Tuesday, November 22, 2011
Josh Bowers (University of Virginia School of Law, pictured) and Paul H. Robinson (University of Pennsylvania Law School) have posted Perceptions of Fairness and Justice: The Shared Aims & Occasional Conflicts of Legitimacy and Moral Credibility on 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.