On Justice

By Frederik de Raat & Tess Spronk

Nowadays, we are completely used to the legal system as it exists in most Western countries, and we have a strong vision about what is a just system and what is not. The legal system as developed by the humanitas, which consists of codified laws, formal courts and prisons, is often also perceived as being a superior system as opposed to alternative systems, such as Sharia Law. The system of Sharia Law is believed to be incompatible with certain (Western) values, such as democracy and human rights. Rights like freedom of speech, the right to practice your own religion without fear of prosecution and the possibility to engage in same-sex relationships are repressed under Sharia Law instead of ensured. Moreover, Sharia Law is perceived to be discriminatory against women as it places high moral expectations on how women should act and dress. Most definitions of justice imply that the concept is based on two components, morals and fair/equal treatment. In this essay we will show how, through these two elements, it may be asserted that the claim on superiority of the Western system is indefensible.

When looking at definitions of justice, it appears to consist of two components. First of all, it is seen as a concept of ‘moral rightness’.[1] Secondly, it implies a ‘proper administration of the law’ and a ‘fair and equitable treatment of individuals under the law’.[2] The first component of justice is very important since it claims that the concept of justice is based on the morals of a society, and these morals may be different for each society. Moreover, morals change, and our perception of justice is fluid. This can be seen very clearly when looking at spousal rape. In the past, women were regarded as second-class citizens in the West. As criminalization of spousal rape did not benefit men, it was only in 1993 that all states in the US implemented a legal sanction to prevent spousal rape.[3] When keeping in mind the fluidity and locality of justice, it could be seen as unfair to judge the law of the perceived anthropos as unjust. Although many aspects of Sharia Law do not comply with Western morality, the same claim could be made the other way around. From the perception of Muslim societies, the Western system of law seems negligent and not sufficient to protect society from perceived evils, and thus it does not guard the morals they find important.

The concept of justice should not be perceived as being universal, but as a matter of locality.[4] Therefore, a claim that a certain legal system is unjust is invalid. Still, there is a growing movement in the world that attempts to implement international law, which appears to embody the Western interpretation of justice. It could be considered unfair to judge non-Western societies through Western values and even in the West unfair treatment may be prevalent, as the next section will show.

The way the Western system of justice works can be brought down to this: crime equals punishment. In the field of criminal law, this causes issues in conviction, punishment and effects. With regards to conviction, the suspect goes to court and tries to convince the judge or jury of his or her innocence while the accuser tries to do the opposite. You could say that one’s guilt can be measured by the ability of the suspect to convince the judge or jury in relation to the same ability of the accuser. This is how guilt is measured in the Western system of justice: it is a matter of legal defense. This means that the better someone can defend his- or her case in court, the bigger the chance is he or she will be declared innocent or the opposing party will be declared guilty. This skews the justice system gravely because the best defense is also the most expensive, meaning that those who have less capital are more prone to be the losing party in any legal dispute. Also, one has to keep in mind that all judges and members of the jury –as well as officers on the street– are human beings which means they are not objective; Schmitt found that “[a]t virtually every stage of pretrial negotiation, whites are more successful than non-whites”.[5][6] This illustrates how both ethnicity and economic background can be of influence for one’s prospects in the judiciary system and furthermore that the claim of objectivity and thus the claim of superiority is false.

After one is proven to be guilty, a punishment may follow. The two most common punishments in the Western justice system are monetary fines and prison sentences. With punishment in fines the same issue arises as with legal defense. The more capital you have at your disposal the less you will be influenced by a set financial punishment. As long as these punishments are fixed at a certain price, as they are in most countries,[7] the punishment will be more severe for those of the lower economic class than for those of the higher economical class. This is an issue of the acceptance of differences where equal treatment is detrimental for justice. The same cannot be said for prison sentences but with this type of convictions the suspect can be the subject again of racial, ethnic and economic discrimination in terms of the length and type of sentence.

After the punishment, the question arises which effect punishing has on the convicts. Ultimately, it should be to prevent them from committing crimes in the future. Even though the US does not comprise the West on its own and statistics obtained there cannot be generalized to other Western countries, the statistics of this governmental study are too compelling to ignore: “Within 3 years from their release in 1994[,] 67.5% of the prisoners were rearrested for a new offense (almost exclusively a felony or a serious misdemeanor)”.[8] This illustrates the incapability of this system to solve the problems in society that cause crime. Punishment -at least in this form- is not a durable solution to criminality because it addresses the effects rather than the causes.

So in conclusion, Western law is not per definition superior, as justice is based on morals which are specific to different societies and cultures. The concept of justice is fluid and defined locally and when talking about it, this locality needs to be acknowledged. Moreover, the system as it is used in most Western countries has imperfections and some elements of it could be perceived to be unequal and unfair. Both points support the idea that the claim of superiority of the Western legal system is not defensible.

Sources used:

[1] Hill, G. N., Hill, K. T. (2002). The People’s Law Dictionary. MJF: New York.

[2] Lehman, J., Phelps, S. (2005). Wests Encyclopedia of American Law. West Publishing: Minneapolis.

[3] Bergen, R. K. (1996). Wife Rape: Understanding The responses of Survivors and service Providers. Thousand Oaks, CA: Sage

[4] Mignolo, W. (2011). The Darker Side of Western Modernity. Duke University Press: Durham.

[5] Christopher H. Schmitt (1991) Plea Bargaining Favors Whites as Blacks, Hispanics Pay Price, San Jose Mercury news, Dec. 8, 1991, at 1A.

[6] Gaynes, E. A. (1992). Urban Criminal Justice System: Where Young+ Black+ Male= Probable Cause, The. Fordham Urb. LJ, 20, 621.

[7] Finland is the only country in which progressive fines are enforced. Stecklow, S. (2001) Finnish Drivers Don’t Mind Sliding Scale, But Instant Calculation Gets Low Marks. The Wall Street Journal. Jan. 2, 2001. URL: http://online.wsj.com/news/articles/SB978398058976592586

[8] US. Department of Justice Statistics. Recidivism of Prisoners Released in 1994. By: Patrick A. Langan, Ph.D. David J. Levin, Ph.D. Available at:  http://www.bjs.gov/content/pub/pdf/rpr94.pdf. Accessed: 18-11-2013