Justice versus Legality
Shortly after the fall of the Berlin wall and the beginning of East German unification with West Germany, a politician from the East was heard to say, "We wanted justice and we got the rule of law." The disappointment was understandable. Justice has the appeal of knowing what is right and securing it immediately. Justice offers instant gratification. The rule of law requires time, patience, and procedures of high ritual. Justice stands to the rule of law as fast food hamburgers compare with an eight-course meal.
The claims of justice come and go. A new party is in power and heads roll. One of Shakespeare's characters even quips, "The first thing we will do is kill all the lawyers." Justice carries all the promise and the risks of a passionate love affair: the rule of law offers the stability of a loyal marriage.
The rule of law evens out the risks of injustice over time. The law accomplishes this goal by insisting on careful procedures, hearing both sides of the argument, suppressing unreliable and inflammatory evidence, and, at least in the common law systems, decentralizing power among judges, lawyers, and juries.
Concentrating power in the hands of the judge makes it easier to convict and therefore increases the risk of a false conviction. The decentralized procedures of the common law are more likely to produce the injustice of false acquittals. Examples of arguably false acquittals have made headlines over the last decade. Just think of the not guilty
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Publication information: Book title: Basic Concepts of Criminal Law. Contributors: George P. Fletcher - Author. Publisher: Oxford University Press. Place of publication: New York. Publication year: 1998. Page number: 206.
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