Sep. 1, 2023
The definition of justice
Once upon a time, we all believed that Judges could always be impartial, but we have since learned that we (like all humans) are the bundle of our education, experience, biases and prejudices – many of which are subliminal and subconscious.
By nature, I am a rather practical person. I am an organizer, moving the ball from Point A to Point B. As between the “journey” and the “goal,” I’m all about the goal, not so much the trip to it. That’s how I have rolled in my entire professional life as an attorney, in government service, and as a Judge. That’s why it was a bit of a surprise to me that my favorite class back in Law School was “Jurisprudence” – the study of the philosophy and theory of law.
In the daily Sturm und Drang of running a courtroom, I must confess that there’s not a lot of time or space to dwell on the philosophy and theory of law. But recently, I ran across an article from Cornell University Law School that took me back to my days in the Jurisprudence classroom. I was having a pleasant conversation with myself and thought to delve into the definition of the word “justice.” The definition from Cornell was the following: “Justice is the ethical, philosophical idea that people are to be treated impartially, fairly, properly, and reasonably by the law and by arbiters of the law, that laws are to ensure that no harm befalls another, and that when harm is alleged a remedial action is taken – both the accuser and the accused receive a morally right consequence merited by their actions.”
There is certainly a lot to unpack in this definition, and in many ways, it appears to have been written by a committee. If this were mathematics, it would be easy to define “justice” because numbers are precise. But this is not math, and words tend to be imprecise and subject to nuances and interpretations. What do we really mean when we say “impartially” or “fairly” or “properly” or “reasonably?” Once upon a time, we all believed that Judges could always be impartial, but we have since learned that we (like all humans) are the bundle of our education, experience, biases and prejudices – many of which are subliminal and subconscious. What is “fair” or “proper” or “reasonable” to you may be rather different to what those words mean to me. And what about concepts such as “respect?”
As Judges, we are far from perfect. Yet, we were entrusted (by the Governor and/or the voters in our respective jurisdictions) to be the best available humans for the job of judging. We may not always be able to precisely define our terms, but as we define them, we can strive to be impartial and fair, and to treat people before us properly and reasonably.
The ultimate historical Judge was King Solomon who, in the famous fable (and in the days before DNA evidence), was faced with a tough choice. Two mothers living in the same house and each of them had been the mother of an infant son. One of the babies had been smothered at birth, and each claimed the remaining boy as her own. Calling for a sword, Solomon declared his judgment: The baby would be cut in two, and each woman would receive half. The first woman accepted the compromise as fair, but the second woman begged Solomon to give the baby to her rival, preferring that the baby live even without her. Solomon then ordered the baby given to the second woman, who he determined was the real mother based on her selfless expression of love.
An appropriate result as it turned out. But what if both women had said, “We accept your compromise, O King” …