Mao raises an interesting issue in the appearance of justice versus actual justice itself. Perhaps one further aspect to consider is that the appearance of justice is merely one aspect of the process towards seeking that real truth itself. If the system itself cannot even furnish an appearance of justice, then what confidence is there for individuals within that system to even try and seek that real form of justice? While what Mao raises is a very fair diagnosis about the present state of affairs--indeed, the shadowing of real truth for the appearance of truth--perhaps we need to be thinking more about how the appearance and actual justice can come together. Efficiency in the system is perhaps a necessary means of enabling actual justice to form. The real issue at stake is how we can harness the preoccupation with appearances to derive meaningful justice.
Mao presents a mishmash of poorly considered ideas. Firstly, the idea that science seeks objective truth where law does not is grounded in a reverence for scientific work that doesn't hold up to scrutiny. Insofar as measurements and data are imperfect, scientists make models and predictions that carry great deals of uncertainty, and furthermore, it's not entirely clear from an epistemological standpoint whether we can know anything to a certainty (we probably can't). Mao then takes a simplistic and juvenile view of the world, in which there are two groups of ideas: one of which are somehow "objective" unifying ideas like "liberty and justice", and the other which are ideas created by people to oppress others. Which ideas, and in fact, which types of expressions of ideas constitute the latter vs. the former, is of course, decided by Mao in the dichotomy that she has created. In reality, of course, ideas are all abstract, can all be weaponized, and can all fit into narratives. Mao also fails to create a system worthy of consideration. Scalia doesn't mention justice in Crawford (instead relying on history and dictionaries), she says, and therefore it's a lazy decision. Further, courts err by not seeking justice generally, and should "face grave consequences". What these consequences would be and from whom they would come is conveniently omitted. In fact, what kind of system she proposes is not clear -- though it is clear that she disregards the utilitarian impact of a system in which vague notions of justice control the actions of the judiciary entirely -- for each judge has a competing notion of justice. This is simple poor system design, it ignores the intent of a system in which judges make decision that are even only nominally based on legal principles.
@Earth I agree that some science lacks the "truth" aspect in what it can achieve, but I think the difference remains the "goal". Law doesn't always seek truth above other values, like consistency and what is most reasonable or practicable, instead of the "best" outcome. I agree that the system is unworkable and draws too arbitrary a brightline, but I think the legal profession's ideal is no longer clearly the search for truth and justice (I think synonymously), while science maintains that goal, though perhaps that's just my view of the rise in partisanship entering my view of the field, given the way judge confirmations have seemed more partisan in recent years. (Hope the tag works)
Regarding Lantea's comment, what is also interesting is where there is a collision between the appearance of justice and true justice. For an example, when a defendant who otherwise seems certainly guilty is let off because the evidence against him was obtained unconstitutionally. To some it viscerally appears unjust to see an actually guilty person go free for any reason; however, others could argue that true justice is only served by upholding fairness values such as those within the constitution's protections for criminal defendants. Thus, there can exist a conflict between the appearance of justice and what can be considered actual justice. In such cases, it seems as if at least in the United States we have accepted that sometimes things must appear unjust in order to further overall justice. However, the appearance of injustice does its own unique harm in that it causes people to lose faith in the justice system.
@Uranus Absolutely agree. The Mao essay gets at the idea that the balance between the different forces you pointed out is messy. I think one aspect we should dive more into is how that collision can be better resolved. Certainly, the appearance of injustice in the system, I think, has led to an increasing rejection of the system itself wholesale, and that, I fear, could do the greater hard.
The questions posed by Stella Mao in her paper are interesting, but I would disagree with the assumption that there is no solid, real, Truth, in Law. Or that this truth is merely a collective representation of collective aspirations, such as "liberty" or "justice". For instance, using her example of the Revolutionary period, does that mean that there was one Truth for the colonists and one other Truth for the Crown, in the legal sense? Rather, both sides thought they were fighting for the "natural rights of Englishmen", and merely interpreted what they believed differently. But there was an is an absolute Truth in the Law.
i guess for me it's an even larger question of what justice actually is and if it exists. it seems to me that justice is purely in the eye of the beholder. while convicting someone of murder, for example, and sentencing them to death would be "justice" for some, sending that person to jail for life would be justice for another, while sending that person to receive true psychiatric, emotional, and mental help would be justice for another, and mob justice would be justice for another. how can we achieve justice if we don't even know what justice is? i agree that attorneys, and judges in particular, have a problem of myopia and looking too closely at narrow legal issues/standards that they lose the larger picture, oftentimes with a clearly unjust result. but in terms of achieving "justice," i'm not sure what the best alternative is. who gets to define what justice is? how does that play out in a society already built on oppression? is it the best for the individual harmed, the best for the perpetrator, or the best for society? attempting to create a definition of something so subjective is nearly impossible.
I think what I find most problematic about Stella Mao's paper is that it presupposes there's a "collective sense of justice" shared by all. While this might be true on an extremely abstract level, the way that justice is envisioned and interpreted differs from group to group, individual to individual. To posit that a society should be subordinate to a collective sense of justice and to propose that judges face grave consequences for their failure to conform to that standard is to privilege the majority at the expense of all minorities. Many of the cases we identify today as moments where justice triumphed, especially in the context of civil rights, started out as unpopular minority positions. If we follow Mao’s proposition and relied on the collective will of the people to dictate our legal system, can we continue to make such progress in the future? And at what cost? What recourse is there for minorities when the majority’s conception of justice is skewed by prejudice?
Two points-- first to @Vattweir's point I totally agree. It does seem that what counts as "justice" can often be met with competing definitions and ideal outcomes. I think in the American system the intent was for this to be decided by a jury-- a connection to our class that I look forward to making. The idea that a group of one's peers decides what "justice" means perhaps is the larger definition that Mao's paper is contemplating, rather than the definition in any one case. I think often the perception of process and the enforcement of fair process is what justice can look like in many cases. However, and to my second point, I think that to @Lantea's and @Uranus's discussion, I also think that the appearance of justice-- what satsifies and makes Mao comfortable in the end-- can also be harmful. What happens when half the country sees injustice in the system and half the country sees justice in the system? The perhaps "true" injustice becomes harder to change because of those who are made comfortable by the very existence of a justice "ideal"-- regardless of how injust the system was built to be.
Five questions that I'd like to pose on the basis of Mao's thought-provoking essay: (1) Are scientific truths any less contestable than moral-legal truths? If we define the "truth" of science as simply what can be replicated in an experiment, do we not overlook the deeper "truth" of the science, in the sense of its fundamental conceptions -- the axioms on which the science is based and the experiment constructed? Are the axioms of any given science any less contestable than moral-legal claims? Is there a sense in which scientific axioms are inherently moral? (2) Does it make sense to characterize justice as an "abstract" idea? Is there not a sense in which justice is more concrete than the things we can see and touch? Here I am considering justice as invoked in the everyday justification of one's actions (3) Is law a tool to implement justice antecedently defined? Or does legislation participate in constituting the meaning of justice? (4) What is the relation of justice, and morality in general, to history? Can the meaning of justice be derived in an ahistorical manner? (5) To what extent should the jury play a larger role in our legal system? Is it better to have judges (legal experts), or juries, decide cases? Does the jury represent democracy at the expense of truth? Or is a jury of citizens better equipped to judge well than a judge?
I do not necessarily agree with Mao’s claim that the jury should play a larger role in the legal world. Ideally, a jury should “represent the collective intuitions of justice” but I wonder if this is actually the case. Here are some questions that come to mind. Does the prosecutor's/defense counsel’s ability to carefully select their jurors make it less likely or impossible for the jury to actually represent the collective intuitions of justice? If jury verdicts are sometimes the result of no longer wanting to deliberate or peer pressure, how do we reconcile this with the idea that the jury (and its verdicts) represent collective intuitions? If the jury does in fact represent the collective intuitions of justice, shouldn’t we require the jury to explain its decision so that we can start to better understand what this collective intuition is?
Simplistic assertions aside, there is a wisdom to Mao’s assertion that there exists
“collective intuitions of justice”. Certainly our representational democracy posits that the people, by virtue of representation’s responsiveness, hold actors accountable to our beliefs and values. Of course, these values are far from uniform, but in the localized context of jury selection we can advance community priorities and notions about accountability, responsibility and justice.
To build off of the comments of some of my peers, I feel Mao's paper begins a discussion on the ambiguity of the meaning of truth, but fails to delve into the sources of this ambiguity and how law relates to/creates/perpetuates this ambiguity in order to preserve power and maintain longstanding socio-economic, gender, and racial hierarchies. It can very easily be said that there is no clear definition of "truth", "justice", or whatever force it is that drives our legal system; however, what remains true is there is some driving force at work, and unless we do more work understanding what those forces are and who benefits from the current legal system, we will only be engaging in meaningless debate. While I do not in any way mean to attack Mao's work, I believe that her questions necessarily press us to address these deeper inquiries, especially given that our society is plagues with many inequalities that directly create harm to several populations.