anotherlongshot (anotherlongshot) wrote,

formal justice. my babblings. incoherent and crap.

Initially (i.e. before reading the prescibed readings that should've been read months ago), the first phrase that comes to mind when I think of formal justice is: A Crock of Shit.

Because it seems really stupid to say that it's morally wrong for judges and officials to deviate from the law, even if the laws are unjust. Take the example of a racially discriminatory law: If the law in Racist Like Hell Country is that people of skin colour Lime Green will be sentenced to death if they are seen on the streets, the horrendous consequences of a judge adhering to such a manifestly unjust law are obvious. I thought, what the hell were these formalists smoking? How can you make someone rule in favour of an unjust law that will lead to gross injustice?

Having read a few pages of David Lyons' article in the Cornell Law Review, however, I'm kind of inclined to take back what I said. I've only read six pages because I'm always distracted by other things but anyway, so far, it seems like formal justice advocates that officials should always stick to the laws to prevent people from being treated unfairly if judges had the freedom to apply their own standards. Like, if the law says that all citizens of Country X must be treated equally, the judge cannot mete out different standards of punishment to two criminals who committed the exact same crime on the basis that the person given the harsher sentence is, for example, fat, bald, or of a different race. You know what I mean?

As for the sticky issue of racially-discriminatory laws, I'm attempting to wank this a bit here. I think the injustice of not administering the racist law in Racist Like Hell Country equally across the board to every Lime Green person is that one judge may feel that it's morally reprehensible to impose this law and so he decides to acquit the Lime Green fella, BUT another judge, a cynical positivist like Hart (whom I keep referring to as Austin Hart - what the hell) may adhere strictly to the unjust law anyway because he feels that it's his duty and that law has no connection with morality. So the result of this uneven administration of the same law is that one person goes free while the other is sentenced to death, both of whom committed the same crime of being born Lime Green. Therein lies the injustice.

I think.

At some level though I still maintain that such retarded laws should not be followed. Lyons wrote some stuff about how formalists apply a different standard of justice and only look at the administration of law and not the content of law, but I don't get what this has anything to do with anything so I'm still quite confused.

It's damn scary that I don't bloody remember anything. Why the hell is the exam bloody closed book. Dammit. Hart is also a cynical...person (euphemism for another, more explicit word I had in mind). I was trying to digest his minimum content of natural law and the only thing I got out of it was that he thinks that the point of intersection between law and morality is the maxim, Thou shalt not kill. But not because it's morally wrong or anything, Hart thinks. He thinks that this rule exists because men are mutually vulnerable and so to survive they need a rule telling them not to kill each other.

Yeah, something like that. I don't know man. His thesis seemed a bit more applicable to Stone Age people running around in loin cloths though, than, well, the 21st Century. After we've gone past the whole We Must Survive At All Cost! thing, after we've attained some level of comfort, I think it's equally intrinsic for human beings to look for something more. And so I think most people don't kill each other because they think it's wrong, and not so much because of the threat of the death penalty in uncivilised countries like Singapore and the threat of life imprisonment is less-uncivilised countries like the ones in Europe.

I just thought of something else regarding the stuff I wrote about formal justice. Maybe there's no injustice done in the case of two different outcomes for violating the same racist law in Racist Like Hell Country. Maybe there's actually JUSTICE done instead by the judge who deviated from the law, because he saved one person from being unreasonably and unjustly sent to his death.

But eh, what about the other person, then? Ugh. I don't know.

But who really cares anyway.

Well, I need to go back to reading. I read a grand total of six pages the entire day. Go me, end sarcasm.

Tags: law school, philosophy

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