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November 25, 2011

"Perceptions of Fairness and Justice: The Shared Aims & Occasional Conflicts of Legitimacy and Moral Credibility"

The title of this post is the title of this new paper by Professors Josh Bowers and Paul Robinson, which is available via SSRN. Here is the abstract:

A growing literature on procedural fairness suggests that there is practical value in enhancing a criminal justice system's "legitimacy" with the community it governs by adopting and implementing fair enforcement practices and adjudicative procedures.  A separate literature suggests that there is practical value in enhancing the system's "moral credibility" with the community by distributing criminal liability and punishment according to principles that track the community's shared intuitions of justice.

In this Article, we examine the shared aims and the similarities in the operation and effect of these two criminal justice dynamics as well as the occasional differences in effect and potential for conflict.  By comparing the two dynamics, the article moves forward debates that -- though rich and important -- have grown stagnant.  Specifically, legal scholars have tended to invoke the two dynamics too casually, to ignore one but not the other, or to conflate or confuse the two.  This article provides a useful and necessary analytic framework for further exploration into the advantages and limits of moral credibility and legitimacy.  Finally, the article stakes out tentative positions within the on-going debates.  That is, it endorses the prevailing view that moral credibility and legitimacy are promising -- indeed, critical -- systemic enterprises that may carry significant crime-control advantages, and the article concludes that -- for empirical and theoretic reasons -- moral credibility ought to be the principal objective in uncommon circumstances in which a system may effectively pursue only one.

November 25, 2011 at 10:42 AM | Permalink


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As a student it is interesting to see how the law and the understanding of law changes. There will always be new laws and new interpretations of the law.

Posted by: Rose | Nov 25, 2011 4:04:41 PM

People naturally think about problems in two different ways; an intuitive mode and reasoned mode of cognitive functioning that probably reflect the history of evolution. Cognitive scientists refer to them as System 1 and System 2. System 1 sometimes produces biased results. System 2 monitors System 1 and makes necessary corrections. This duel process theory of cognition is perhaps the most important advance in the cognitive sciences over the last thirty years.

Its too bad that this paper does not capitalize on this theory, and particularly the insights it provides about heuristics.

Posted by: Tom McGee | Nov 25, 2011 6:51:35 PM

The sole legitimacy of the legal system in total failure is at the point of a gun. Army Airborne will show up to persuade anyone questioning the decisions of the know nothing buffoons on the bench.

The Rule of Law is an essential utility product, as important as electricity and water. Shut it off, you have Fallujah, spending all one's time on personal security and survival. Right now, if the Rule of Law were electricity, it would be on two hours a day for the rich, with appliance destroying surges of excessive law. For the poor, it is on 2 minutes a day, totally randomly. Nearly worthless. Its sole success in in lawyer rent seeking, a synonym for armed robbery.

Posted by: Supremacy Claus | Nov 25, 2011 9:20:01 PM

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