Good evening. Or a fine morning to you, whatever the case may be. I am working on a project in my spare time. Some of the data I am collecting might make for good blog posts.
Anyway, there are a few things whose trajectory I’d like to measure historically. I have come up ideas for most of them, but there are a few for which I wouldn’t mind if somebody had a better idea than the one I came up with. Here are the ones that are troubling me. From colonial times to the present, I would like to find proxy variables for:
1. Social cohesion (i.e., how strong it is, and how strong it is perceived to be)
2. Equality under the law (i.e., whether it exists, and whether it is perceived to exist)
4. Conflict between the Federal Government and the States
5. Conflict between the Executive and Judicial Branch
To use #2 as an example, obviously equality of the law increased with the Emancipation Proclamation, and again, as the suffragette movement gained strength. One potential measure for this would be percentage of the adult population that is eligible to vote. However, that leaves out other forms of inequality before the law, including (but obviously not limited to) other discriminatory restrictions on voting. No measure of any social value will be perfect, but good proxy measures for the five listed above would be appreciated. Bonus points if the data is readily available going back to the Colonial period.
Please elaborate for no. 3 as to what you possibly could mean by “Justice”. You probably don’t mean “philosophically” but rather some thing more literal, such as in regards to crime.
Welcome back to Angry Bear, Howard.
I purposely didn’t define Justice in this post. Crime can be measured in terms of the homicide rate. I don’t think there is national level data that is any good going back to the colonial era, but Pinker (http://lib.csu.edu.cn/pubnew/zndxtsgnew/dsy2016/2016tjsm/13rxzdslts.pdf) has good graphs for regional data going back that far. (See figures 3-13, 3-14, 3-15 and 3-16, which in turn come from Roth)
But… is that what I should be measuring? Are there better ways to think about justice, and to measure it?
Again, I have my ideas on these series, but other than vaguely pointing in a direction, I am trying not to bias readers who may have better ideas than mine.
you might try contacting US Dept of Justice for help. I’m thinking that you’re asking to determine the indeterminate — for example, how many convictions are decided when the subject is innocent? How many hangings or murders of blacks occurred in the years following the civil war (especially in the south) that weren’t prosecuted or for which the perpetrators weren’t even seriously sought by police?.. or how many found “innocent” by southern white jurors?
Then there are the Jim Crow laws… though legal they had nothing to do with justice.
Therefore I think you are obliged to define what you want “justice” to mean, otherwise it’s not objective, and if not objective then how do you measure it over time? .. your measures with time as a variable are thus also different subjective measures over time.
From a purely legalist stand point, you could use at all supreme court cases from the onset of the nation’s Supreme Court as a proxy for the proportion which found the law was or wasn’t upheld by majority court justices. Of course this excludes all cases that the Supreme court decided not to hear at all… thus letting district courts decisions stand pat. So you would have to include all US district court decisions for those that were taken further to be heard by the Supreme Court.
I would guess the Dept of Justice has a meta file somewhere for all federal court cases (from district to appeals court to supreme court that could be be programmatically analyzed for what proportion of federal court cases found the litigate to have violated the law. (of course you’d have to find somebody to write the program to do the analysis of the meta files.
That’s one type of proxy for one type of justice. The only way to have a purely objective measure is to use court decisions, but then you have to decide that all courts actually used justice … which I think doesn’t necessarily apply in many southern courts… that is the proportion in southern courts relative to racially motivated laws or defendants wouldn’t be the same proportions in other parts of the nation…
So I really don’t think there’s any objective measure of “justice” over time (or geographic location).
On measuring some aspect of “justice”… there are numerous professional and academic papers on the subject.
The issue is always how to define the metrics of “justice”, then how to measure them.
Here’s a recent overview of the entire question.:
I took psych 101 as a “humanities” elective, anything to avoid reading Shakespeare….. one of the few theories I recall: thin line between a crime and mental illness. How to define justice.
I took another Shakespeare avoidance elective where the profess was sure the freeways ran by the state universities so the national guard could get there faster.
How does a citizen relate to the control function in ‘society’? Justice?
Thank you for your comment. I was actually thinking certain Supreme Court cases could also serve as a proxy for conflict between the Executive & Judiciary (e.g., those that revolve around an executive action, and which rule against the executive branch) and some might serve as a proxy for conflict between the states.
WRT Justice, I didn’t define it in part because I don’t have a good definition that works today and works historically. At one point, Dred Scott was viewed as Justice. However, for the last few decades at least, we view that decision with horror.
Thanks also for the linked paper but I am a bit leery about the findings. I am not sure I buy, for instance, the idea that the most cases are settled out of court means that Justice is not being done because results are arrived at through negotiations between attorneys. It seems odd. On the other hand, the paper mentions another approach that makes sense to me. The time between a case being filed and being decided is, at least to me, a reasonable measure of whether Justice as defined at the time is being delayed. I imagine something like it should be measurable going back a long way.
Rather than using the emancipation proclamation, I would use the 13th amendment. The emancipation proclamation did not affect slaves except in areas under Confederate control. For example most of Maryland and Kentucky as well as Delaware were not affected. Lincoln only issued the proclamation under war powers. One could add the 14th and 15th amendments as well to you list, In fact for point #2 the 14th amendment would be a better proxy since it explicitly covers equality.
Thanks for the comment. I get your drift about Shakespeare. I like his writing, and having it explained in context is great, but everyone is always looking for their unique angle. In the class I took, we got to enjoy a film of a Russian troupe doing Hamlet in their language. A while into film, after noticing a variety of characters running around yelling “Gaaamlet! Gaaamlet!” I realized that there is no “H” sound in the Russian language. Sadly, that is the only thing I still remember from the class.
Is there an objective measure?
In the case of the 13th amendment slavery became illegal in all parts of the Union. This was Dec 6 1865. That is a more objective measure. Later you could take the repeal of separate but equal by the Brown vs Board of Ed. A bit more diffuse is the move in the 1960s to make the 14th amendment apply to the states as well, and thereby incorporating the federal bill of rights into state jurisprudence. State consitutions have bill of rights also but were interpreted differently than the federal bill of rights.
Justice has no objective definition. It is by definition a an abstract subjective term. It is a legal application of “fairness”.. what’s fair.
The concept of fairness changes by time and place. It’s a semi-collective concept. I say semi-collective since the collective depends on both a time and place of a subset of people…both in the global as well as domestic, even across city zones.
Because “justice” is a concept then it can’t be measured, either objectively or subjectively. You can only measure changes in concepts by geographically limited regions in time space. Each concept has variance — there is no absolute one concept at one time… since it differs also by place.
Even within a concept in one time and one place there is no absolute singularity of the concept, but many differing weights applied to a multiplicity of variables applied to the concept, when then actually creates a range of concepts within any one time and one place.
The testament to this is that even within any one time and one place we have at least two if not three or four different renditions of a concept — conservatives and liberals, atheist and religious beliefs A, or religious beliefs B… etc. Even within conservative or liberal camps the concepts differ in magnitudes (weights)… such that there may be a large multiplicity of these within even one group, much less across groups much less across space and across time.
it really doesn’t matter what concept one refers to … justice being the current focus — but any concept…. economic concepts, religious values concepts, societal organization concepts….. etc., etc.
So Mike… there is no measurable metric or proxy of the concept we refer to as justice .. either in subjective or objective terms, even in one time and one place.
If you were to pick for example just one court in one municipality the concept of justice applied at the court over time would change. Then pick some other single court in another municipality and the relation between the manifestations of the requisite court concept of justice at those two locations would differ significantly over time.. and if you randomize the time element, then the resulting relationship is none.. a scatter gram (e.g. no valid statistical relationship exists).
You would find the same result by picking one point in time (a day) and then finding the manifestations of the concept of justice over all courts in all locations on that singular day. The result would also be a scatter gram in the relationships among courts… or at best a low R^2 trend with more variation that the limits of the trend… e.g. no relationship.
Parenthetically., yesterday when I googled “metrics of Justice” I was surprise that 95% of the listed items were “criminal justice” .. though I shouldn’t have been surprised since most people think of “criminal” acts when they think of applying “justice”. But there’s a greater body of law over time and place applied to civil justice (tort law) than in criminal justice, so criminal justice is a smaller part of the concepts of manifestations of “justice”.
I forgot to add the problem of “fairness”… fairness for whom? The manifestations of what is considered “fair” depend on one’s value system — such that for example in the early concepts of “fairness” it was the leaders of the community (principality or “Mut”) that decided what was ‘fair’. the original concept of jurors was a group of citizens picked by the king or monarchial leader of the region governed … and he didn’t pick from the “masses”… but from his supporting peers.
This carried down to even the colonials and after that to the states where for example the wealthy and highly educated decided who the judges were to be, and it was the aristocracy of the south who decided who could be selected as jurists. In the North it was the same… blacks were excluded from being jurists (as were women, and males without sufficient property or wealth).
So who’s “fairness” was being used to decide what was fair?
On “fairness” as manifested by legal “jusice” if you go back to the earliy 18th century English system of law, the judges were all and only from among the wealthy elites with property and wealth… who meted out their decisions to favor their peers.
One possibility would be the end of imprisonment for debt (at least private debts)
on justice Anatole France said,
” The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.”
or there is the (widely held) idea, as expressed by Schindler to the Colonel [paraphrase] ” killing a jew is merely justice. forgiving him is power.”
then there was
sorry. i realized the subject was too big for me. only meant to say that the idea of “justice” has been used as an excuse by the powerful to do terrible things to those without power since the beginning of time. it is a word to be very suspicious of. especially when you find yourself using it.
As I said, I don’t have a definition of Justice. I was hoping there was a good one out there. One would think the purpose of the law would be to try to approximate that concept somehow. Heck, from what I can tell, the biggest groups of lawyers in the Executive Branch are in the Department of Justice. Is this just a bad joke by the attorneys?
i suspect most of the attorneys think of themselves as soldiers in the war for justice.
you won’t get a definition of justice from me. i believe justice is a dirty word used by tyrants to justify the crimes they commit against the weak.
no doubt there are sincere people who belive that justice is just the opposite: the protection of the righteous against the evildoer. but too often when those sincere people acquire power their “justice” turns out to be a badly focussed reign of terror against those they think threaten their enlightened rule.
no doubt the situation is more complex than i am painting it. i only try to warn people against assuming that their “justice” or their dear leader’s “justice” is what they think it is.
or as Anaximander said, “All things arise out of chaos through injustice one against the other and thither are they returned in retribution according to the order of time.”
How about re-framing the question (regarding measuring Justice), just to help brainstorm, as ‘how to measure INjustice’?
Howard, et. al. before you can measure “INjustice” or it’s convers, “justice”, you have to define the value system against which either is to be measured. Thus far it seems the comments have omitted this pre-requisite condition. This makes me think perhaps that everybody thinks their own values are the same as everybody elses, hence uniform in time and place. … a great fallacy of thought.
Coberly’s rendition of “justice” can be synopsized as “might makes right”. .. which is precisely the manifestation of the concept of jusice.
Kimel: “I am not sure I buy, for instance, the idea that the most cases are settled out of court means that Justice is not being done because results are arrived at through negotiations between attorneys.”
Justice Kennedy might set you straight, Kimel:
“The reality is that for the most part, criminal justice today is ‘a system of pleas,’ said Justice Anthony Kennedy on behalf of the court majority. Ninety-five percent of all convictions are the result of plea bargains, not trials, and the right to adequate assistance of counsel guaranteed in the Constitution cannot exclude the ‘central role plea bargaining plays.’ For the most part, plea bargaining determines ‘who goes to jail and for how long. It is not some adjunct to the criminal justice system. It is the criminal justice system,’ Kennedy said.”
— “High Court Expands Defendants’ Plea Bargain Rights,” All Things Considered, Mar. 21, 2012 http://www.npr.org/2012/03/21/149093334/high-court-throws-out-conviction-in-bad-lawyer-case
Also, about that Justice thing, Kimel:
“Another study finds few consequences for prosecutor misconduct,” Radley Balko, Washington Post, Mar. 8, 2017
You should get out more, Kimel, before expounding upon things you know absolutely nothing about. Such as law and the legal system.
roughly 90% are plea – bargained. Don’t plea bargain and you lose, you get harsher justice as you made them work.
as far as i am concerned plea bargaining is the same as coerced confession… under threat of torture (prison is torture).
that may not be exactly what the 5th amendment had in mind, but it did have in mind not requiring a person to testify against himself… against his conscience or faith.
i don’t know where that leaves us with the need to punish crime. i think fines might actually work better. except in the case of the criminally insane.
and i am aware (i think) that many “criminals” are so mentally low functioning that they might as well be insane.
so i don’t have an answer, but it makes me throw up when judges or ordinary people think that putting someone in jail for years is a reasonable punishment. we get in the habit of saying “ten years” or even “one year” because it is so easy to say and we don’t have to feel anything.
or anything we should be proud of.
So… my being skeptical of the claim that settling cases out of court means justice denied – is that supported or contradicted by Justice Kennedy’s quote that was intended to set me straight?
Justice and its manifestations may also be measured by the rate of incarceration… which assumes those incarcerated have violated a condition of law.. .which means they have received “justice” if one also assumes the law reflects “justice”.
With that in mind, then it would seem the US must have the most “justice” or the “most lawless” nation on the globe in which “justice” is fairly meted out..
Incarceration Rate per 100k Population
% of US
United States of America 693
Virgin Islands (USA) 542
Guam (USA) 469
American Samoa (USA) 382
Puerto Rico (USA) 349
US Territories, Average 436 63%
Russian Federation 450 65%
South Africa 292 42%
Virgin Islands (UK) 425
New Zealand 202
UK England & Wales 146
UK Scotland 141
Ireland, Republic of 79
UK: Northern Ireland 78
GB & former colonies 167 24%
Czech Republic 211
14 Nation EU Average 116 17%
Incarceration supposedly means “justice” has been served, depending however on what Justice actually means — and I’m sure there’s no consensus on this.
In the US, however it seems that justice has a very strong racial component:… does this mean blacks and Hispanics in the U.S. receive more “justice” or that they are more lawless?
Incarceration rate (per 100k), % of White
Hispanic 831 185%
Black 2306 512%
https://en.wikipedia.org/wiki/Incarceration_in_the_United_States, see Ethnicity table
One might even ask whether “justice” as manifested by incarceration rates depends on income status… such that the lower the income prior to being incarcerated the greater the level of “justice” received.
In median Income, 2014 dollars:
In 2014, Incarcerated males (prior income) Non-Incarcerated males (income):
Blacks $17,625, $31,245
Hispanic $19,740, $30,000
White $21,975, $47,505
Looks like a pretty strong effect of income on “justice” as manifested by incarceration in the U.S.
Here’s how it works, Kimel: What charges to bring is entirely up to the prosecutor, and the conversion from a trial system to a plea system is due to the modern custom of prosecutors of piling on a slew of charges, usually redundant but each one with a separate sentence if convicted. The plea bargains offered consist of dropping some of the charges in exchange for a guilty plea to one or two or three.
Suffice it to say that it is standard practice for prosecutors to offer more charges, or to drop a charge to what is known as a “lesser include charge” (e.g., manslaughter rather than vehicular homicide), if the defendant has a fancy lawyer as opposed to a public defender.
So I’ll let you figure out the answer to your question to me.
And btw, although Kennedy said in that opinion that 95% of criminal cases are resolved by plea bargain, I’ve read that the figure is even higher: 97%. Although of course it varies from, y’know, neighborhood to neighborhood.
I’ll add that a big impetus of the conversion to a system of pleas bargains as the sum and substance of the criminal justice system is the absurdly draconian modern sentencing laws for most crimes, including trivial ones.
So the dropping of charges in exchange for a guilty plea to one or two, or to a lesser charge, does operate, as Dale says, as what is effectively a system of compelled self-incrimination. That’s the purpose, in fact.
No-one can say that $h!t is “justice.”