Justice & Law = Distant cousins

A few recent experiences have brought home how far apart the law and justice are…

Film and television regularly provide evidence of this. There are all the legal shows, A man for all seasons, A few good men, and A dry white season to name a few. These all being fiction, one expects contradiction and conflict to encourage viewing. However, it was being a witness in a civil case which made me realise that the fictional depiction of this issue is reflective of reality. The same day, I was involved in a challenging debate with a legally trained historical-fiction author trialling one of my historical characters for war crimes. 

These two experiences served to highlight the difference between historical interrogation which aims for the truth and legal interrogation which seems to forego the truth to win a point. While ‘good’ historians engage with grey areas working to make sense of them, the law in trying to define aspects of life and relationships cannot deal with fluffy or hazy statements. 

Historians understand the fickleness of memory, lawyers seem to think memory is fixed even after years. What makes it work in fiction is that we see the grey areas and can fill in the gaps of the legal encounter in court. In real life, the gaps remain and one can only hope and pray that those making the judgement can see through all the legal posturing and that in the end justice will prevail.

Until 2019, more politicians studied law than history according to this study https://studee.com/media/mps-and-their-degrees-media/

Does this explain why history seems to replicate itself and we, as humanity fail to learn from the past? Now that more seem to be studying history, are we likely to see more justice? Or is the curriculum so politically influenced by legal posturing and simplifying matters to clean-cut issues (either/or) that grappling with the complexities of human nature and cultural diversity will remain the jurisdiction of historians? That Politics as a subject dominates the qualification ranks for politicians raises other questions – for another day.

For now, I ponder how we bridge the gap between justice, truth and the legal process.

2 thoughts on “Justice & Law = Distant cousins

  1. 1. Please do not judge the law by what you see in movies. As a lawyer it seldom bears any fair resemblance to the actual processes of the law or concepts of proof.
    2. Judging the law by an experience of being a witness is not going to give the writer the chance to understand the process, only a particular experience of a slice of a process.
    3. The key to understanding the difference between law and history is that legal proceedings have a different role.
    – Their job is to decide on the balance of probabilities (or beyond reasonable doubt in criminal cases) whether version of history X is true. Historians can collect all evidence good, bad and indifference, and attach appropriate weight to each element and have the luxury of being able to say – we do not know, there is not enough evidence, but there is some evidence that points towards X or Y. The legal process does not have that ability – it has to find for one side or the other (except in the Scottish ‘Not proven’).
    – Because it is about proving one side or the other, not an open exploration of evidence, they are collecting evidence not with open minds, but to prove one side or the other.
    _ Well grounded general rules exist, which exclude some types of evidence, which historians tend to use a lot, such as hearsay evidence. Historians can take into account peripheral evidence eg what X told Y about an incident, or what the newspapers said happened, whilst recognising the issues of reliability of sources. The legal process has some clear rules that exclude some of these more unreliable sources, to simplify things. That can frustrate an historian who would include such sources, but just give them little weight. The processes of cross examination, whilst a witness might not like being on the receiving end are there because historical experience has shown its utility (and limitations).
    Conclusion – this is a short repost to say, I do not think it is fair to say law has less connection to truth than historical processes. It is fair to say that law and history are doing different jobs, so will include difference sources of evidence, evaluate them differently, so the point that law and history see things differently is well made, but judging which is best is like judging apples vs potatoes. They do different things.

    • Dear Chris
      Many thanks for your thoughts on law and history. It’s much appreciated.
      I am very aware that TV and movies don’t reflect reality – what was surprising and what was behind this post was that they were actually so similar. Your comment about oral accounts is really interesting – as it was around the witness/questioning process that got me reflecting on the differences.Having worked with law students at university before, I have always thought there are good overlaps between the two fields/subjects, it was the actual courtroom experience that highlighted the differences and there’s no knowing how the judge/adjudicators used either the documents or the comments in making their decisions. There’s so much to unpick.
      Thank you once again for putting the other side thereby stimulating thought. And also for taking the time to read my blog.
      best wishes
      Anne

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