What is Justice?

Seems to be a fair question these days. One wonders how we define it and how it is achieved in theory and in practice.

Given the massive swings we have seen, I have been thinking a fair amount about justice over the past several years – what it really is and who gets to decide.

Philosophers define justice variably - as harmony (Plato), fairness (Aristotle, Rawls), contract-keeping (Hobbes), rights-protection (Locke), moral law (Kant), utility (Mill), or power dynamics (Foucault).

I would say that justice is assuring that the basis for determination of guilt or innocence is rational and impartial (the people’s role) and that the guilty are punished and the innocent are not (the role of the system).

In an era where trust in legal institutions wavers, the idea of a dual justice system becomes more of a reality than just an idea. One wonders if that two-tier system offers a potential for an alternative – a system of formal and informal justice. I think such a thing offers a compelling framework for addressing abuses of power.

The formal one consists of actual constitutional jurisprudence with rules of evidence, judges, and a trial of a jury of peers, and a sentence or acquittal but there should also be an informal system of public judgment, one in which the public can punish the brining of legal processes when none are indicated, when the target is wrongly convicted or reward the target of a prosecution that was brought improperly or punitively regardless of the decision of the court.

The examples I am thinking of are 1) the "34 Felony" conviction of President Trump under extremely unique, prejudicial, political – and one might say, corrupt - circumstances and 2) the fact that bad actors in the Russia collusion hoax have not been punished – Adam Schiff comes to mind.

The formal system, rooted in constitutional jurisprudence, relies on evidence, judges, and juries to deliver verdicts. Yet, when legal processes appear politically motivated or unjust, as seen in cases like Donald Trump’s 34 felony convictions or the Russia collusion controversy, the public often feels powerless. An informal justice system, driven by public judgment and mechanisms like shunning, could empower society to hold bad actors accountable and reward those wrongly targeted. However, while public shunning holds potential as a social corrective, it must be carefully structured to avoid descending into mob justice.

Formal justice, with its rules of evidence and due process, is the bedrock of a fair society. It ensures that individuals, whether ordinary citizens or high-profile figures like Trump, face consistent legal standards. Yet, the system is not infallible. Trump’s 2024 conviction on 34 counts of falsifying business records, tied to hush money payments, sparked outrage among supporters who viewed it as a politically driven “witch hunt.” Some legal scholars argue the case followed due process, but that only takes a “correct process” view – I followed all the instructions to paint the exterior of my house, but I used interior paint would be an example. Other scholars note the unique and contrived ways the laws were construed by Alvin Bragg and Justice Juan Merchan.

Similarly, the Russia collusion probe, accurately labeled a “hoax” by critics, produced no definitive evidence of campaign collusion but led to prolonged scrutiny of figures like General Mike Flynn. In both cases, the formal system’s outcomes left many feeling justice was incomplete - either too harsh, too lenient, or completely absent.

Enter an informal justice system, where public judgment could serve as a counterbalance. Shunning - social ostracism through boycotts, public criticism, or exclusion - offers a way to punish those who misuse legal processes or reward those unfairly targeted. In Trump’s case, supporters have already embraced an informal “reward” system, rallying behind him with campaign donations and vocal support, seeing him as a victim of judicial overreach. Conversely, shunning could target prosecutors like Alvin Bragg, perceived by some as weaponizing the law for political gain. In the Russia probe, public frustration highlights a desire to shun figures like Adam Schiff or media outlets accused of hyping a baseless narrative. Such actions could deter future abuses by signaling that manipulating justice carries social costs.

Public shunning as part of an informal justice system, could check legal abuses but risks becoming mob justice without an educated populace capable of critical thinking and a devotion to truth over political gain. Historical cases like the Salem witch trials and modern cancel culture show shunning’s potential to harm the innocent when driven by misinformation – but when disciplined, it could amplify the public’s voice, deter judicial overreach and reward resilience against it. However, it must complement, not undermine, formal justice. A dual justice system, blending the rigor of courts with the moral weight of public judgment, could restore trust - but only if shunning is wielded with precision, not passion.

A truly free society must have laws but must leave room for the people to express their own judgment. I think that is the brilliance of the Constitution of the United States – it left that room for people to simply disagree when we saw injustice and choose not to accept it.

Maybe it is just a dream that by empowering society to hold the powerful accountable, we can ensure justice is not just legal, but truly just.