What happened to Justice?

26 de agosto de 2017

In the past while, I have experienced confusion when bringing up the concept of justice to my fellow law students.  While it seemed like a bit of a stretch, I thought that perhaps justice lived at the very heart of law.  The confusion came when I started to note two ideas:  (1) justice is not a necessary element of law and (2) justice already has been defined by the law.  I suppose this ought to be where I define justice.  For me personally, I define justice as a way to express values and power.  Some have defined it as a concept of morality and ethics.  Perhaps it is all of these things.  Truthfully, I have no idea how to define it and don’t know if it can be defined, but I think the process of defining it deserves a bit of attention, if not the main focus of attention, of our legal educations.

Perhaps, you may find this a bit funny.  I am a law student, and I think law and justice go together.  What an idiot, right?  Everyone knows that law and justice go together and that law schools teach law students about justice.  I don’t disagree.  The problem is, I struggle to come to terms with the way justice has been incorporated into my legal education, and I am concerned that the majority of my classes and classmates rarely question its definition.

I’ve started to notice a common theme:  ”Justice is not a requirement in law school, just an add-on”.  Or, alternatively, as students, we learn to believe in the neutral hand of justice, that we are unbiased parties learning to be a part of that neutral hand.  Surely, the legal system may have its systematic flaws just as every system does, but our process of analyzing cases does not.  As students we learn that we are neutral.  We are like legal scientists.

However, is our education and the way we analyze cases neutral and unbiased?  How often do we stop to think about the process?

For example, what do we do when we condense a case down to its issue, reasoning, analysis, and conclusion – fondly known as the system of “IRAC” or perhaps to some “CRAC (conclusion, reasoning, analysis, conclusion)”?  Should there be an “E” tacked onto the end of that equation which asks us to consider, was the process equitable?  Should there by a “J” tacked onto the end which asks us to consider, was the outcome just?  Will what we think is equitable and just change if we start putting in the “W” which asks us to consider the who, what, where, and why beyond just the names of the parties involved?  Does it matter who is representing and presiding?  Does it matter who is funding, lobbying, and electing?

J.T. Noonan’s examination of our beloved first year Palsgraf case, provides insights into our “neutral” and “unbiased” process of deciding tort law in ways that I am not qualified to attempt to summarize.  (Check out John T. Noonan, “The Passengers of  Palsgraf,” in Persons and Masks of the Law).  What worries me the most is considering whether I ever would have questioned the Palsgraf case and our “neutral” methodology of analysis had I not accidentally signed up for a class which provided Noonan’s piece as a required reading.

I have to wonder if this facade of neutrality shapes the way we view the relationship of law and justice in our legal education.  Once, when brainstorming ideas with a fellow student on how to raise interest in social justice at the law school through curriculum change, I was stumped by what seemed to me at the time to be a valid and irrefutable argument:  ”Law schools do not have the right to impose value (social justice) onto its students”.  Luckily, a professor helped me out on this one, noting that if not social justice, then we must ask, what values do law schools impose on its students and why?

In another instance, when I asked a different fellow student whether he found it strange that justice did not sit at the center of most of our classes, he pointed to the required Professional Responsibility course as evidence of law school’s inclusion of justice and ethics into our education.  True, I said and thought, but why only one course?  He nodded and agreed that it seemed a bit strange, but as usual, we both shrugged – “c’est la vie”.  Apathy.

Perhaps, we, as students ought to be discussing justice – what it means to us, how it fits into our legal education, and what it ought to mean.  Our concept of justice shapes and is shaped by our thoughts, words, actions, and education.  Our legal education shapes the way we view humanity, and it imposes values onto us even if we think we are learning a “neutral” and “scientific” methodology for analyzing cases and the law.   I do not think we should assume that “equitable” has nothing to do with winning or losing a negotiation or that “zealous advocacy” erases the obligation to consider what would be just.  Justice should not play second fiddle throughout our law school education, and it should not be a second class citizen in the law school curriculum, relegated to one required course.

When questions of justice are constantly removed from the study of law, we as students begin to separate law from humanity, and we lose a bit of our own humanity along the way.  I do not claim here to be an expert or a model but just an individual with a thought and a voice of concern.

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