctor's expertise in matters of health rather than a farmer's, so should the city entrust its governance to someone knowledgeable about the good, rather than to politicians who might prioritize power over people's genuine needs. Socrates later used the parable of the ship to illustrate this point: the unjust city is like a ship in open ocean, crewed by a powerful but drunken captain (the common people),

536-428: A government of laws, and not of men." Formalism seeks to maintain that separation as a "theory that law is a set of rules and principles independent of other political and social institutions." Legal formalism can be contrasted to legal instrumentalism, a view associated with American legal realism . Instrumentalism is the view that creativity in the interpretation of legal texts is justified in order to assure that

603-461: A group of untrustworthy advisors who try to manipulate the captain into giving them power over the ship's course (the politicians), and a navigator (the philosopher), the latter of whom being the only one who knows how to get the ship to port. Advocates of divine command theory say justice, and indeed the whole of morality, is the authoritative command of God. Murder is wrong and must be punished, for instance, because God says it so. Some versions of

670-410: A judge's reasons reflect the facts that the judge considered to be relevant, and the principles that the judge arrived at to reach the judgement. They therefore place little emphasis on the means by which a judge determines the facts. As a normative theory, legal formalists argue that judges and other public officials should be constrained in their interpretation of legal texts, suggesting that investing

737-558: A significant secondary role. Theories of distributive justice need to answer three questions: Distributive justice theorists generally do not answer questions of who has the right to enforce a particular favored distribution, while property rights theorists say that there is no "favored distribution". Rather, distribution should be based simply on whatever distribution results from lawful interactions or transactions (that is, transactions which are not illicit). In Anarchy, State, and Utopia , Robert Nozick said that distributive justice

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804-469: A single global community with a shared morality. Social justice is also distinct from egalitarianism , which is the idea that all people are equal in terms of status, value, or rights, as social justice theories do not all require equality. For example, sociologist George C. Homans suggested that the root of the concept of justice is that each person should receive rewards that are proportional to their contributions. Economist Friedrich Hayek said that

871-541: A view of negative liberty, in the form of freedom from governmental interference. He further extends the concept of negative liberty in endorsing John Stuart Mills' harm principle: "the sole end for which mankind are warranted, individually and collectively, in interfering with the liberty of action of any of their number, is self-protection", which represents a classical liberal view of liberty. In political theory, liberalism includes two traditional elements: liberty and equality. Most contemporary theories of justice emphasize

938-465: Is a form of fairness: an impartial distribution of goods. Rawls asks us to imagine ourselves behind a veil of ignorance that denies us all knowledge of our personalities, social statuses, moral characters, wealth, talents and life plans, and then asks what theory of justice we would choose to govern our society when the veil is lifted, if we wanted to do the best that we could for ourselves. We do not know who in particular we are, and therefore can not bias

1005-590: Is a good or bad thing, but also in terms of how language both can and should be used to restrict the power of decision-makers in the decision-making process. In his essay "Formal and informal in legal logic", Jan Woleński contends that there are "rhetorical functions of metalogical concepts that are used in legal discourse", and hence the introduction of the informal into otherwise imperative logic . He reviews Jørgensen's paradox to introduce deontic logic , and acknowledges this innovation by Georg Henrik von Wright . Justice Justice , in its broadest sense,

1072-542: Is deductively valid to say that the existence of an objective morality implies the existence of God and vice versa. Jews , Christians , and Muslims traditionally believe that justice is a present, real, right, and, specifically, governing concept along with mercy , and that justice is ultimately derived from and held by God . According to the Bible , such institutions as the Mosaic Law were created by God to require

1139-404: Is fair based on what goods are to be distributed, between whom they are to be distributed, and what is the proper distribution. Egalitarians suggest justice can only exist within the coordinates of equality. Theories of retributive justice say justice is served by punishing wrongdoers, whereas restorative justice (also sometimes called "reparative justice") is an approach to justice that focuses on

1206-471: Is just, and what anyone else does or does not have or need is irrelevant. On the basis of this theory of distributive justice, Nozick said that all attempts to redistribute goods according to an ideal pattern, without the consent of their owners, are theft. In particular, redistributive taxation is theft. Some property rights theorists (such as Nozick) also take a consequentialist view of distributive justice and say that property rights based justice also has

1273-443: Is not a matter of the whole distribution matching an ideal pattern , but of each individual entitlement having the right kind of history . It is just that a person has some good (especially, some property right ) if and only if they came to have it by a history made up entirely of events of two kinds: If the chain of events leading up to the person having something meets this criterion, they are entitled to it: that they possess it

1340-399: Is proportionate to their contribution. They are in the right place, always striving to do their best, and reciprocating what they receive in a fair and equitable manner. This applies both at the individual level and at the organizational and societal levels. To illustrate these ideas, Plato describes a person as having three parts: reason, spirit, and desire. These parallel the three parts of

1407-536: Is that the task of developing and updating law is better done incrementally by courts that keep in close touch with social, economic, and technological realities than by political organs that, every so often, will attend to legal reforms. Thus legal realism or "relationalism" has been favored in some common law jurisdictions, where the kind of legal codification associated with civil law is virtually unknown. The late United States Supreme Court Justice Antonin Scalia

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1474-455: Is the concept of cardinal virtues , of which it is one. Metaphysical justice has often been associated with concepts of fate , reincarnation or Divine Providence , i.e., with a life in accordance with a cosmic plan. The equivalence of justice and fairness has been historically and culturally established. In his A Theory of Justice , John Rawls used a social contract argument to show that justice, and especially distributive justice,

1541-614: Is the concept that individuals are to be treated in a manner that is equitable and fair. A society in which justice has been achieved would be one in which individuals receive what they "deserve". The interpretation of what "deserve" means draws on a variety of fields and philosophical branches including ethics , rationality , law , religion , equity and fairness. The state may be said to pursue justice by operating courts and enforcing their rulings. A variety of philosophical and moral theories have been advanced to inform understanding of justice. Early theories of justice were set out by

1608-488: Is the interest of the strong – merely a name for what the powerful or cunning ruler has imposed on the people. Advocates of the social contract say that justice is derived from the mutual agreement of everyone; or, in many versions, from what they would agree to under hypothetical conditions including equality and absence of bias. This account is considered further below, under ' Justice as Fairness '. The absence of bias refers to an equal ground for all people involved in

1675-409: Is usually understood as some combination of talent and hard work. According to needs -based theories, goods, especially such basic goods as food, shelter and medical care, should be distributed to meet individuals' basic needs for them. According to contribution -based theories, goods should be distributed to match an individual's contribution to the overall social good. Social justice encompasses

1742-606: The Israelites to live by and apply God's standards of justice. The Hebrew Bible describes God as saying about the Judeo-Christian-Islamic patriarch Abraham : "No, for I have chosen him, that he may charge his children and his household after him to keep the way of the Lord by doing righteousness and justice;...." ( Genesis 18:19, NRSV) . The Psalmist describes God as having "Righteousness and justice [as]

1809-419: The 1950s and 1960s. To this day, the school's influence remains broad. Although legal process is no longer popular by name, particularly in the academy, it can be seen as harmonizing with both major modern schools of judicial thought, textualism and purposivism , depending on which of the foregoing assumptions are emphasized. Legal formalism The ultimate goal of legal formalism would be to describe

1876-631: The Ancient Greek philosophers Plato , in his work The Republic , and Aristotle , in his Nicomachean Ethics and Politics . Religious explanations of justice can be grouped under the divine command theory , which holds that justice issues from God. Western thinkers later advanced different theories about where the foundations of justice lie. In the 17th century, philosophers such as John Locke said justice derives from natural law . Social contract theory, advocated by thinkers such as Jean-Jacques Rousseau , says that justice derives from

1943-540: The West begins, in Plato 's Republic , with the question, 'What is Justice?' According to most contemporary theories of justice, justice is overwhelmingly important: John Rawls claims that "Justice is the first virtue of social institutions, as truth is of systems of thought." In classical approaches, evident from Plato through to Rawls , the concept of 'justice' is always construed in logical or 'etymological' opposition to

2010-419: The application of uncontroversial principles to the facts; "sound legal decisions can be justified as the conclusions of valid deductive syllogisms ." Formalism remains one of the most influential and important theories of adjudication and has been called the thesis to which realism is the antithesis. Formalism sees adjudication as the uncontroversial application of accepted principles to known facts to derive

2077-463: The best consequences overall (perhaps executing a few suspected shoplifters live on television would be an effective deterrent to shoplifting, for instance). It also suggests that punishment might turn out never to be right, depending on the facts about what actual consequences it has. According to the utilitarian, justice requires the maximization of the total or average welfare across all relevant individuals. This may require sacrifice of some for

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2144-508: The best consequences. These rules may turn out to be familiar ones such as keeping contracts ; but equally, they may not, depending on the facts about real consequences. Either way, what is important is those consequences, and justice is important, if at all, only as derived from that fundamental standard. Mill tries to explain our mistaken belief that justice is overwhelmingly important by arguing that it derives from two natural human tendencies: our desire to retaliate against those who hurt us, or

2211-440: The brain and that, "Fairness is activating the same part of the brain that responds to food in rats... This is consistent with the notion that being treated fairly satisfies a basic need". Research conducted in 2003 at Emory University involving capuchin monkeys demonstrated that other cooperative animals also possess such a sense and that " inequity aversion may not be uniquely human". Instrumental theories of justice look at

2278-644: The concept connecting law to justice, since law cannot be applied without reference to justice. In that context, justice is seen as 'the rationale and the ethical foundation of equity'. One approach towards equity in justice is community policing . Marxism is a needs-based theory, expressed succinctly in Marx's slogan " from each according to his ability, to each according to his need ". Relational justice examines individual connections and societal relationships, focusing on normative and political aspects. Rawls' theory of justice aims to distribute social goods to benefit

2345-415: The concept of equality, including Rawls' theory of justice as fairness. For Ronald Dworkin, a complex notion of equality is the sovereign political virtue. Dworkin raises the question of whether society is under a duty of justice to help those responsible for the fact that they need help. Complications arise in distinguishing matters of choice and matters of chance, as well as justice for future generations in

2412-458: The concept of injustice. Such approaches cite various examples of injustice, as problems which a theory of justice must overcome. A number of post-World War II approaches do, however, challenge that seemingly obvious dualism between those two concepts. Justice can be thought of as distinct from benevolence , charity , prudence , mercy , generosity , or compassion , although these dimensions are regularly understood to also be interlinked. Justice

2479-404: The concept of social justice was meaningless, saying that justice is a result of individual behavior and unpredictable market forces. Social justice is closely related to the concept of relational justice, which is about the just relationship with individuals who possess features in common such as nationality, or who are engaged in cooperation or negotiation. In legal theory , equity is seen as

2546-424: The consequences of punishment for wrongdoing, looking at questions such as: In broad terms, utilitarian theories look forward to the future consequences of punishment, retributive theories look back to particular acts of wrongdoing and attempt to match them with appropriate punishment, and restorative theories look at the needs of victims and society and seek to repair the harms from wrongdoing. According to

2613-468: The decision in our own favor. So, the decision-in-ignorance models fairness, because it excludes selfish bias . Rawls said that each of us would reject the utilitarian theory of justice that we should maximize welfare (see below) because of the risk that we might turn out to be someone whose own good is sacrificed for greater benefits for others. Instead, we would endorse Rawls's two principles of justice : This imagined choice justifies these principles as

2680-508: The differences among social groups offers a better approach, one which acknowledges unjust power relations among individuals, groups, and institutional structures. Young Kim also takes a relational approach to the question of justice, but departs from Iris Marion Young's political advocacy of group rights and instead, he emphasizes the individual and moral aspects of justice. As to its moral aspects, he said that justice includes responsible actions based on rational and autonomous moral agency, with

2747-434: The effect of maximizing the overall wealth of an economic system. They explain that voluntary (non-coerced) transactions always have a property called Pareto efficiency . The result is that the world is better off in an absolute sense and no one is worse off. They say that respecting property rights maximizes the number of Pareto efficient transactions in the world and minimized the number of non-Pareto efficient transactions in

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2814-408: The extent that human welfare involves them. But even then, such demands as human rights would only be elements in the calculation of overall welfare, not uncrossable barriers to action. Retributive justice argues that consequentialism is wrong, as it argues that all guilty individuals deserve appropriate punishment, based on the conviction that punishment should be proportional to the crime and for all

2881-421: The facts and the law, all normative issues such as morality or politics being irrelevant. If judges are seen to be simply applying the rules in a mechanical and uncontroversial manner, this protects judges from criticism. For this reason, formalism has been called "the official theory of judging." Formalists, contrary to Realists, take the judge at face value, assuming that the facts and principles as recorded in

2948-426: The feeling of self-defense and our ability to put ourselves imaginatively in another's place, sympathy. So, when we see someone harmed, we project ourselves into their situation and feel a desire to retaliate on their behalf. If this process is the source of our feelings about justice, that ought to undermine our confidence in them. It has been said that 'systematic' or 'programmatic' political and moral philosophy in

3015-436: The foundation of [His] throne;...." (Psalms 89:14, NRSV). The New Testament also describes God and Jesus Christ as having and displaying justice, often in comparison with God displaying and supporting mercy ( Matthew 5:7). For advocates of the theory that justice is part of natural law (e.g., John Locke ), justice inheres in the nature of man. In Republic by Plato , the character Thrasymachus argues that justice

3082-405: The gods because it is morally good, or is it morally good because it is commanded by the gods?" The implication is that if the latter is true, then justice is beyond mortal understanding; if the former is true, then morality exists independently from the gods, and is therefore subject to the judgment of mortals. A response , popularized in two contexts by Immanuel Kant and C. S. Lewis , is that it

3149-405: The good of others, so long as everyone's good is taken impartially into account. Utilitarianism, in general, says that the standard of justification for actions, institutions, or the whole world, is impartial welfare consequentialism , and only indirectly, if at all, to do with rights , property , need , or any other non-utilitarian criterion. These other criteria might be indirectly important, to

3216-558: The guilty. However, it is sometimes said that retributivism is merely revenge in disguise. However, there are differences between retribution and revenge: the former is impartial and has a scale of appropriateness, whereas the latter is personal and potentially unlimited in scale. Restorative justice attempts to repair the harm that was done to the victims. It encourages active participation from victims and encourages offenders to take responsibility for their actions. Restorative justice fosters dialogue between victim and offender and shows

3283-517: The highest rates of victim satisfaction and offender accountability. Meta-analyses of the effectivity of restorative justice show no improvement in recidivism . Some modern philosophers have said that Utilitarian and Retributive theories are not mutually exclusive. For example, Andrew von Hirsch , in his 1976 book Doing Justice , suggested that we have a moral obligation to punish greater crimes more than lesser ones. However, so long as we adhere to that constraint then utilitarian ideals would play

3350-485: The individual as the proper bearer of rights and responsibilities. Politically, he maintains that the proper context for justice is a form of liberalism with the traditional elements of liberty and equality, together with the concepts of diversity and tolerance. The phrase " Justice delayed is justice denied " refers to the problem of slow justice. The right to speedy trial is in some jurisdictions enshrined. Higher quality justice tends to be speedy. In criminal law ,

3417-489: The judiciary with the power to say what the law should be, rather than confining them to expositing what the law does say, violates the separation of powers . This argument is expressed clearly in Massachusetts Constitution of 1780, which provides that the judiciary "shall never exercise the legislative and executive powers, or either of them; to the end [that Massachusetts' government] may be

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3484-408: The just relationship between individuals and their society, often considering how privileges, opportunities, and wealth ought to be distributed among individuals. Social justice is also associated with social mobility , especially the ease with which individuals and families may move between social strata . Social justice is distinct from cosmopolitanism , which is the idea that all people belong to

3551-517: The law serves good public policy and social interests, although legal instrumentalists could also see the end of law as the promotion of justice or the protection of human rights . It also advocates the use of judicial discretion. However, legal formalists counter that giving judges authority to change the law to serve their own ideas regarding policy undermines the rule of law. This tension is especially interesting in common law , which depends on judicial precedent . The assumption of common law systems

3618-433: The law, not for equality of outcome . Classical liberalism opposes pursuing group rights at the expense of individual rights . In addition to equality, individual liberty serves as a core notion of classical liberalism. As to the liberty component, British social and political theorist, philosopher, and historian of ideas Isaiah Berlin identifies positive and negative liberty in "Two Concepts of Liberty", subscribing to

3685-521: The meaning of what is "deserved". The main distinction is between theories that say the basis of just deserts ought to be held equally by everyone, and therefore derive egalitarian accounts of distributive justice – and theories that say the basis of just deserts is unequally distributed on the basis of, for instance, hard work, and therefore derive accounts of distributive justice by which some should have more than others. Studies at UCLA in 2008 have indicated that reactions to fairness are "wired" into

3752-424: The mutual agreement of members of society to be governed in a political order. In the 19th century, utilitarian philosophers such as John Stuart Mill said that justice is served by what creates the best outcomes for the greatest number of people. Modern frameworks include concepts such as distributive justice , egalitarianism , retributive justice , and restorative justice . Distributive justice considers what

3819-425: The needs of victims and offenders. Justice, according to Plato , is about balance and harmony. It represents the right relationship between conflicting aspects within an individual or a community. He defines justice as everyone having and doing what they are responsible for or what belongs to them. In other words, a just person is someone who contributes to society according to their unique abilities and receives what

3886-427: The outcome in the manner of a deductive syllogism. Formalists believe that the relevant principles of law of a given area can be discerned by surveying the case law of that area. Christopher Columbus Langdell believed that the only resources needed to create a science of law was a law library. Formalism has been called an "autonomous discipline," in reference to the formalist belief that judges require only

3953-428: The poor, but does not consider power relations, political structures, or social meanings. Even Rawls' self-respect is not compatible with distribution. Iris Marion Young charges that distributive accounts of justice fail to provide an adequate way of conceptualizing political justice in that they fail to take into account many of the demands of ordinary life and that a relational view of justice grounded upon understanding

4020-536: The principles of justice for us, because we would agree to them in a fair decision procedure. Rawls's theory distinguishes two kinds of goods – (1) the good of liberty rights and (2) social and economic goods, i.e. wealth, income and power – and applies different distributions to them – equality between citizens for (1), equality unless inequality improves the position of the worst off for (2). In one sense, theories of distributive justice may assert that everyone should get what they deserve. Theories vary on

4087-431: The redistribution of resources that he advocates. Law raises important and complex issues about equality, fairness, and justice. There is an old saying that ' All are equal before the law '. The belief in equality before the law is called legal egalitarianism. In criticism of this belief, the author Anatole France said in 1894, "In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in

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4154-417: The streets, and steal loaves of bread." With this saying, France illustrated the fundamental shortcoming of a theory of legal equality that remains blind to social inequality; the same law applied to all may have disproportionately harmful effects on the least powerful. According to meritocratic theories, goods, especially wealth and social status , should be distributed to match individual merit , which

4221-478: The theory assert that God must be obeyed because of the nature of God's relationship with humanity, others assert that God must be obeyed because God is goodness itself, and thus doing God's command would be best for everyone. An early meditation on the divine command theory by Plato can be found in his dialogue, Euthyphro . Called the Euthyphro dilemma , it goes as follows: "Is what is morally good commanded by

4288-457: The underlying principles in a single and determinate system that could be applied mechanically—from which the term "mechanical jurisprudence " comes. The antithesis of formalism is legal realism , which has been said to be "[p]erhaps the most pervasive and accepted theory of how judges arrive at legal decisions." This descriptive conception of "legal formalism" can be extended to a normative theory, which holds that judges should decide cases by

4355-444: The utilitarian, justice is the maximization of the total or average welfare across all relevant individuals. Utilitarianism fights crime in three ways: So, the reason for punishment is the maximization of welfare, and punishment should be of whomever, and of whatever form and severity, are needed to meet that goal. This may sometimes justify punishing the innocent, or inflicting disproportionately severe punishments, when that will have

4422-425: The world (i.e. transactions where someone is made worse off). The result is that the world will have generated the greatest total benefit from the limited, scarce resources available in the world. Further, this will have been accomplished without taking anything away from anyone unlawfully. Equality before the law is one of the basic principles of classical liberalism . Classical liberalism calls for equality before

4489-543: Was noted for his formalist views about a variety of topics, particularly his view that the United States Constitution should be interpreted in accord with its original meaning and his view that statutes should be read in accord with their plain meaning . In A Matter of Interpretation , Scalia defended textualism – and, by extension, formalism – saying: Scalia's strongest claim on formalist credentials can be found in his essay, The Rule of Law as

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