Basic Concepts of Criminal Law

By George P. Fletcher | Go to book overview

12
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

-206-

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Basic Concepts of Criminal Law
Table of contents

Table of contents

  • Title Page iii
  • Acknowledgments vii
  • Contents ix
  • Introduction 3
  • 1 - Substance Versus Procedure 7
  • Notes 23
  • 2 - Punishment Versus Treatment 25
  • Notes 40
  • 3 - Subject Versus Object 43
  • Notes 56
  • 4 - Human Causes Versus Natural Events 59
  • Notes 72
  • 5 - The Crime Versus the Offender 74
  • 6 - Offenses Versus Defenses 93
  • Notes 108
  • 7 - Intention Versus Negligence 111
  • 8 - Self-Defense Versus Necessity 130
  • Notes 145
  • 9 - Relevant Versus Irrelevant Mistakes 148
  • Notes 167
  • 10 - Attempts Versus Completed Offenses 171
  • Notes 184
  • 11 - Perpetration Versus Complicity 188
  • Notes 203
  • 12 - Justice Versus Legality 206
  • Notes 213
  • Index 215
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