Processes of Justice

Retributive Justice

Retributive justice refers to the subjectively appropriate punishment of individuals or groups who have violated rules, laws, or norms, and, thus, are perceived to have committed a wrongdoing, offence, or transgression.

Punishment

The idea of punishment is not focused on writing a wrong directly, it is meant to deter and act as applying a consequence to behaviour that is not right.

Punishment is distinct from redistribution (ex: giving back items that were stolen)

Punishment may be imposed by a third party or by the victim

What does retributive justice require

Requires an imposed response to the wrongdoing (the act rather than only the results)

Consequentialism

Punishment is ethical if it yields benefits for society:

1. Deterrence (individual or social)

2. Incapacitation (unable to re-commit behaviour)

Deontology

Ethic of duty, an obligation. Judges action as right ot wrong based on established rules and principles. Morality as rational.

Retributivism

Proportionate punishments

Retributivism

Requires justice to be restored, which requires punishment of the offender.

Proportionate punishment

Gives offenders what they deserve based on established principles, thus restoring justice

Consequentialist vs Deontological

Chiao: What is criminal law for?

Criminal law is less about retribution and more about upholding the state. Criminal law is a coercive, rule-enforcing institution, it’s a larger set of principles, the infrastructure that keeps society functioning. Criminal law at its most basic purpose is a supportive institution of this infrastructure.

Socially coordinating rule enforcement strategies that enhances social reciprocity and produces citizen’s senses of justice.

What is criminal law most useful fro

Criminal law is more useful for stabilising society’s functions that vindicating moral rights.

Defection from norms

Defections from norms/rules must be sanctioned if they are going to remain influential

Durability of institutions

Durability of institutions requires sanctions imposed on those who defect from institutional norms

Relative priority claim

Stabilising society is prioritized relative to other benefits/outcomes/uses of criminal law (including retribution)

Criminal law as distributive justice

How to allocate scare goods across society (goods = social advantage = resoucres, supports, protections)

What does criminal law stabilize

Criminal law stabilises legal rules and provides support/scaffolding to other areas of social advantage

Criminal law acts as support for what

Criminal law as a support to other public institutions and the advantages they provide. For example: Drivers licensing example - renewing you drivers license isn’t really a part of criminal alw, but if criminal law hadn’t instituted regulations and punishments for those who do not renew their licenses, people wouldn’t do it.

Criminal law and the state

Criminal law’s relative priority is to support the state through re-establishment of state’s authority to set and enforce social norms.

Elaine Craig

A feminist legal scholar at Dalhousie who brings a liberal feminist lens to her work. Her research examines what happens to sexual assault complainants during and after trials, and how the legal profession can cause unnecessary harm. Trials are difficult experiences, but Craid asks how much of this difficulty is unnecessary and preventable. She argues that some practices cause additional trauma and undermine procedural justice.

Who are criminal offences prosecuted for?

Criminal offences, including sexual assault, are prosecuted in the interests of the public, rather than on behalf of the survivor personally. this means that complainants cannot require a prosecution, and they may be compelled to testify even when they don’t want the process to continue.

Why continue if the complainant doesn’t want to participate?

Because the prosecution represents the public interest, rather than the complainant’s individual wishes

Craig focuses on the actions and responsibilities of:

Defence attorneys - How do they frame the case and question complainants? Do their strategies rely on prohibited assumptions or evidence?

Crown attorneys - When do they challenge inappropriate questions or evidence?

Judges - How do they enforce legal protections and prevent unnecessary harm?

Craig’s pragmatic approach

The legal process will not always be comfortable, but existing protections should be upheld to minimize unnecessary harm.

The rape shield provisions and related protections in sections 276-278

These address sexual history evidence, sexual reputation evidence, and access to complainants’ private records. For example, a complainants’s sexual history cannot be used to suggest that they were more likely to have consented or are less worthy of belief. These protections serve both to protect complainants and to support fair, accurate proceedings.

Craig challenges the idea that protecting complainants necessarily conflicts with the rights of the accused.

Due process requires the rights of the accused, but procedural justices also involves respecting the legal protections afforded to others participating in the process. Abusive treatment of complainants can undermine fairness and truth-seeking.

Gaps between the laws on the books and what happens in practice

Craig identifies a gap between the laws on the books and what happens in practice. Advancing procedural justice requires legal professionals to uphold existing protections more consistently. The key question here is how do we meaningfully respond when legal protections exist but are not properly enforced?

Samuels-Wortley

Explores racial discrimination within the criminal justice system. Her paper focuses on Black and Indigenous youths’ experiences with police, placing their accounts alongside police perspectives and policy developments in Toronto. She draws on the CRT!

Critical Race Theory

Understand law as both a product and promoter of racism. It challenged claims that law is race-neutral by examining how law develops within, and helps reproduce, a society shaped by racial inequality. From this perspective, racism is woven into the nation’s institutions and history, this is connected to racial inequality in the formation of Canada.

CRT requires a system level analysis

The issue is not simply whether particular individuals have racist attitudes. Legal institutions and routine practices can reproduce racial inequality regardless of hoe individuals understand their own intentions. Because the problem is systematic, changing individual attitudes alone is insufficient.

CRT includes different approaches to social change

The discussion of Sauels-Wortley’s paper emphasizes community-based support and responses beyond conventional criminal justice mechanisms.

Police are gatekeepers to the legal system

Police are often people’s most direct point of contact wth the CJS. Encounters may include school visits, traffic stops, questioning, or arrests. Many people interact with police more often than with judges or other legal actors. Police therefore play an important role in shaping how young people understand their relationship to law.