Legal Injustice in American Justice - Essay Example

?Most instances of legal injustice occupy an uneasy space in the American judicial history and, more frequently than thought, resemble Kafkaesque situations in which jurisprudence is administered randomly and illegitimately, where the search for law reveals nothing but meaningless rhetoric and involves an endlessly petty bureaucratic process (Litowitz 114) In the United States history, there have been a number of 311 exonerations through post-conviction DNA testing and there is no evidence that the system is attempting to right itself. Issues like racial and socioeconomic discrimination, eyewitness misidentification, improper or unreliable forensic science and incompetent defense counsel continue to afflict our judicial system and the latest statistics provided by the Innocence Project (e.g. 18 people had been sentenced to death prior to their DNA exoneration / release, the average sentence length served by exonerated individuals has been 13.6 years and approximately 70% of those who have been exonerated through DNA testing are people of color) point to the fact that our system is still far from being unerring. What Amy Bach found startling was that many of the legal professionals / lawyers involved were not aware of their roles in perpetuating bad conduct, or of how their behaviors were connected to the worst outcomes in courts. She concludes that ordinary injustice happens in a “blind spot” (Bach), when a community of professionals becomes so used to a pattern of errors that they stop seeing their roles in them. As for the question of how to create generations of individuals who stand up for humanity and human rights, she believes that the process should start in law schools across the country where people begin discussing with students about why these injustices continue to exist in America and what we can do about them (Bach). Some law theorists, such as Schlag (186-188), think that the main purpose of normative legal thought is to add semiotics, epistemology or social theory to its crystallized ethical-moral structure about what is right, efficient and good to do, by continuously repeating itself. It constitutes, therefore, an automated routine so deeply internalized and entrenched into our cognitive matrix that it creates our thoughts and keeps our work within the same rhetorical frameworks. Far from being a normative enterprise aiming to improve the political, economic performance of the courts or the legal profession in general, legal advocates do not realize that normative thought is a self-referential economy consisting of rhetorical structures that are manipulated from elsewhere, a bureaucratic tool for the of a certain type of discursive that is compatible with the practice of bureaucracy and “institutional inertia” (Schlag 186). Moreover, the normative appeal of normative thought impedes legal practitioners to recognize the fact that it is based on an unrealistic representation of the field it regulates. Instead of assisting a deeper understanding of current moral and political situations, it re-inscribes its own unbelievable representation of the moral / political scene. Normative thought will continue to be irresponsible until it begins to address its own paradoxical rhetorical structure which is populated by individuals who are the manipulated results of the system’s bureaucratic practices7 (Schlag 188-191) The law’s attitude towards the world is not curious, open to discovery or based on genuine intellectual enterprise because, at the heart of the discipline of law, there is a great deal of violence (Schlag 2060-61). For many legal practitioners, law has become an idolatrous self-serving, self-deceiving mechanism (Campos 284-300), whose violence is hidden deep inside. It is, perhaps, inherent to our current nature to pretend that our reality does not generate disturbing instances where the judicial system is impotent or, simply, inefficient. Disconnected and unwilling to commit to the reconciliation between our beliefs and reality, we have become, legal scholar Bryan Stevenson (“We need to talk about an injustice”) suggests, comfortable with problems we believe are not our problems. Herbert Marcuse (95-137) hypothesized that, even when protests do take place, it is the whole that decides the truth, in the sense that its very function and constitution determine concrete conditions and connections. Not far from our current reality, Marcuse described a repressive society in which progressive movements (like protest-demonstrations, letter-writing to the media) serve to re-enforce the status-quo by testifying to the fact that it contains the guarantee of democratic liberties—in this situation, freedom becomes an instrument for servitude. Minorities striving for a change will find themselves helpless, faced with a passive majority that is conditioned to be against qualitative social change and is, therefore, placed on the side of the oppressors. Ethical misconduct regulation may be expensive, as officials frequently say, but it certainly is necessary. Shaklars (1-30) identified a variety of similarities between injustice and ethical misconduct, one of them being the manner in which people affected by them react: with hopelessness and self-blame. The public, the collective victim of ethical misconduct, tell themselves that officials are corrupt and give up, because of their conviction that there is nothing they can do about it. The public reaction may manifest itself as anger, but it is more of a muted passive cynicism, “a shrug not a scream” (McGuire). Another reason for this might be the fact that the normative instrumentalization of foreign disciplines that contribute to law destroys the perceptual and intellectual abilities through which one might make sense of the law. At the individual level, the capacity to think in a diversity of cognitive and interpretive ways is destroyed (Schlag 2061-63). The result is individuals’ “passive injustice” (Shklar 6) which takes the form of private citizens’ and officials’ refusal to prevent or stop private and public acts of injustice—from not reporting minor crimes to large-scale political corruption. It is imperative that we adopt a more challenging identity based on being active witnesses of unfairness, poverty and exclusion. To evolve as a species we must pay attention not only to the bright and exciting advances of technology, but also to the dark and painful aspects of our realities, because, in the end, “our humanity depends on everyone’s humanity”(Stevenson, “We need to talk about an injustice”). Our accomplishments and advances in other areas will stop being tainted by the inequalities and unfairness in our system the moment we challenge injustice (Stevenson, “Why are millions of Americans locked up?”). Additionally, it is important to work towards substantial solutions, like reform, rehabilitation, a comprehensive ethics program, as alternatives for mass incarcerations and speak up about an often unreliable system with a high error rate and lacking in solid compensation plans, in spite of our conditioning to ignore these matters. In the end, to ignore injustice is to become its accomplice and, in a world where basic human dignity is infinitely valuable, the opposite of poverty is not wealth, but justice (Stevenson, “We need to talk about an injustice”). Works cited Bach, Amy. “The Problem of Ordinary Injustice: Reporting on an Ongoing Systemic Problem”. A conversation with Amy Bach. The Institute for the Study of the Judiciary, Politics, and the Media at Syracuse University, 2010. Web. 1 Dec, 2013. Campos, Paul. "Against Constitutional Theory". Yale JL & Human. 4. 1992. Web. 1 Dec 2013. Innocence Project.2013. 1 Dec 2013 http://www.innocenceproject.org/ Litowitz, David. “Franz Kafka's Outsider Jurisprudence". Law & Social Inquiry 27.1. 2002. Web 30 Nov 2013 McGuire, Patricia. “District of Disgrace”. Huffington Post. 6 Jul 12. Web. 1 Dec 2013 Schlag, Pierre. “Normative and nowhere to go". Stanford Law Review, 1990. Web. 29 Nov 2013. Schlag, Pierre. “Clerks in the Maze”. Michigan Law Review 91:8 (1993): 2060-61. JSTOR. PDF file. Shklar, Judith.“The faces of injustice”. New Haven, CT: Yale University Press. 1990. Print. Stevenson, Bryan. “We need to talk about an injustice”. Transcript of the lecture. TEDTalks, 2012. Web. 30 Nov 2013 Stevenson, Bryan.“Why are millions of Americans locked up?”. TEDTalks, 2012. Web. 30 Nov 2013 Wolff, Robert. Moore, Barrington. Marcuse, Herbert. A Critique of Pure Tolerance. Boston:Beacon Press, 1969. Print Read More