Commonsense justice is best seen as reflecting the idea of “common” in the expression “common law.” In the 12th century in England, King Henry II instituted far-reaching reforms of the English legal system, one of which was to replace a system of justice in which local custom played a major role with a system based on countrywide norms and customs. (That was the goal, anyway.) These norms and customs would be not local but “common,” that is, accepted, followed, and applied in common by all citizens. Commonsense justice is thus the sense of what is just that is common to all citizens, to everyone. The term was riveted into the discourse of the world of criminal justice by Norman Finkel’s 1995 book of that title on the role of juries in the administration and enforcement of criminal justice. However, there are other important places in the functioning of the criminal justice system where some idea of commonsense justice is alive and well. Moreover, there are numerous questions about exactly how to understand the idea of commonsense justice, of what the status of such a thing is assuming it exists, and of how it relates to criminal justice understood as a demand that morality places on all actual criminal justice systems.
The bare idea of criminal justice—the idea that a person who attracts the attention of the criminal justice system should be treated exactly how he or she deserves to be treated—is broader in scope than just the actual criminal trial itself. However, it is during the trial that the question of whether and how commonsense justice contributes to criminal justice in the sense of “just deserts” becomes acute. The ideal is clear. As Antony Duff has argued, the criminal trial is the device by which citizens call each other to account for violations of the norms that they have accepted as governing the relations between them, the common norms. So understood, the ideal of the trial is violated when a defendant is judged by standards that are not “common” in that sense. To make sure that a defendant is judged by common standards, he or she should be judged by a person or persons applying those common norms—that is, a person or persons drawn at random from the citizenry. The criminal law with the prohibitions and duties it imposes represents all citizens and applies standards that are the standards of all: citizens then make the final determination of whether those standards have been observed or violated. This is commonsense justice in action.
This ideal comes under pressure from many directions. The law itself is ever more technical, ever more complex, ever more specialized. The variations in human behavior are infinite. Legal draftspersons devote more and more time to anticipating as many as possible of these variations in the hope that no wrongdoer will escape the grasp of the law because the law does not cover their particular actual situation and behavior. Given the traditional division between the judge as the arbiter of what is the law and the jury as arbiter of what is fact, the role of the arbiter of the law threatens entirely to engulf that of the lay fact finder. In some cases (complex financial frauds are an obvious example), both the law and the matter of what the facts are will be staggeringly complex. Some jurisdictions have given up, therefore, on the idea of commonsense justice in these cases, and created specialized courts with specially qualified judges as final decision takers. But these are specialized cases. When in an ordinary criminal court the concept of “intention,” for example, is given such a complex analysis by a judge that a lay jury cannot understand what concept they are supposed to be applying in determining whether the defendant acted intentionally, something has gone badly wrong. Commonsense justice is being denied.
Another difficult issue is the relation between commonsense justice and scientific evidence in a criminal trial. There are clear cases. Science is going to tell the jury whether the stain on the carpet is a blood stain or spilled cabernet. Science is going to tell us whether the dirt on the defendant’s boot is of the same chemical composition as the dirt of the victim’s driveway. Other cases become much more murky, especially when the scientific evidence relies on probabilistic reasoning. The prosecutor asks the jury, “How likely is it that the dirt is on the defendant’s boot for any other reason than that he walked down the victim’s driveway?” How is the jury to deal with this? On one level, it is a factual matter and empirical research can give the answer. On another level, the jury makes a determination drawing on their general knowledge of how folks, and how folks like the defendant, behave in this or that circumstance. Is this commonsense justice properly in play, or improperly in play?
A third kind of case where commonsense justice seems to clash with technical expertise concerns the role of social-scientific evidence, especially evidence from psychology and psychiatry. People on juries have to make judgments of credibility all the time: who is lying, who is telling the truth. People’s judgments on these matters are not reliable. In domestic violence cases, especially where the victim kills or attempts to kill the attacker, psychology and psychiatry have done much to help both judges and juries understand how to interpret patterns of behavior. People understand much better than they did the effect of alcohol and of psychotropic drugs on behavior. So do juries have to yield their decision-making responsibilities to the experts as they do in the case of the chemical composition of the stain on the carpet? Commonsense justice would say, No. In the end, the concepts being applied are not scientific, but “folk” concepts.
The criminal law also seems to make a tacit appeal to commonsense justice when its standards for (un)acceptable behavior employ the idea of “reasonableness.” Conviction might turn on whether the defendant applied reasonable force, or had reasonable grounds for believing this or that, or whether a reasonable person in the defendant’s circumstances would have been aware of a risk. Fundamentally (as with any part of the criminal law there are complexities that have to be ignored here), the judgment of reasonableness is one for any citizen to make; it is an application of commonsense justice. Some scholars deny this. They would see judgments of reasonableness as specialized cases of probabilistic reasoning, requiring a properly defined relationship between evidence and conclusion.
The most difficult cases for commonsense justice are those in which popular opinion is at odds with reflective opinion. Laws prohibiting obscenity, for example (assuming here what is of course controversial, that there should be such laws) often deploy the concept of “community standards”—that the community’s common norms about what is acceptable and what is not should determine whether a particular film or play or novel is criminally obscene. Actual beliefs on this topic vary considerably between and within locales. Famously, in 1957 in the United Kingdom (UK), a Royal Commission recommended decriminalization of homosexual acts between consenting adults. A senior judge, Patrick Devlin, took the unheard of step (for a member of the UK judiciary) of publicly opposing this recommendation. To support his view he appealed to the visceral disgust felt by ordinary people toward these acts, and defended the approach of basing the content of the criminal law on such feelings. In response, H. L. A. Hart urged the importance of the distinction between positive and critical morality, the moral beliefs people actually held and the morality that represented a more reflective and critical assessment of those actual beliefs. Critical morality in Hart’s view would reject Devlin’s popularism and support the recommendations of the Commission. Acceptance of the commission’s recommendation is a victory for, not a denial of, commonsense justice.
This case illustrates the greatest fear that arises concerning the role in criminal justice of commonsense justice—that it represents popular opinion at its ethical worst, that to erect criminal justice on such a basis is bound to result in criminal injustice as subtended by critical morality. This fear is exacerbated by the tendency of law-and-order politicians to play to their political base by rooting criminal justice policy in moral panic. Moreover, according to critical legal theory, appeals to commonsense justice and to the reasonable person can be, whether consciously or unconsciously, instruments of marginalization and oppression of disadvantaged groups. But do these entirely proper concerns mean that any idea of commonsense justice as a force in the criminal law must be abandoned?
Criminal justice is threatened when the norms of the criminal law are exclusionary, whether of the interests and rights of marginalized groups in society or whether of the interests and rights of those who happen not to support the governing political party. However, criminal justice cannot be exclusionary all the way down without sacrificing legitimacy. The criminal justice system must continue to be based in commonsense justice, even if in a pluralistic society much care must be taken to ensure that the norms of commonsense justice really are common. Studies have shown, in fact, that with respect to the traditional core of crimes people’s intuitions about relative severity and about proportionality of punishment are surprisingly stable.
- Devlin, Patrick. 1965. The Enforcement of Morals. Oxford: Clarendon Press, 1965.
- Duff, R. A. Answering for Crime: Responsibility and Liability in the Criminal Law. Oxford: Hart Publishing, 2007.
- Duff, R. A. Trials and Punishments. Cambridge: Cambridge University Press, 1986.
- Finkel, Norman. Commonsense Justice: Jurors’ Notions of the Law. Cambridge, MA: Harvard University Press, 1995.
- Hart, H. L. A. Law, Liberty and Morality. Oxford: Clarendon Press, 1963.
- Milsom, S. F. C. Historical Foundations of the Common Law. 2nd ed. London: Butterworths,
- Robinson, Paul H. and Robert Kurzban. “Concordance and Conflict in Intuitions of Justice.” Minnesota Law Review v.91 (2007).
- Robinson, Paul H., Robert Kurzban, and Owen D. Jones. “The Origins of Shared Intuitions of Justice.” Vanderbilt Law Review, v.60 (2007).
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